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Journal of the
Music & Entertainment Industry Educators Association
Volume 12, Number 1 (2012)

Unfair? The Unique Status of Sound Recordings under U.S. Copyright Law and its
Impact on the Progress of Sample-Based Music

Reynaldo Sanchez
University of Miami

Introduction

    On June 3, 2005 in a United States federal courtroom in Nashville, Tennessee, seven words disrupted the age-old, natural cycle of musical development: “Get a license or do not sample.” At the heart of the case was a sample of a common, three-note guitar riff from the introduction to the George Clinton funk song Get Off Your Ass and Jam. The sampled portion was sonically altered and repeated five times in the background of the song 100 Miles and Runnin’ by the hip-hop group N.W.A. 100 Miles was also featured on the soundtrack to the film I Got the Hook Up. In this pivotal case, the Sixth Circuit Court reversed a lower court ruling that the use of the sample was de minimis4 and established a bright-line rule5 for digital sampling. The three-judge panel concluded, “We do not see this as stifling creativity in any significant way.” This article intends to show that while the court was technically correct in its assessment of the Copyright Act in relation to Sound Recordings, the decision exposed a flaw in the Act itself. Namely, as currently defined, Sound Recordings are fundamentally different from other categories of works in that they do not, and in fact cannot, meet the same minimal creativity requirement for copyright.  The “idea/expression dichotomy” is not relevant to Sound Recordings because unlike every other category of works, they are not the result of an expression of ideas fixed in tangible form. They are strictly the result of fixation regardless of the nature, quality, and originality (or lack thereof) of the sounds embodied therein.

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