Write an appellate brief with the members of your group (two or three people) including all parts described in Statsky and Wernet and according to the following hypothetical situation. Its length will depend on the number of issues you address and the amount of research you do. However, I expect you to write at least seven pages per person in the group, and I expect the brief to be complete. The article accompanying this assignment will provide you with most of the necessary legal concepts you need to start your research. Look up any precedents, statutes, or legal concepts you think are necessary for your brief and cite them properly. Although the situation described below is hypothetical, I have deliberately assigned a new area of law, so that you can address a real, unresolved issue. You may assume for the purposes of this assignment, that all legal grounds for appeal were raised in the first trial and therefore will not be waived in the appeal.

You represent a new kind of musician, an Internet-based electronic composer who calls himself MP3 Bandit. This composer/musician (whose real name is Howard Bannister) creates electronic compositions entirely through sampling the sounds made by computers with a particular operating system (Microdot) and distributes them through a web site using MP3 technology. His compositions went relatively unnoticed until recently, when his latest song, "Microdot is Evil," started receiving thousands of downloads. To keep up with demand, he changed Internet hosts and began selling advertising space on the site, making about $1000 per week.

Microdot sued him for infringement of copyright, claiming that his composition contained sounds owned by Microdot, that is, the sounds included with the operating software. Bannister admitted using the sounds as the basis for his compositions, but claimed that he had modified them sufficiently so that they were no longer identical to Microdot’s copyrighted material. Moreover, his web site includes several other compositions, and his profits not from the sale of the compositions themselves, but from advertising. Finally, Bannister claimed that the song is a parody, and therefore protected by the First Amendment.

The California court ruled against Bannister and in favor of Microdot, holding that his sounds (which are, in fact, copyrighted) are still recognizable versions of the originals, and that the ultimate source of his profits was immaterial to the case, because the songs provided the incentive for advertising there.

Bannister has ample funds and wants to appeal to the Federal District Court. Here are some hints on possible grounds for appeal:

• See the case law on parody and fair use according to the Copyright Act of 1976 (17 USCS 107). It allows for limited use of another composition under certain circumstances—see if they apply in this case.
• The lower court failed to determine whether the sampled sounds were recognizable in themselves or because of the song’s title. Does that help your case?
• The computer generated all the sounds on all the songs, yet Microdot is only claiming copyright violation in the case of a specific song. Are there legal grounds for claiming that the computer is merely a musical instrument, and that the sounds put on the computer are meant to be used that way? See the case precedents on sampling.
• Is there something about the medium of distribution (MP3) that changes the legal position of the composer? Does the fact that he does not sell the compositions directly change the commercial intent of the work?
• Any other argument permissible in an appeal.

BYLINE: LARRY WAKS, SHERI HUNTER Copyright 2000 American Lawyer Newspapers Group, Inc. Texas Lawyer February 21, 2000, 25

Anything they take off my record is mine. Is it all right if I take some paint off your house and put it on mine? Can I take a button off your shirt and put it on mine? Can I take a toenail off your foot - is that all right with you?" - James Brown, on digital music sampling in Michael W. Miller's "Creativity Furor: High-Tech Alteration of Sights and Sounds Divides the Art World," The Wall Street Journal, Sept. 1, 1987.

While many agree with the adage that imitation is the sincerest form of flattery, a significant number of copyright owners feel that it is more analogous to theft when the imitation is in the form of digital sampling, a practice that has become pervasive in the music industry.

Digital sampling involves extracting a portion of a previously recorded song and inserting it into a new recording. Since the 1980s it has become increasingly common for contemporary artists to include such "samples" in their recordings, for example, Natalie Cole sampled her father's voice in her remake of "Unforgettable" and Run DMC's "Walk This Way" included samples from Aerosmith's original version.

In the past, digital sampling was primarily done by sound engineers, programmers and remixers in sound studios. With the advances of the Internet, though, digital sampling can now be easily and inexpensively done by anyone with a computer and the right software. This "amateur" digital sampling is frequently occurring without the permission of the copyright owner of the original recording, and due to the ease by which these musicians can make their recordings available online, the music industry will likely be forced to revisit the issue of whether sampling constitutes copyright infringement.

Surprisingly, there is little judicial or legislative guidance when it comes to digital sampling. The Digital Millennium Copyright Act, enacted in 1998, fails to directly address sampling, and record companies, typically the owners of the original master recordings, have had strong economic incentives to avoid litigation; they recognize that their own artists' recordings may include samples from the other labels' artists. As a result, the legal status of sampling remains unclear. Accordingly, it remains uncertain whether a musician must license a sample and, if so, how much that license should cost.

The digital sampling process consists of a musician making a digital recording of sounds that are taken from an already existing recording. The digital copy or "sample" generally ranges from less than a second up to 25 seconds. Once the sample has been recorded, the artist can view it on a computer screen and, if he or she chooses, modify the sound to his or her preference. Modern sampling technology even gives the musician the option of isolating and recording a particular instrument, such as the drum beat from a specific song. Upon finalizing the sample, the artist can then essentially cut and paste it into the new recording. Most samples remain easily recognizable to listeners, however, some may have been modified to such an extent that the sound is no longer identifiable as originating from the pre-existing recording.

Advocates of sampling argue that the amount of a song sampled is often so minimal that it is not deserving of copyright protection. They further claim that, in many cases, the sample is altered to such an extent that it is no longer familiar to the average listener, and therefore, although the sample contains the actual sounds of the original recording, there is not enough similarity to constitute infringement. Alternatively, opponents of the practice argue that the question of similarity does not apply to digital sampling; rather, the test for infringement should be limited to whether someone has used the exact sounds of a copyrighted song. They claim that the amount taken from a song is not a relevant factor and that the appropriation of even a few notes can invoke the original song in the minds of listeners. A brief overview of the federal copyright law may explain the reasoning behind these arguments.

The Copyright Act of 1976 grants authors of original works the exclusive right to copy the work; make derivative works; distribute copies of the work; perform the work publicly; and display the work publicly. It also protects owners by providing penalties for certain unauthorized uses of their works. The courts have previously established that in a claim of copyright infringement, the plaintiff must prove: 1. ownership of the copyright; and 2. copying of a protected expression by the defendant.

The plaintiff must prove that copying occurred by demonstrating that the defendant had access to the work and that the copyrighted work and the defendant's work are substantially similar. Unfortunately, the cases that have addressed the legality of sampling are inconsistent and have focused on whether the minimal amount of the original work that had been appropriated was deserving of copyright protection. In the 1987 case Baxter v. MCA, the 9th U.S. Circuit Court of Appeals held that the appropriate test is whether "the ordinary lay hearer" comparing the two works could recognize the allegedly infringing sample as originating from the copyrighted work.

While samples often meet this criteria, many are digitally modified to the point that jurors would be unable to recognize the part of the copyrighted work embodied in the new work. Yet, even when the sample is no longer identifiable as originating from the copyrighted work, actual copying has still taken place. The 9th U.S. Circuit failed to address this issue in Baxter.

In the 1991 case Grand Upright Music Ltd. v. Warner Brothers Records Inc., the U.S. District Court for the Southern District of New York relied solely on the defendants' admission that they had attempted to obtain a license and then released the song prior to obtaining it, in holding the defendants liable for copyright infringement. There was no discussion of the circumstances under which digital sampling constitutes infringement.

In the face of these decisions, the music industry has adopted its own system for licensing samples. The major record labels require their artists to keep track of the samples they use and to obtain the necessary clearances. Music publishers and record labels routinely license sample uses of songs, although they require that each use be approved before the song is released. There are even sample clearance companies that represent record companies and production companies for the sole purpose of negotiating and securing consents for samples. Without legislative guidelines, such as a statutory license rate, publishers of the original works determine the license fees based upon the percentage of the new song that contains the sample.

While the music industry has come to the conclusion that copyright owners should be compensated for sample uses of their works, new Internet musicians often do not compensate the original artists. These musicians can insert samples into their digital recordings and then distribute the new recording online, making it available to the entire world instantaneously. Further, the continuously increasing amount of music being uploaded to the Internet daily makes it nearly impossible for the record and publishing companies to track these unlicensed uses. It remains to be seen how the industry will respond to thesenew challenges, but judging from the courts' and Congress' hesitancy thus far to resolve the legality of sampling, there are perhaps even more uncertain times ahead.

Larry Waks is a partner, and Sheri Hunter is an associate, in the Austin office of Jackson Walker. Waks is the president of the Entertainment and Sports Law Section of the State Bar of Texas.

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