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St. Thomas Law Review

First Page

233

Document Type

Article

Abstract

While the present debate over the practice of sampling may seem to be just a minuscule footnote in the evolution of copyright law, the legal battle that sampling is presently engaged in illuminates many of the future, and ongoing, issues that copyright law faces. One of those major issues is whether copyright law embraces the true nature of creation and authorship. An individual's view on the nature of authorship essentially frames his or her opinion on the legitimacy of creative forms built upon appropriation, such as sampling. This article asserts that there are two legitimate forms of authorship: romantic and dialogical. The prevalent view of authorship, in copyright law, is that of romanticism. Romanticism is based upon the theory that an author is in essence a "lone genius," or one who creates from scratch. The other end of the spectrum is that creation is by nature more dialogical, or collaborative. The premise being that an artistic work is a product of the influences and creations which came before it. Hence, creativity is achieved by engaging and "borrowing" from the past. However, both conceptions of artistic creation do not necessarily have to be all or nothing. A person, as well as a copyright system, can recognize that creation occurs both from scratch and collaboration. Nevertheless, the American courts and legislatures have refused to fully recognize this dialogical nature of creation, in addition to the well-recognized, so-called "original authorship." This failure of the courts to recognize the full range of authorship occurred most recently in Bridgeport Music, Inc. v. Dimension Films. As a result of the court's unwillingness to acknowledge that creation can be collaborative in nature, an enormous amount of creative forms of expression are being suppressed. By extension, the failure of the copyright regime to encourage this form of artistic expression also hinders the purpose of American copyright law which is "[t]o promote the Progress of Science and useful Arts." The American copyright regime must not only recognize a wider conception of artistic creation, but also must align such conception with the purpose of the copyright regime. Specifically in the context of sound recording appropriation, the American copyright regime can properly recognize the true nature of authorship and promote the purpose of the regime by slightly adapting currently recognized copyright tests, such as the substantial similarity and fair use tests.

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