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Rappers Sorrow, or How Copyright’s Restriction on Digital Sampling Inhibits African-American Participation in Societal Discourse
| Content Provider | Semantic Scholar |
|---|---|
| Author | Henning, Darrin Keith |
| Copyright Year | 2008 |
| Abstract | ions test is premised on the ability to describe a work in increasingly generalized and abstract terms. Using the test, the description of the work becomes more generalized until “there is a point in this series of abstractions where the [original expressions] are no longer protected.” This test proves useful in analyzing samples that have been altered before being included in the alleged infringing work. The “total concept and feel test” utilizes a bifurcated method, the first part being an extrinsic analysis of the similarities in general ideas, and the second an intrinsic analysis of the similarities in the particular expression used. The former is subject to expert testimony, while the latter employs a standard based “on the response of the ordinary reasonable person” with the intended audience in mind. This method is highly criticized as being applicable only for 84 See Brown, supra note 68, at 1964–65. 85 The substractive test was first adopted in Alexander v. Haley, where it was used to reject writer Margaret Walker Alexander’s claim that her novel recounting a personal history of slavery, “Jubilee,” was infringed by Alex Haley’s similar novel, “Roots.” 460 F. Supp. 40, 46 (S.D.N.Y. 1978) (explaining that, after removing those items that are not protected, such as historical or contemporary facts, nothing of what remained of the two were similar). 86 Alexander, 460 F.Supp. at 44; See also Jeffrey Cadwell, Expert Testimony, Scenes a Faire, and Tonal Music: A (Not So) New Test for Infringement, 46 SANTA CLARA L. REV. 137, 147 (2005). Brown, supra note 68, at 1965. 87 Arnstein, 154 F.2d at 468. 88 45 F.2d at 121 (2d Cir. 1930). 89 See Brown, supra note 68, at 1965. 90 NIMMER, supra note 43, at 4 § 13.03[A][1][c], at 13-44 (2006). 91 Sid & Marty Krofft Television Prods. v. McDonalds Corp., 562 F.2d 1157, 1169 (9th Cir. 1977) (explaining that “while any one similarity taken by itself, seem[ed] trivial . . . it [was] proper for [the] jury to find that the over-all impact and effect indicated substantial appropriation” (quoting Malkin v. Dubinsky, 146 F.Supp. 111, 114 (S.D.N.Y. 1956)); see also NIMMER, supra note 43, at 4 § 13.03[A][1][c], at 13-43 to 48. |
| File Format | PDF HTM / HTML |
| Alternate Webpage(s) | https://works.bepress.com/darrin_henning/2/download/ |
| Language | English |
| Access Restriction | Open |
| Content Type | Text |
| Resource Type | Article |
