increments), and the tempo was lowered stretching out the length of the phrase. This is a far cry from the facts in Harrisongs, in which the two songs are arguably identical. In the end, society benefits from being able to protect music and musical expression. A rule that would allow sampling without compensation to the underlying artist undermines the underlying principal of our copyright law that allows artists to protect and exploit their works for commercial gain. If sampling is truly done as a form of homage or tribute as opposed to economic gain, then I would think that artists wouldn’t mind sharing some of the economic benefit with those artists that have come before, and whose shoulders modern day artists are standing upon. Additionally, a bright line test ends the confusion that often surrounds copyright cases. The test is quite simple - if you digitally sample - get a license first, or you will be in a world of hurt and a vast majority of those earning that are coming from your newest chart topper will be going to someone else. As time goes on and the body of copyrighted music builds up, the Harrisongs case will continue to pose a potential problem. Rational extensions of the "subconscious" infringement notion are quite troublesome. This is compounded with the court’s willingness to attribute musical knowledge about certain songs merely based on the fact that an individual is a musician. The court in Harrisongs assumed that because a person is a professional musician, they are also a walking encyclopedia of all music that has come before - which almost guarantees a finding of subconscious infringement. This line of thought can have far reaching effects, which could extend well beyond the rational bounds of what was originally intended for copyright protection. If widely adopted such a standard could actually pose a chilling effect to new works as opposed to fostering creativity which is one of the essential backbones of our copyright law. Only time will tell.
For now, all I have is my "three chords and the truth."
About the Author - Mr. Lemire is a Founding Member of the law firm of Leyendecker Lemire LLC, specializing in business and
intellectual property law. Previously, Mr. Lemire served as in house counsel to various companies in the Denver Metro area in industries ranging from high tech ".com’s" to strategic investment firms specializing in the purchase and sale of distressed commercial debt. Mr. Lemire has advised companies on issues such as general corporate and business law, employment law, mergers and acquisitions, contract drafting and negotiation, software licensing, strategic relationships, copyright, trademark and cyberlaw. He is a Member of the Colorado Bar Association, the American Bar Association’s (ABA) Business Law section, the ABA Cyberspace Law and Internet Law Committees as well as the ABA’s subcommittee on Electronic Commerce, as well as the Secretary of State’s Legislative Drafting Committee on Trademarks.
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