Blanch It, Mix It, Mash It - Thomas M. Cooley Law School

496 THOMAS M. COOLEY LAW REVIEW [Vol. 28:3
Justice George Sutherland, “while the meaning of constitutional
guaranties never varies, the scope of their application must expand or
contract to meet the new and different conditions which are
constantly coming within the field of their operation. In a changing
world, it is impossible that it should be otherwise.” 5 To ensure that
the purpose of copyright—”[t]o promote the Progress of Science and
useful Arts” 6 —is never varied, we must adhere to Justice
Sutherland’s principle when addressing the issue before us. 7
The advent of the digital age has brought many developments in
the music industry. Digital sampling 8 is exceedingly prevalent on the
scene; 9 in fact, sampling technology that was only available in the
studio is now affordable for the everyday consumer. 10 Additionally,
the Internet provides unauthorized and unfettered access to nearly the
entire history of recorded music to those who seek it. 11 As a result,
not only is it now possible to manipulate an infinite collection of
copyrighted music, but we must also consider what an ordinary use
for copyrighted music is. 12 As this sampling practice becomes more
commonplace in the music industry, our notions of “popular music”
will also be tested. 13
5. Vill. of Euclid v. Ambler Realty Co., 272 U.S. 365, 387 (1926).
6. U.S. CONST. art. I, § 8, cl. 8.
7. Euclid, 272 U.S. at 387.
8. See discussion infra Part II B.
9. See A. Dean Johnson, Comment, Music Copyrights: The Need for an
Appropriate Fair Use Analysis in Digital Sampling Infringement Suits, 21 FLA. ST.
U. L. REV. 135, 135 (1993) (citing Richard Harrington, The Groove Robbers’
Judgment: Order on ‘Sampling’ Songs May Be Rap Landmark, WASH. POST, Dec.
25, 1991, at D1, D7).
10. See Reuven Ashtar, Theft, Transformation, and the Need of the Immaterial:
A Proposal for a Fair Use Digital Sampling Regime, 19 ALB. L.J. SCI. & TECH.
261, 284 (2009).
11. See Emily Harper, Note, Music Mashups: Testing the Limits of Copyright
Law as Remix Culture Takes Society by Storm, 39 HOFSTRA L. REV. 405, 405
(2010) (citing Edward Lee, Developing Copyright Practices for User-Generated
Content, J. INTERNET L., July 2009, at 1, 13).
12. See Lawrence Lessig, Free(ing) Culture for Remix, 2004 UTAH L. REV.
961, 968 (2004).
13. Ashtar, supra note 10, at 301 (citing JOANNA DEMERS, STEAL THIS MUSIC:
HOW INTELLECTUAL PROPERTY LAW AFFECTS MUSICAL CREATIVITY 8–9 (2006)).