Re: music sampling -- a substantial use?

On 12/07/1999, Robert C. Cumbow <rcumbow[_at_]grahamdunn.com> wrote:
>
> On Sat, 4 Dec 1999, Rich Stim <rwstim[_at_]aol.com> wrote, in part:
> >
> > Some artists have avoided paying part of the sampling clearance fees
> > by re-recording the sampled section. Instead of sampling the original
> > recording, the musician plays or programs the parts and re-records the
> > music to sound exactly like the original. In that case there is no
> > infringement of the master recording. Under U.S. copyright law, a
> > master recording can only be infringed if it is actually copied -- not
> > imitated.
>
> Can this be true? I thought the test of copyright infringement was
> substantial similarity.

I think it's true: 17 U.S.C. 114 (b). This has numerous applications in the entertainment business. For example, in the film business, the entity producing a film must obtain permission from the music publisher (assuming the work is still protected), but has a choice of obtaining a license from the record company for the original recording, or making a sound-alike recording. A s. 115 cumpulsory license for the musical work isn't available, because the derivative (audiovisual) work is not embodied in a phonorecord, but a copy. But for record companies, "cover" recordings are always a possibility.

S. Martin Keleti
<keleti[_at_]manifesto.com> Received on Fri Dec 10 1999 - 20:35:15 GMT