Sampling in Music: Understanding Copyright Laws and Creative Boundaries

Mark D’Ostilio

In the music industry, the production technique known as sampling, has become a favorite among producers and audiences alike. In recent years, nearly one in every five hit songs contain some form of a sample. While the techniques used to generate a sample can be technically advanced, the basic principle of sampling is rather simple. A music sample is simply a previously recorded sound incorporated into a new recording.

Samples can include anything from a single note to a highly recognizable portion of a song. For example, in Madonna’s song “Vogue,” she sampled individual notes of a horn that were originally recorded in the song “Ooh I Love It (Love Break)” by Salsoul Orchestra. Meanwhile, the hip-hop artist and modern-day pop culture icon, Ice Cube, sampled significant portions of the 1977 song “Footsteps in the Dark” by the Isley Brothers, which became the iconic melody to Ice Cube’s 1992 hit “It Was a Good Day.”

While music sampling is a common technique, it raises some complicated questions of copyright law. The Copyright Act of 1976, section 102(a) protects original works of authorship that are fixed in a tangible medium. Since a music sample uses a previously recorded sound, artists and producers who use samples must be cognizant of the rights of copyright holders and the liabilities that copyright infringement carries. Although music sampling has become nearly ubiquitous in modern music, this area of law is cumbersome. To make matters more confusing, the Federal Courts of Appeals are not unified in their approach.

The section 114 of the Copyright Act generally gives the holder of a copyright the power to control how future artists use their works. Furthermore, anytime an artist creates a new song using samples of a previously copyrighted work, the new song is classified as a “derivative work.” A derivative work is “a work based upon one or more preexisting works[,]” and the Copyright Act explicitly gives the owners of a copyrighted work the exclusive authority to authorize the creation of derivate works. Accordingly, based on the statutory language, the owner of a copyrighted sound recording has the final say as to whether or not a new song can sample their sound recording.

However, statutory provisions and legal doctrines complicate this seemingly straightforward rule. First, Congress codified the fair use defense in section 107 of the Copyright Act. For the fair use defense to apply, the derivate work must be a distinguishable variation from the original work. Works that do not meet the threshold for originality are not entitled to copyright protection and will be considered an infringement of the original work. The statute mandates that reviewing courts consider four fair use factors. Those factors are:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

In addition, there is also the judicial doctrine of de minimis copying. Like fair use, de minimis copying is also a defense against claims of copyright infringement. The de minimis doctrine applies when the sample is brief or would otherwise not be detectible to the ordinary listener.

Unfortunately for music producers, the Federal Courts of Appeals have not uniformly interpreted these defenses. For example, in the 2005 case of Bridgeport Music v. Dimension Films, the Sixth Circuit created a bright line holding that de minimis doctrine had no application to sound recordings. The court’s bottom line for producers was clear: “Get a license or do not sample.”

The Sixth Circuit’s ruling is still good law, which is problematic because it is at odds with Congress’s intent behind the section 107 fair use provisions. Through committee reports that accompanied the Copyright Act, Congress explained that courts should be free to apply fair use on a case-by-case basis using the four factors described in the statute. The Sixth Circuit’s holding in Bridgeport Music takes this control away from reviewing courts in a way that Congress did not intend.

Meanwhile, in the 2016 case VMG Salsoul, LLC, v. Ciccone, the Ninth Circuit considered whether Congress intended to maintain the de minimis exception for sound recordings. After reviewing the legislative history, the court determined that the de minimis exception applies to music samples like any other copyrighted works.

With Bridgeport Music and Ciccone resulting in conflicting outcomes, musicians and producers must navigate a complicated issue with unpredictable results. Larger samples, especially readily recognizable ones, require a license from the copyright holder. However, samples that are brief or manipulated fall into a gray area that can be treated differently depending on what court ends up hearing the case. A split in the circuits can have a chilling effect on the music industry as artists and producers face uncertain consequences for sampling.

With the modern state of music trending towards increasing use of music samples, these discrepancies must get resolved. To remedy the confusion, legislative or judicial action is required. Based on the legislative history, it appears clear that Congress intended the fair use provisions and de minimis doctrine to apply to sound recordings like it does to all other copyrights. However, above all else, there must be a uniform approach so that musicians and produces can understand their responsibilities and continue making music without fear of liability.