The Current State of the Law

When music is sampled, two different creative works are involved: the sound recording (the piece as it was performed) and the underlying composition (the piece as it was written or composed). Many samplers have argued that sampling small portions of either should not require a license. But the state of the law is far from clear. The copyright statute has no provision dealing specifically with sampling and the practice is not covered by statutory licenses. Although court decisions can clarify the law, the few courts that have dealt with the issue have not ruled consistently.

Sampling a Composition

Although a prominent early court case dealing with sampling from a composition held that any sampling was infringement, later courts have not followed that decision. In 1991, a federal district court in New York held that that Biz Markie’s use of a three-word-long clip from Gilbert O’Sullivan’s “Alone Again (Naturally)” in his track “I Need a Haircut” was infringement. In contrast, the Ninth Circuit Court of Appeals ruled in 2004 in Newton v. Diamond, that the Beastie Boys’ 3 note, 6 second sample of a James Newton composition did not infringe Newton’s copyright. Even though the Beastie Boys didn’t have a license to sample from the underlying composition, the court found that the portion sampled was so small that an ordinary audience would not be able to identify Newton’s composition in the Beastie Boys’ recording. Since this use was so small and trivial, the court found that it should be considered “de minimis,” and not an infringement. Other courts have acknowledged that the de minimis use doctrine applies to sampling from a composition.

However, there is no general rule to determine what exactly qualifies as de minimis use. Courts may use various tests: taking the heart of the work; taking a qualitatively or quantitatively significant portion of the work; or taking enough that the average audience will be able to identify the piece as belonging to the original work.

Sampling a Record

Unlike the cases dealing with sampling from a composition, the landmark case dealing with sampling from sound recordings, Bridgeport Music Inc. v. Dimension Films, ruled out the applicability of the de minimis use doctrine. In that case, N.W.A. was accused of using two seconds of the opening guitar riff from the Funkadelic album Get Off Your Ass and Jam in its track 100 Miles and Runnin’. In 2005, the Sixth Circuit Court of Appeals reasoned that sampling from sound recordings was different from sampling from the underlying music. For sound recordings, taking even a small portion was infringement. The sampler had to either get a license or not sample at all. Some scholars have criticized this decision and expressed hope that other courts will not follow it.

Music industry practice

In the absence of a clear set of rules, the music industry has developed its own practices to deal with sampling. These practices have resulted in extremely high license fees for those who wish to use samples with the blessing of the copyright holder.

As a general rule, samples that are recognizable by the ordinary listener have to be licensed, no matter how small the sample. The license fee for a single, three second-long looped sample of a sound recording can be as high as $5,000. The sampler usually has to pay an additional amount for sampling the underlying musical work, which is typically a percentage of the ownership of the new compositions, as well as an advance on expected publishing income. If an artist wishes to use multiple samples in a single work, that artist may be forced to give up a substantial amount of ownership over the final work in order to clear all the samples.

Excessive sampling license fees are especially onerous for indie labels and emerging acts. In some cases, the cost of clearing samples can equal or exceed an album’s entire recording budget. These excessive fees can have a chilling effect, essentially stifling creativity in certain genres of music.

Proposals for Reform

Some scholars have proposed a compulsory licensing scheme based on the length and substantiality of the fragment sampled. Under this scheme, samplers would pay a fixed fee for each track on which the song in question was sampled. De minimis uses of samples would be exempt from payment.

Although this proposal presents a useful means to resolve the current morass, there has been no move to change the law to give effect to it. In the meanwhile, Creative Commons has developed a new sampling community called ccMixter that offers a repertory of samples under CC licenses.