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date: 16 May 2022

Abstract and Keywords

Creating music often involves borrowing from preexisting sources. Copyright law applies to a range of common borrowing practices including sampling, remixing, linking, and creating user-generated content for online platforms. When analyzing musical borrowing, it is important to first establish what aspects of musical creativity copyright does and does not protect. A series of cases illustrate when the law identifies borrowing of unprotected aspects of prior works, such as musical ideas, common melodic sequences, and chord progressions. Other cases illustrate how the law also permits some borrowing of protected expression if the borrowing is fair use. Digital technology facilitates musical borrowing, and certain online practices such as posting hyperlinks to other musical sources are permitted unless the person posting the links knows that the link leads to infringing material, intends to encourage others to infringe or meets other requirements for secondary liability for copyright infringement.

Keywords: copyright, sampling, remix, mashup, user-generated content, fair use, public domain

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