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Vanderbilt Journal of Entertainment & Technology Law

First Page

100

Abstract

The law of copyright has its origins in the constitu- tion of the United States, which grants congress the power "to promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discov- eries. To carry out this mandate, Congress passed the Copyright Act, establishing the basic rights to be enjoyed by the copyright owner, including the right of adaptation, and the right of reproduction. ''

Sampling seems to be a clear violation of these exclusive rights. However, Congress has provided an excep- tion, the affirmative defense of fair use, allowing activity- which would otherwise be infringing to not only be allowed, but encouraged.

The "fair use" defense has been characterized as, "an equitable rule of reason to be applied where a finding of infringement would either be unfair or undermine 'the progress of science and the useful arts:" This provision has been used repeatedly over the years to justify parodies, educational use, de minimis uses, and more.

But traditional fair use analysis in the area of sam- pling has produced mixed results, due mainly to the fact that most, if not all, sampling cases are for commercial gain, and they tend to take the most recognizable portion of a musical composition (a highly creative work). Thus, the tra- ditional fair use analysis is doomed before it even gets off the ground because three of the four factors will undoubtedly weigh against the sampler.

This comment proposes a modified version of the fair use analysis of section 107 of the Copyright Act and a modified version of the compulsory license provisions of section 115 of the Copyright Act, in light of the realities of today's music environment and authorship, as well as the underlying purposes of our copyright laws.

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