Private Law Theory

INTRODUCTION
… Part II of this Comment introduces the concepts needed to put the discussion into context. It begins by introducing the topic of sampling and then moves to the general requirements of copyright law. Part II then discusses the Sound Recording Amendment and ends with an examination of the tests used to determine if copying a sound recording is de minimis.

Part III tracks the cases that developed the application of the de minimis exception to sampling. The Sixth and Ninth Circuits have split regarding whether the de minimis exception applies to sound recordings, creating uncertainty and varying levels of copyright protection in different jurisdictions. This Comment addresses this split and offers potential solutions for the disagreement. In Part IV, this Comment argues that the de minimis exception should not apply to sound recordings. The Sixth Circuit held that 17 USC §§ 106, 114(b) eliminated the de minimis exception for sound recordings, and the court distinguished sound recordings from other media protected by the statute. Conversely, the Ninth Circuit held that de minimis did apply to sound recordings because 17 USC §§ 106, 114(b) were written to limit the rights of copyright owners, not exempt them from defenses. While both arguments have merit, the Sixth Circuit’s interpretation aligns better with the guiding principles of copyright law.

Part V of this Comment discusses four alternatives to the traditional de minimis exception to sampling that better balance the principles of copyright law …

Tim Schaefer, Sampling and the De Minimis Exception: Balancing the Competing Interests of Copyright Law in Sound Recordings, 55 Tulsa Law Review 339 (2020).

First posted 2020-04-16 06:34:26