Revisiting digital musical sampling cases through a democratic experimentalist perspective with a particular focus on Grand Upright Music Limited v. Warner Brothers Records, Inc.
Carroll, Daniel John
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Digital sampling, wherein excerpts from pre-existing recordings are incorporated into a new recording, has been a vibrant and innovative manner of artistic creation since the 1960s. However, this practice has engendered complex infringement litigation, blurring the commonly understood lines that separate the musical "composition" from the "recording." The has been exacerbated by conflicting articulations as to the status of these entities as "works" within musicological discourse and conceptions of copyright law such that they would warrant protection from infringement. Furthermore, sampling has complicated the application of previously utilized principles of copyright law, such as de minimis and substantial similarity, and has not occasioned much, if any, consideration in litigation as to the artistic or creative purposes for which samples were used. This thesis considers Grand Upright Music Limited v. Warner Brothers Records, Inc., the first notable case involving digital sampling. The first two chapters offer an historical overview of the development of American copyright law and its musical purview, and proceeds to the facts and ultimate judicial ruling in this case. Through the interpretive lens of "democratic experimentalism," the remainder of the thesis proposes an alternative method for handling digital sampling cases than that of the Grand Upright court and other courts in subsequent cases. This is offered with a view to taking a more comprehensive account of the materially quantitative and artistically qualitative aspects of particular acts of sampling.