Tiny, Tiny Copyright: An Examination of the Copyrightability of Sampler Instruments and its Impact on Derivative Works

Abstract

Trade secret and contract law are inadequate remedies for protecting recordings of single notes created without an underlying composition for use in digital instruments such as keyboards, drum pads, and digital audio workstations. These recordings should be afforded the same rights under copyright law as any other sound recordings. Selection and arrangement of such sounds to facilitate the playing of specific compositions (i.e. programming) should be considered copyrightable as a compilation because the selection and arrangement involve professional judgement that satisfies the originality requirement under copyright law. The closest case on point for the use of individual notes, VMG Salsoul v. Ciccone 824 F.3d 871 (9th Cir. 2016) and its progeny fundamentally misunderstand the marketplace for samples, placing unwarranted weight on the value of compositions as opposed to sound recordings. Any derivative works such as custom programming or recordings of compositions using samples of individual notes would likely be found to be fair use or permitted through implied license. Nevertheless, copyright protections would allow those whose digital files were stolen and disseminated beyond those with whom they are in privity of contract to recover damages against all infringers.