The moment is seared into my memory. It was 1990 and I was 13. It started as a normal Saturday morning, which at that time consisted of watching one of my favorite television shows, “Saved by the Bell.”  During a break from the show, a music video came on. At the time, I was a fan of M.C. Hammer, the Beastie Boys, and Run D.M.C., but I had never heard or seen anything quite like what I saw on television that morning, the music video for “Ice Ice Baby” by Vanilla Ice. Being only 13 years old, my musical taste was limited and my music history was lacking, but I knew one thing: I loved that bass-line. Shortly thereafter, “Ice Ice Baby” became a smash hit, at least partially due to the catchy bass line. Vanilla Ice and his disc jockey (D.J.) eventually admitted they sampled “Ice Ice Baby[‘s]” bass line from Queen and David Bowie’s song “Under Pressure.”While this was my first knowing exposure to sampled music, musicians have built upon prior works of other musicians since at least the eighteenth century.Classical composers such as George Frideric Handel and Johann Sebastian Bach borrowed, re-arranged, and re-organized previously known works to create new musical compositions.In fact, Handel’s utilization of other’s musical compositions stirred debate in the late eighteenth and early nineteenth centuries about whether such practice was proper and ethical.  Essentially, those debates mirror the debates happening today surrounding a similar practice – musicians of all genres sampling other musicians’ sound recordings in their new songs. Sampling occurs when one musician takes parts of another musician’s sound recording and transposes it into his or her new sound recording. Although the debate regarding Handel’s practices was over copying “musical compositions” as opposed to “sound recordings,” the question is the same – how should the law strike an appropriate balance between protecting musicians’ copyrights while also promoting the creation of new and innovative music?

In the United States (U.S.), the Copyright Act provides protection for “original works of authorship fixed in any tangible medium of expression . . .” The U.S. Copyright Act expressly lists “musical works” and “sound recordings” as “works of authorship” appropriate for copyright protection. Initially, it is important to understand that within any song there are two distinct copyrights: the “musical works” right and the “sound recording” right. While the U.S. Copyright Act does not define “musical works” because the definition was “fairly settled” at the time of the law’s enactment, “musical works” means the musical composition, or the notes and lyrics of the song apart from any particular recording of the song. The U.S. Copyright Act defines “sound recordings” as “works that result from the fixation of a series of musical, spoken, or other sounds . . .” and grants the copyright holder the exclusive right to “reproduce the copyrighted work in copies or phonorecords . . .” as well as “prepare derivative works based on the copyrighted work[‘s]” “musical work” and/or “sound recording.” In the sampling context, to determine whether one musician has infringed upon another musician’s copyright in his or her “musical work” and/or “sound recording,” courts traditionally determine whether: (1) the plaintiff has a valid copyright in the work; (2) actual copying occurs; and (3) the two works are “substantially similar” to each other.  The “substantial similarity” aspect of the infringement test will be detailed in Part II(B)(1) of this paper.  As will be seen below, the “substantial similarity” test for infringement, even though it is the pre-eminent test to determine copyright infringement, has two problems when it comes to musical composition and sound recording sampling. First, the standard is too vague for artists to confidently know whether their new songs, utilizing sampled sound recordings (which also inherently utilize the musical composition), will infringe the underlying copyrights. Second, in many instances the amount of copyrighted work taken from the underlying song is insignificant to the new song as a whole. Due to these issues, it can be argued that current copyright law does not meet the needs of artists attempting to utilize sampled music, nor does it meet the needs of copyright holders who desire to control the use of their works. Unfortunately, the resulting lack of clarity in the law negatively impacts society as a whole because, as many artists attest, innovative and transformative sampling is not happening in music today due to copyright infringement fears.

In attempting to provide a bright line rule regarding sound recordings, sampling specifically, as well as to provide stronger protection for copyright holders, the Sixth Circuit for the U.S. Court of Appeals rejected the “substantial similarity” test to determine actionable infringement of sound recordings. Instead, the Sixth Circuit instituted a per se standard for sound recording infringement. In Bridgeport Music Inc. v. Dimension Films, the Sixth Circuit held that any sampling of another’s copyrighted sound recording, no matter how de minimis, automatically constituted copyright infringement. While a split among the circuits remains intact, scholars across the board have argued that the Bridgeport Music decision was an incorrect interpretation of Section 114 of the U.S. Copyright Act and should not be followed. Additionally, one subsequent court, in the Eleventh Circuit, has expressly rejected the Bridgeport Music analysis.

In cases where a plaintiff copyright owner proves a defendant infringed his or her copyright in a sound recording or musical composition, a defendant typically has the ability to assert two defenses: “fair use” and “de minimis” use. In codifying the fair use defense, Congress recognized that some purposes, such as criticism, comment, news reporting, and teaching are so important and so aligned with the purpose of the Constitution’s copyright clause that they deserve legal protection.

Commentators and scholars who understand the problems surrounding sampling, the infringement test, and the applicable defenses to a copyright infringement suit, have offered many suggestions on how to improve U.S. copyright laws in order to achieve a more productive and fair legal system. Many of the suggestions fall into two groups. First, some scholars and commentators suggest instituting a compulsory licensing scheme whereby artists are legally mandated to license their sound recordings for sampling purposes. In return for artists granting a license of their sound recordings to other artists, licensor artists would then receive structured compensation from licensee artists. Second, other scholars and commentators highlight the option of strengthening “fair use” defenses as a way to facilitate increased sampling.

This article will review the suggested improvements to the U.S. Copyright Act, particularly focusing on how some of the commentators’ ideas likely conflict with international moral rights concepts and laws, and how such international moral rights laws will directly affect any attempt to implement more productive sampling laws in the U.S.  Specifically, international treaties, like the Berne Convention, give authors of “musical works” (musical compositions) the right to “object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.” Another global treaty, the World Intellectual Property Organization (WIPO) Performances and Phonograms Treaty (WPPT), provides moral rights protection to musicians in their sound recordings. If the U.S. attempts to implement a compulsory licensing scheme or strengthen its fair use laws, without the direct involvement of the international community, how will those legal changes interact with international treaties and norms? Moreover, due to the ease of digital media file distribution over the internet, it is highly impractical to have one song be legal in the U.S., under a fair use defense or a compulsory license, and illegal in the rest of the world.

Accordingly, any congressional or judicial action attempting to facilitate sampling through the weakening of a copyright author’s rights will face practical as well as legal challenges on a global scale. The dilemma this paper addresses, in the context of sampling copyrighted sound recordings (again, which incorporates the underlying musical composition), is how can our global society balance and reconcile two different legal interests or norms and produce an effective and meaningful sound recording sampling law?  Specifically, this paper recognizes that solutions to sampling issues must reflect the U.S.’ constitutionally mandated desire to “promot[e] the Progress of Science,” while at the same time accommodating the moral rights desires of countries that follow the “personhood” theory of authorship. Finding a solution that meets both seemingly opposite interests will be difficult; however, the only way to accomplish this is to place a paramount focus, within the contexts of the Berne Convention and the WPPT, on balancing two different legal interests and norms in a global setting with the aim of creating one uniform worldwide law on sampling.

Part II of this paper introduces sampling, reviews the applicable U.S. laws related to sampling, and discusses the two current copyright infringement standards U.S. courts apply to actions involving sampled sound recordings. Additionally, Part II reviews the two defenses available to a copyright defendant: fair use and de minimis use defenses. Part III reviews scholars’ and commentators’ ideas to encourage the creation of more sample-based music, including compulsory licensing schemes and strengthening the fair use defense. Part IV of this paper reviews the two international treaties that are implicated in sampling cases: the Berne Convention and the WPPT. Additionally, Part IV reviews France’s strong moral rights protections and discusses how commentators’ and scholars’ recommendations to facilitate an increase in sample-based music likely conflicts with moral rights laws and norms of several countries, such as France. Lastly, Part V highlights the fact that, due to the ease of transmitting music worldwide via the internet, any legal improvement intending to encourage sample-based music should be created at a global level under the Berne Convention and the WPPT. Moreover, Part V demonstrates that any amendments to the Berne Convention and the WPPT must be specific, and create a ceiling of protection to facilitate a productive law.