Bridgeport Music v. Dimension Films - Indiana University School of ...

2006] ALL MIXED UP 439
that work to sue for copyright infringement. Generally, in order for a work to be
copyrightable, it must be an “original work of authorship fixed in any tangible medium
of expression.” 32
This Part will outline the constitutional prerequisites for copyright protection, and
the policies that inform those prerequisites. Subpart A will discuss the constitutional
element of copyright and the purpose of copyright in American society. Subpart B will
discuss the first prerequisite of copyright, that of “fixation.” Subpart C will discuss the
originality requirement, with due attention to the analysis of originality in the
Bridgeport and Newton cases.
A. The Constitution and the Purpose of Copyright
Congressional authority to promulgate copyright statutes is located in the United
States Constitution, Article I, Section 8, Clause 8: “To promote the Progress of Science
and useful Arts, by securing for limited Times to Authors . . . the exclusive Right to
their . . . Writings.” 33 The goal of copyright protection then is to “promote the
dissemination of knowledge to enhance the public welfare.” 34 The means to accomplish
this goal are utilitarian and economic in nature—authors and artists are given a
monopoly over their works for a limited period of time. 35 This monopoly serves as an
incentive for creators to spend the time and effort the creative process requires, secure
in the fact that they will not subsequently be undercut by free-riders. 36
The utilitarian focus of U.S. copyright law should be distinguished from the
continental European form of copyright protection, which views an artist’s work as “an
extension of his or her own personality,” and accordingly grants more control to the
artist over the eventual use to which his or her art is put. 37 In contrast, the U.S. system
focuses on economic incentives, a perhaps quintessentially American “conviction that
encouragement of individual effort by personal gain is the best way to advance the
public welfare.” 38 This underlying philosophy of U.S. copyright law should be kept in
mind when analyzing the challenges posed by digital sampling—under the European
system, questions such as whether the artist “liked” the song in which a sample of his
work was used, or the way in which it was used, would be extremely relevant. In the
United States, however, attention is placed instead on economic concerns, such as
whether the “borrowing” work will affect the market for the original. 39
Studios, Inc., 464 U.S. 417, 429 (1984).
32. 17 U.S.C. § 102(a) (2000).
33. U.S. CONST. art. I, § 8, cl. 8.
34. MARSHALL A. LEAFFER, UNDERSTANDING COPYRIGHT LAW 6 (3d ed. 1999).
35. See id.
36. This philosophy has particular significance in regard to digital sampling. Many
opponents of sampling have argued that it allows relatively less talented “artists” to effectively
hijack the work product of others, thus free-riding on the talent and efforts of the original artist
for their own material gain. See, e.g., Christopher D. Abramson, Note, Digital Sampling and the
Recording Musician: A Proposal for Legislative Protection, 74 N.Y.U. L. REV. 1660, 1668
(1999) (concluding that sampling, which “allows a producer of music to save money . . . without
sacrificing the sound and phrasing of a live musician . . . poses the greatest danger to the
musical profession because the musician is being replaced with himself”).
37. LEAFFER, supra note 34, at 3.
38. Mazer v. Stein, 347 U.S. 201, 219 (1954).
39. This is particularly evident in fair use analysis. See infra Part IV.A.