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.
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.
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.