This journal article opens with a hypothetical: The main gist is that you are a successful businessman who one day comes to the office to find a first-year employee sitting at your computer. He is lifting exact portions of your work to incorporate into his own. He argues that because he is new, he should be entitled to borrow and quote your work, even if his final work seems to have your “signature style.”
You would never tolerate this, correct? It would be considered breaking and entering and intellectual property infringement. So why, then, should the music industry tolerate this rampant behavior that occurs through digital sampling?
The author points to the Bridgeport Music court case as what finally stood up for the talents and creative ideas of artists who work to attain their right “signature sound”—the sound that makes them top-selling acts. This piece is written in full support of the Bridgeport decision, with the perspective that the unethical and unlawful use of prior work amounts to copyright infringement. It covers the history of sampling technology, the response of the courts and the music industry to sampling, an analysis on the debate of whether sampling is “art” or “theft,” and lastly, a proposed solution to foster creativity while protecting against unauthorized sampling.
While all of these categories have relevance to my project, I was primarily drawn to the section on sampling as “art” vs. “theft.” In this, three myths are addressed and debunked: one, that sampling is analogous to “borrowing” work owned by others; two, that sampling is an art form and, therefore, samplers should be entitled to freely use copyrighted material; and three, that for a proper balance in copyright law, more protection should be granted to samplers. Every “myth” offers a variety of arguments presented by “free digital sampling” advocates. Each, however, is followed by a critical, thought provoking, and analytical assessment that fully shoots down any point in support of free sampling.
Most sources that focus on sampling and its relation to copyright law seem to draw criticism on the Bridgeport decision and subsequent infringement cases. It was really helpful to have an article that fully supported Bridgeport and the notion that all digital sampling, regardless of length or clarity, needs copyright clearance. Any form of reasoning I could come up with to defend the songs I created was covered—and each was fully and thoughtfully undermined. This adds a particularly interesting aspect and perspective to my project, my songs, and their copyright implication.
“15 Megabytes of Fame” explores the rise of the new genre called “mash-ups.” This comment covers the definition and historical background of mash-ups, an analysis of mash-ups in comparison to traditional digital sampling and appropriation art, a discussion on the simple discrediting of mash-ups, and lastly an analysis of mash-ups under fair use precedents. In particular, the Bridgeport Music court decision is used to assess the standing of mash-ups and what the decision means for the genre’s future. While, as a producer of mash-ups, I have a clear understanding of what mash-ups entail, it was nice to get a standard definition by legal review. More importantly, as a producer, I would potentially call upon fair use, the Bridgeport case, and my differentiation from appropriation art to help defend and support my music. At the same time, counter points are addressed, which only help my project by examining every perspective on mash-ups.
This piece defines mash-ups as distinct derivatives of sampling. Instead of incorporating a sample into a new work, mash-ups usually consist of two preexisting recordings. The remixer, in the most common cases, lays the vocal track from one song on top of the instrumental of another. This amalgamation leads to a unique song. A key element to a mash-up is the easy and immediate recognition of the prior recordings.
It is pointed out that in the Bridgeport case, the court stated that samples are used solely to “1) save costs, or 2) add something to the new recording, or 3) both” (pg. 4). This rests only on the economic aspects of sampling—the artistic value isn’t counted. Mash-ups sample out of necessity; they don’t attempt to hide prior recordings nor attempt to claim ownership. Mash-ups are created in a manner as to require listeners to immediately recognize appropriated works; the creator never intends to portray any notion of “new” originality.
Sound copyrights are protected in terms of its fixed medium, originality, and expression. A copyright owner must approve all derivative works that rearrange or remix. Mash-ups, therefore, should fall as infringing under all of these counts. The only way, it is argued, to defend mash-ups is through fair use. This piece explains how if the transformative nature of mash-ups comments, criticizes, or parodies the underlying work, fair use can be successfully employed to defend them.
All of these points, as aforementioned, have relevance to my project, adding value and different points of view.
This article focuses on trademark law opposed to copyright law. While trademark and copyright are distinct, the argument for the protection of one has significant bearing on the argument for the protection of the other. Since this article argues against the protection of trademarks in political speech, it will have an impact on the topic of copyright in political speech, which contributes to the larger picture of copyright and the public interest.
Smith argues that the First Amendment should protect the use of trademarks in political campaigns. Trademark owners argue that use of slogans diminish the product's selling power by way of multiple associations. While such an argument is valid in holding a commercial organization responsible for infringment, it does not apply to political campaigns. This article holds that "the First Amendment should shield politicians' use of commercial slogans in speech that promotes their candidacies or conveys their positions on issues of public importance." In the discussion of campaign speech, Smith notes that the Supreme Court consistently supports the First Amendment's purpose to protect "free discussion of governmental affairs," which includes discussion of candidates. She also notes that political advertisements cannot be censored. Smith acknowledges the view that "the First Amendment does not protect all political speech; the theft of or trespass onto the mark constitutes a harm that should trump First Amendment protection even of political speakers; and a strong public interest in protecting trademarks exists." She rebuts this, however, by arguing that candidate speech deserves the most protection because it is imperative to the democratic process of self government. The article's ultimate conclusion is clear; trademark law trumps First Amendment protection if commercial use of a mark causes confusion or deception in the market, but First Amendment rights win when a mark is used for what should be highly valued and protected political speech.
As mentioned above, this article deals with trademark law opposed to copyright law. However, the argument against trademark law trumping First Amendment rights can transfer to the realm of copyright. It provides strong affirmative support for the position that copyright law should serve the public interest. This line of support focuses on the specific level of political campaigns, through which the public receives important information and can then partake in self government, a highly valued Constitutional right. Protecting speech, and limiting copyright, in such a realm as politics benefits the public interest.
Copyright (c) 1999 Publications Council of the College of William and Mary
William & Mary Bill of Rights Journal
8 Wm. & Mary Bill of Rts. J. 241