Grey Area: How Recent Developments in Digital Music Production Have Necessitated the Reexamination of Compulsory Licensing for Sample-Based Works

June 16, 2012

The current structure of the Copyright Act has failed to create a fair market system that is an effective vehicle for ensuring the progress of the arts. Federal District Courts have adopted inconsistent approaches to sampling law, precluding a legal consensus on business practices in a national music industry. Digital sound editing and compositional technology is developing at an unprecedented rate. Meanwhile, sample-based music and the marketing associated with it continue to carve out an increasingly significant niche in the national economy.
The time is right for Congress to revisit the Copyright Act. This Comment examines the current situation in sampling law from constitutional, judicial, and economic perspectives. It argues that Congress should take the opportunity provided by the nexus of legal dissonance and public salience to modify the Copyright Act in a way that accommodates transformative, sample-based, musical productions. In the interest of progress, this action must facilitate the broadest use of recordings in order to further creative expression. It must also continue to protect the financial interests of artists in their works. This Comment proposes that the most effective way to ensure a proper balance of these issues is to modify the mechanical licensing provision of the Copyright Act19 and include a compulsory licensing system for the use of samples in transformative works.