By Jaden Hallisey
Introduction
Music sampling has become one of the defining creative techniques of modern popular music, particularly in hip-hop, electronic, and experimental genres.[1] As technology has advanced within the music industry, how courts address copyright infringements of smaller and smaller fragments of sound has produced a deep split among federal circuit courts over whether “microsampling” may qualify as de minimis, or whether any unlicensed use of a sound recording constitutes infringement.[2]This division reflects two fundamentally different approaches to copyright enforcement.[3] One has adopted a strict, bright-line rule requiring a license for any sampling of a sound recording, no matter how small and unrecognizable.[4]Meanwhile, one embraced a more flexible approach, asking whether the copied material is so trivial that it falls beneath the law’s concern.[5] Beneath this legal divide lies a deeper issue: whether copyright should operate as a rigid barrier to creative reuse or as a framework that balances protection with the realities of contemporary music-making.
What is Copyright?
The Supreme Court has unambiguously articulated that the purpose of copyright is not to “reward the labor of authors,” but rather to incentivize the creation of original works for the benefit and enrichment of the public domain.[6]Article I Section 8 of the Constitution grants Congress the power “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”[7]Congress initially invoked this authority through the Copyright Act of 1790, extending legal protection to authors of maps, charts, and books against the unauthorized reproduction and distribution of their works.[8]This initial legislation set a limit of the copyright for fourteen years with a renewal for fourteen years.[9] However, amendments to the act would follow a trend of statutory extension of copyright duration and scope.[10]
A copyright infringement claim arises when someone uses one or more of the copyright owner’s exclusive rights without authorization.[11] To prevail on an infringement claim, a plaintiff must establish two elements: (1) ownership of a valid copyright, and (2) copying of original elements of the protected work.[12] In the music industry, this analysis is even more complex because a musician typically holds two separate copyrights: one for the sound recording and one for the musical composition.[13] If a music author has a copyright to the composition but not the sound recording, sampling the recording alone does not constitute infringement of the composition.[14] Copying is established by proving the defendant’s access to the work and
substantial similarity between the works.[15]Courts across the federal circuits apply differing standards when evaluating substantial similarity, the most well-known being Judge Learned Hand’s abstractions test, which examines how far the new work is abstracted from the copyrighted piece.[16] This test has been both embraced and contested as technological advancements and the widespread use of sampling have reshaped the legal landscape.[17]
What is Sampling?
Sampling is the process of physically taking a small portion of a sound recording which is then digitally manipulated to be part of a new recording.[18] Music sampling originated in 1950s France with Pierre Schaeffer’s development of musique concrete, a genre composed of a patchwork collection of “synthetic and sampled materials.”[19] Later, in the 1980s, disc jockeys in Jamaica began experimenting with “dub,” which involved “mixing disparate sounds into a single work.”[20] This technique later spread to American disc jockeys, who developed new practices such as “scratching,” beatboxing over recordings, and seamless transitions between records.[21] These innovations played a significant role in the emergence and success of new genres, particularly hip-hop and rap.[22] Sampling soon became widespread in the United States following the invention of MIDI in 1981.[23] MIDI allowed musicians to store note data and play it back on compatible keyboards, enabling new possibilities for multitrack recording, sound editing, and mixing.[24] MIDI gave sampling artists “unlimited possibilities for experimenting with prerecorded music.”[25]Continued advancements in technology has made it possible to extract increasingly smaller snippets from original recordings, resulting in the development of microsampling.[26]
Today, sampling can be found in “nearly all genres of modern popular music.”[27] It is industry custom to pay for a license to sample either a music composition or a sound recording, however, “the amount and degree of sampling necessitating a license is an issue yet to be determined.”[28] Courts have yet to reach a consensus regarding whether the use of a “single, small sample” constitutes copyright infringement.[29] While a musical or lyric phrase may be deemed to be protectable, a smaller sample, or “snippet,” may be deemed fair use.[30]
The de minimis doctrine plays a critical role in copyright law by limiting the ability for trivial or insubstantial acts of copying.[31] This defense stems from the legal maxim de minimis no curat lex: “the law does not concern itself with trifles.”[32] In the context of copyright law, the court applies de minimis in three contexts: (1) “a technical violation of a right so trivial that the law will not impose legal consequences;” (2) the copying falls below the substantial similarity threshold; and (3) when the “amount and substantiality of the portion used in relation to the copyrighted work as a whole.”[33] In sampling cases, the copying is referred to as “fragmented literal similarity” which often arises from the second instance.[34] As mentioned above, courts have developed different standards leading to inconsistent conclusions. While the Sixth Circuit found a bright-line rule the Ninth Circuit relied more on the qualitative and quantitative nature of the substantial similarity rule to determine if the de minimis defense was applicable.[35]
Sampling in the Circuit Courts
In Newton v. Diamond (2003), the Ninth Circuit became the first appellate court to address whether the de minimis defense applies to copyright claims involving microsampling.[36] In 1992, alternative rock and hip-hop group Beastie Boys obtained a license from ECM records to sample the sound recording of James Newton’s song “Choir”for the Beastie Boys’ song “Pass the Mic.”[37] Newton only had copyright protection over the musical composition of the song and not its sound recording.[38] As such, the court was left to determine whether a six-second three-note sequence the Beastie Boys’ sound engineer sampled from Newton’s musical composition qualified as an infringement.[39] The Ninth Circuit affirmed summary judgment in favor of the Beastie Boys concluding that the sequence was de minimis.[40]
The court found that because the sample only represented two percent of Newton’s piece and it was only six seconds of the entire composition, the sample did not have a “quantitatively significant relationship” with the original recording.[41] Additionally, the court’s qualitative analysis pointed to the plaintiff’s testimony which stated that the songs were “substantially dissimilar in concept and feel.”[42] Ultimately, the court found that the sample was neither quantitatively nor qualitatively significant enough “to be recognized by the average person” and the Beastie Boy’s copying was de minimis.[43] Here, the Ninth Circuit favored a case-by-case analysis in which courts weigh both the amount taken and its artistic significance within the new work to assess whether the copying rises to the level of infringement.
The Sixth Circuit, however, held that a bright-line rule was better suited to copyright infringement claims when it came to microsampling.[44] N.W.A., a rap group, digitally sampled “Get Off Your Ass and Jam” by George Clinton Jr. and the Funkadelics in their original song, “100 Miles.”[45] Bridgeport owned both the musical composition and sound recording copyrights.[46] The recording contained a two-second sample from a three-note combination solo guitar riff that was looped and extended to 16 beats that appeared in five places.[47] “100 Miles” was included on the soundtrack for the film “I Got the Hook Up,” which was released by the defendant in 1998.[48] While the district court found the use was de minimis, citing Newton in their decision, the Sixth Circuit did not agree with the lower court.[49] Instead, the Sixth Circuit reversed summary judgment and remanded the case, relying solely on 17 U.S.C. §§ 106 and 114, which protect the “actual sounds” fixed in a recording and treat any rearrangement or alteration of those sounds as copying.[50] Essentially, the court found even a small sample of a recording is valuable and therefore protected by copyright.[51]
The court’s bright-line rule established that artists must either “[g]et a license or do not sample.”[52] This rule, the court reasoned, would promote uniformity for similar infringement claims while also promoting creativity and following industry standards.[53] Despite the recent development of sampling at the time of this decision, the court reasoned that it was “a matter of course” for artists and record companies to seek licenses when writing their songs and the market would be responsible for controlling the license price.[54] Furthermore, the court found that sampling is never accidental, when an artist samples a sound recording they are physically taking sounds directly from a fixed medium, minimizing the risk of truly innocent parties infringing upon copyrighted works.[55]Finally, if the court were to adopt the de minimis defense, artists would be more inclined to pursue licenses over litigation.[56] Thus, the Sixth Circuit reasoned, the decision ultimately encourages the same results as the Ninth Circuit but with greater efficiency.[57]
The Ninth Circuit was not convinced and later had another opportunity to address this issue where they ultimately favored the case-by-case analysis.[58] In the early 1980s, Pettibone recorded the song Ooh I Love It (Love Break) and VMG Salsoul owned the recording’s copyright.[59] In 1990, Pettibone and Madonna recorded Vogue which would eventually become a mega-hit dance song that included a sample of the recording from Love Break.[60] The sampling was a physical copying of the “horn hits” from Love Break that appeared as a single hit 27 times and a double hit 23 times and appeared in both the “radio edit” and “compilation” versions of Vogue.[61] At trial, while the plaintiff tried to apply the bright-line rule from Bridgeport, the Ninth Circuit accepted the de minimis exception and asked whether “the average audience would recognize the appropriation?”[62] Pettibone copied 0.23 seconds of a quarter-note on a four-note chord and then isolated the horns, transposed it to a different key, truncated it, and finally added effects and other sounds to the chord itself.[63] Ultimately the court found that a reasonable jury could not conclude that “an average audience would recognize the appropriation of the composition.”[64]
Conclusion
A core issue that arises from splits between circuit courts is the threat to uniformity. An adoption of the Sixth Circuit’s bright-line rule and rejection of the de minimis exception would encourage greater uniformity across the circuit courts. This rule would require artists to obtain a license if they wish to sample, no matter how little they wish to sample. It recognizes a key assumption of copyright law in which authors are rewarded for their labor by the protection of their intellectual property. However, this bright-line rule fails to meet the customary practices of the music industry and prevents the law from keeping up with technological trends. As with any industry, advancements in technology categorically changed the manner of business in the music industry. Digital production software, sampling libraries, and low-cost home studios have made microsampling a routine creative tool rather than an exceptional practice, particularly in hip-hop, electronic, and experimental genres.[65] What once required expensive studio equipment and manual tape manipulation can now be accomplished in seconds on a laptop, allowing artists to incorporate brief, often recognizable sound fragments into new works. In this environment, a rule requiring a license for every sampled sound, no matter how minimal, places a substantial burden on artists and fails to reflect how modern music is created. Although the market can theoretically control the cost of acquiring licenses, as discussed in Bridgeport, requiring licensing for trivial samples makes the process impractical, especially for independent artists with limited resources.[66] The result is not merely higher transaction costs, but a chilling effect on creativity, as artists may abandon innovative projects rather than risk infringement liability. Thus, while the bright-line rule promotes uniformity, it does so at the expense of artistic expression and the realities of contemporary music production.
An acceptance of the de minimis exception fails to provide clear guidance to the courts as to how small a sample can be to avoid infringement, however, such indeterminacy may be unavoidable.[67] Copyright law is not meant to operate as a rigid barrier to artists expression, but rather “to provide an incentive for creation”.[68] A case-by-case analysis, one that evaluates both the quantitative and qualitative significance of the sampled material, better aligns with the underlying goals of copyright law. This flexible approach allows courts to distinguish between trivial borrowing and meaningful appropriation, ensuring that copyright protection does not extend beyond its purpose and inadvertently stifles the very creativity it is constitutionally designed to encourage.
[1] Sean M. Corrado, Care for a Sample? De Minimis, Fair Use, Blockchain, and an Approach to an Affordable Music Sampling System for Independent Artists, 29 Fordham Intell. Prop. Media & Ent. L.J. 179, 183–84 (2019).
[2] See Jeremy Scott Sykes, Copyright – The De Minimis Defense in Copyright Infringement Actions Involving Music Sampling, 36 U. Mem. L. Rev. 749, 764 (2006).
[3] See id.
[4] Id. at 768–72.
[5] Id. at 764–68.
[6] Feist Publ’ns, Inc. v. Rural Telephone Serv. Co., Inc. 499 U.S. 340, 349 (1991).
[7] U.S. Const. art. I, § 8, cl. 8.
[8] Sykes, supra note 3, at 751.
[9] Id.
[10] Id. at 752–53.
[11] Feist Publications, Inc. 11 S.Ct. at 1296.
[12] Id.
[13] Id. at 755.
[14] Bridgeport Music, Inc. v. Dimension Films,410 F.3d 792, 798 (6th Cir. 2005).
[15] Sykes, supra note 3,at 760–61.
[16] Id.
[17] Id.
[18] Id. at 755–56.
[19] Jean de Reydellet, Pierre Schaef er, 1910-1995: The Founder of Musique Conrete, 20 Comput. Music J., 10, 11 (1996).
[20] Robert M. Szymanski, Audio Pastiche: Digital Sampling, Intermediate Copying, Fair Use, 3 UCLA L. Rev. 271, 277 (1996).
[21] Id.
[22] Id.
[23] Id.
[24] David F. Roeck II, ‘Cause the Samplers Gonna Sample: Should Courts Allow De Minimis Copying of Sound Recordings, Or Should They Shake It Of ?, 127 Penn St. L. Rev. 205, 212 (2022).
[25] Szymanski, supra, at 278.
[26] Sykes, supra note 3, at 756–58.
[27] Sykes, supra, at 750.
[28] Thomas D. Selz et al., Entertainment Law: Legal Concepts and Business Practices (3d ed. 2025).
[29] Id.
[30] Id.
[31] See Sykes, supra note 3, at 758–60.
[32] Id. at 758.
[33] Ringgold v. Black Entertainment Television 126 F.3d 70, 75 (2d Cir. 1997).
[34] Sykes, supra note 3, at 761.
[35] See id. at 764–72.
[36] Id. at 764.
[37] Newton v. Diamond,204 F.Supp.2d 1244, 1246 (9th Cir. 2003).
[38] Id.
[39] Id. at 1256.
[40] Id. at 1260.
[41] Id. at 1258.
[42] Id. at 1246, 1258–59.
[43] Id. at 1258.
[44] See Bridgeport Music, Inc. v. Dimension Films,410 F.3d 792, 795 (6th Cir. 2005).
[45] Id.
[46] Id. at 796.
[47] Id.
[48] Id.
[49] Id. at 797.
[50] Sykes, supra note 3, at 769–70.
[51] Bridgeport, 410 F.3d at 801–02.
[52] Id. at 801.
[53] Sykes, supra note 3, at 771–72.
[54] Bridgeport 410 F.3d at 804.
[55] Id. at 803 & n.18.
[56] Id. at 802.
[57] See id. at 802–05.
[58] See VMG Salsoul, LLC v. Ciccone,824 F.3d 871, 874–75 (9th Cir. 2016).
[59] Id. at 875.
[60] Id. at 875–76.
[61] Id. at 876.
[62] Id. at 878.
[63] Id. at 879–80.
[64] Id. at 880.
[65] See Corrado, supra note 1, at 184–86.
[66] Michael Jude Galvin, A Bright Line at Any Cost: The Sixth Circuit Unjustifiably Weakens the Protection for Musical Composition Copyrights in Bridgeport Music v. Dimension Films, 9 Vand. J. Ent. & Tech. L. 529, 537 (2007).
[67] Skyes, supra note 1, at 781.
[68] Id. at 782.