Bridgeport Redux: Digital Sampling and Audience Recoding
67 Pages Posted: 29 Jan 2009
Date Written: 2008
On rehearing in 2005, the U.S. Court of Appeals for the Sixth Circuit issued a controversial opinion regarding the scope of copyright in sound recordings in Bridgeport Music, Inc. v. Dimension Films. In that case, the Sixth Circuit interpreted 114(b) of the Copyright Act so as to preclude application of the substantial similarity test to claims of infringement of sound recording copyrights. Under the Sixth Circuit's holding, musicians who sample preexisting material in new recordings must now negotiate a license for every sample. Recent cases brought in other jurisdictions by the same sound recording copyright owners that litigated in Bridgeport, as well as a recent decision in the U.S. District Court for the Eastern District of Michigan endorsing Bridgeport's holding, present the possibility that the Sixth Circuit's precedent will be reviewed in other circuits. The outcome of these cases have the potential to extend the influence of the holding and move, in large part, toward ending the debate over musicians' ability to use quantitatively and/or qualitatively insignificant samples without the expense of attorneys, sample clearinghouses, or major corporate financial backing.
Many authors in the current copyright literature put forth an approach to copyright policy that emphasizes the public interest in freedom of expression. The thrust of this rights-based theory of copyright is that the proper scope of exclusive rights in the digital age should acknowledge the interests of audiences for copyrighted works as potential authors, and the scope of copyright measured according to its impact on free of expression. One of the consequences of this view is a larger space for audiences to comment on, adapt, or criticize works protected by copyright.
From a rights-theorist perspective, giving artists greater freedom to recode copyrighted sound recordings has significant third party benefits in terms of increased freedom of expression, but it also entails individual and social third party costs. This article explores both the costs and benefits of increased freedom to recode copyrighted works, which are implicit in Bridgeport. Hip-hop music, the kind most often associated with digital sampling, has evolved to include sampling practices ranging from the derivative to the obscure and unrecognizable. Artists and producers whose samples fall within the former category are largely unaffected by the Sixth Circuit's ruling, while artists and producers whose sampling falls within the latter category now face greater transaction costs and licensing hurdles that make their works impractical or even impossible to secure. By indirectly discouraging collage sampling in this way, the effect of the Sixth Circuit's ruling in Bridgeport will be to decrease the third party benefits of increased recoding freedoms. Conversely, the ruling indirectly encourages artists to use derivative samples, and thereby, is likely to increase the third party costs of increased recoding freedoms.
Keywords: Bridgeport, copyright, sound recording, sampling
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