Hastings Communications and Entertainment Law Journal


The author explores the controversial topic of digital sampling, a process that allows one musician to use another musician's performance without knowledge or consent. He explores the acquisition and use of samples and argues that a musician's "sound" is a copyrightable work, satisfying both constitutional and statutory requirements. The author further examines the interplay between sample acquisition and the Copyright Act's "fixation" requirement and the question of whether digitized tone colors are uncopyrightable upon utilitarian grounds. The author concludes that a musician's "sound" is copyrightable as a derivative work, that the standard of "substantial similarity" can be used to prove infringement, and that the defense of "fair use" will ordinarily not excuse infringement.