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Vanderbilt Journal of Entertainment & Technology Law

Ronald Gaither

First Page

195

Abstract

Digital samples are to rap music as precedent is to the practice of law. Lawyers, mindful of the principle of stare decisis, mine court opinions for arguments to support legal theories. Similarly, rappers use the lyrics and musical arrangements found in previously recorded works to spin out new and creative pieces. But where-as no one worries when a lawyer quotes pieces of old case law to fashion her arguments in a novel case, rappers' heavy reliance on digital sampling routinely puts their community front and center in a debate over copyright infringement...

Considering the severity of most criminal penalties for infringement--anything from huge monetary sanctions to prison time--the uncertainty surrounding sampling poses a significant threat to the rap industry. In an attempt to alleviate some of that uncertainty, this Note explores the criminal provisions of the Copyright Act and the ways in which these provisions have been applied (or misapplied) to digital sampling. It begins by tracing the historical background of criminal infringement as embodied in the Act. It then describes the development of digital sampling and its impact on the music industry, particularly the rap industry. Next, it surveys what qualifies for protection under the Copyright Act and discusses the rights afforded to artists who hold valid copyrights. The analysis then turns specifically to § 506 of the Act, using case examples to show how ambiguous language contained in that section threatens to change the way artists perform their craft. Finally, the Note concludes that the proper application of copyright principles to digital sampling requires uniform adoption of § 506's "specific intent" paradigm when handling cases involving alleged criminal infringement of copyrights.

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