Music Sampling Rights

Intellectual property expert Joseph Fishman, Professor at Vanderbilt University Law School, gives an overview of  intellectual property rights and liabilities when it comes to sampling music. 

Sampling involves using copyrighted material in new works.  Courts in the U.S. are split on how to determine whether one’s sampling of another’s work constitutes copyright infringement.  In Nashville, where the Sixth Circuit’s rule applies, there is no de minimis test. For example, if even one second of a copyrighted recording is used in another’s work, then it is enough to become infringement because there is no minimum test.  However, in Los Angeles, where the Ninth Circuit rule applies, courts generally will not find infringement where the work sampled forms only a minimal and insubstantial part of the new work. Nevertheless, Professor Fishman reminds us that “fair use” is a defense against copyright infringement regardless of which rule from the circuit court applies. 

Sampling can be costly.  While there is no standard pricing, certain factors drive the high cost of sampling other’s work such as the prestige and stardom of the original work and the extent to which the sampled work will influence and shape the new work.  Prof. Fishman explores examples where famous American artists borrowed from prior works such as Jay-Z’s Hard Knock Life, sampling from the 1977 musical Annie, Puff Daddy’s I’ll Be Missing You, a tribute to the Notorious B.I.G. which borrowed from The Police, and Ariana Grande who built a the song 7 Rings around the framework of My Favorite Things from The Sound of Music.

Joseph Fishman is a professor of intellectual property and a recognized expert on music copyright.