In sharp contrast with the majority of legal scholarship on the subject matter, this article asserts that, since the emergence of digital sampling technology in the 1970’s, courts and legal scholars alike have failed to fully appreciate the true nature and consequences of allowing legally unchecked digital sampling—that is, until the Sixth Circuit decision in Bridgeport Music, Inc. v. Dimension Films, holding that defendants’ unlicensed sampling of three notes of a copyrighted sound recording constituted a per se infringement. This decision marked the first time a court hearing a sampling case truly discerned the subtle but existent differences between sampling a musical composition and sampling a sound recording, and applied the Copyright Act accordingly.

In full support of the position that the sampling technique is properly recognized as an art form in and of itself, this article nonetheless asserts that unethical and unlawful use of a certain kind and/or a certain amount of a sampled musician’s prior work amounts to copyright infringement if the owner of the sound recording that has been sampled has not consented to such use.

This article will provide an overview of the history and continued growth of the modern technology that enables what is known as digital sampling. It will discuss the response of the courts and the music industry to sampling and the courts’ various and inconsistent attempts to reconcile sampling practices with the current language of the Copyright Act and other laws; it will also include a detailed discussion of the Bridgeport Music case. It will summarize the continuing moral and ethical debate in the music industry over whether sampling is “art” or merely “theft” and will proceed to unmask three common myths about the process of sampling that have been asserted as truths by legal scholars in the last few decades and illustrate why—up until the Bridgeport Music ruling—legal precedent and industry practices that had evolved based upon these myths protected neither the sampling musician nor the sampled musician.

Finally, this article will conclude by providing a proposed solution that is in accordance with the general legal principles set forth by the Bridgeport Music court and that would, if adopted, encourage the growing art of sampling while protecting the rights of those artists who are sampled—a proposal that the music industry develop a voluntary licensing scheme to regulate the sampling process in order to foster the protection against unauthorized sampling and the process of creating new musical compositions.