Music Sampling Question

In Bridgeport Music v. Dimension Films, (6th Cir. 2004) "the court granted plaintiff's motion for summary judgment on its claim of copyright infringement of its sound recording." [findlaw] "A federal appeals court ruled yesterday (Sept. 7) that rap artists should pay for every musical sample included in their work -- even minor, unrecognizable snippets of music." [billboard]

Could the defendant in this matter, and in all sampling cases, avoid the issue altogether by recording a cover version of the song it sampled? In that scenario, defendant is entitled by law to release the cover recording commercially and the owner of the copyright can do nothing to prevent you from doing so -- so long as you abide by the Copyright Act.

The Copyright Act allows for, with regard to covers, "Compulsory Licensing", which means you can distribute your recording of that song so long as you do what the statute tells you to (instructions) which include paying royalties to the copyright owners.

But does that then mean that you can release a recording that samples the cover version, subject to royalty payments (it could get expensive if you sample too many songs)?

In response to a question regarding whether jibjab could be considered a cover, Professor Eugene Volokh says that although:

17 U.S.C. S 115 does give people the right to cover others' songs without permission, it's subject to several limitations ... the new arrangement may not change the fundamental character of the original work....

I'm not aware of any caselaw or commentary off the top of my head that answers the question posed, but feel free to chime in on this issue in the comments.

Update: In response to my question C.E. Petit, Esq. writes:

The opinion in Bridgeport Music XLVII explicitly states that a cover version would evade the particular cause of action alleged in that case. See Just When You Thought It Was Safe to Go Back in the Blawgosphere...

Opinion:

Get a license or do not sample. We do not see this as stifling creativity in any significant way. It must be remembered that if an artist wants to incorporate a “riff” from another work in his or her recording, he is free to duplicate the sound of that “riff” in the studio.

See also Lessig: Get a license or do not sample

The court's decision turns upon its "literal" reading of the sound recording statute. The sound recording statute has no de minimus exceptions, the court held. So while you are free to copy three notes from a musical composition, you can't copy the same three notes from a recording. So copying (so long as de minimus) is fine; cut & paste is not.