I'm no expert in copyright jurisprudence, but this situation actually sounds rather typical of how our law develops. The law is built largely on precedent, and many judges (and certainly appellate courts) consider anything less than 50 years old "newfangled." Thus, in representing a client in a particular case, the attorney will stress the oldest, most accepted, least controversial arguments. You only introduce bold new theories when A) you have nothing else B) the court has 'signaled' that it will consider the new arguments C)you are doing "impact" litigation.

The attorneys for these artists were not hired to blaze new legal trails for hip-hop. They were hired to win the particular case their client had at the moment. You could argue that they *should* put the interests of a wide community before their own legal success, but until they do their attorneys will focus narrowly on the task at hand -- winning the case. And that usually means following well worn paths. Once again, throwing in an untested legal theory/argument is just begging an appeals panel to shoot you down in flames.

Professors like bold cases that strike off in clearly new direction, but practioners are usually aiming much lower. An unpublished, commentless, summmary judgment in favor of the client would be good enough. What I wonder is why no music *organizations* have yet sponsored any "test cases." Indeed, is there a 'community' consensus on how the "fair use doctrine" ought to be applied to hip-hop? If there is no such consensus, then that is one reason a lawyer would try and avoid the whole issue. If you try and make your client's case into something groundbreaking, you are inviting everyone and their dog to file amicus briefs explaining to the court why they should rule against you.

Anyone who's ever taken a copyrights course would immediately think of the fair use defense in a case like this, and they would recognize that based on existing precedent, it's probably a winner. The poster in the other thread has it dead on -- this is all about control by the record labels. None of them want to create a contolling precedent which will substantially erode their control over their own IP.

Right. The crux of this situation is that musicians aren't the owners of the IP under this dated system. At a point in time, it was necessary to deal with larger entities for the sole opportunity to distribute, gain a fan base, support live performance, and in turn, make a living creating art.

Sampling is doing to authorship what file sharing did to trading cassettes...and it scares the living stink out of them and keeps lawyers on speed dial.

Pretty soon a large innovation comet will strike and kill off the dinosaurs once and for all.

Too bad all those middlemen might actually have to find real jobs. What goes around comes around all right.

UncleTed:

The poster in the other thread has it dead on -- this is all about control by the record labels. None of them want to create a contolling precedent which will substantially erode their control over their own IP.

fozzy:

The attorneys for these artists were not hired to blaze new legal trails for hip-hop. They were hired to win the particular case their client had at the moment.

But the writer's point is that a fair-use defense of sampling would sit well within the precedent of the doctrine. Three of the traditional elements of the defense--that the work be transformative rather than derivative, that the amount of the original work used is small, and that the original's value remain unaffected by the infringing work--could be reasonably argued by most hip-hop samplers.

The question isn't about avoiding new, untested arguments, but old, sound, winning ones.

As I pointed out in a later post, it seems that the 6th Circuit has already ruled against "fair use" with reference to sampling actual sound recordings. Thus, arguing "fair use" would probably be at best useless, and at worst simply galvanize the court to reinforce its earlier decisions. There's usually little point in beating a dead horse before an appeals court. "Fair use", in this context and in this circuit, is not an "winning one". Rather, it is a losing one.

I responded to your other post, so I'll summarize here: in Bridgeport, the lower court found no infringement, so there was no need to raise any defenses, including a fair use defense.

Since Bridgeport does eliminate the de minimis exception to infringement as it applies to sound recording, one would expect (and the 6th Circuit suggests) a robust defense of fair use against the infringement finding, but one isn't seeing it.

Falzone seems to think that studios would rather have a sampling rule that relies on license fees--which only those with deep pockets can pay-- rather than an assertion of fair use rights--which, once established, would be open to all. They're reducing competition by creating barriers to entry.