Key Takeaways
- Sampling means copying part of an actual sound recording into a new one, while re-creating the same sound in a studio is not sampling.
- Federal appeals courts are split on whether a tiny sample can be too small to infringe, with the Sixth Circuit saying no and the Ninth Circuit recognizing a de minimis exception.
- Fair use is available as a defense everywhere but is unpredictable, so commercial artists almost always license samples at negotiated prices.
A drum break, a horn blast, a famous bassline: hit songs often borrow sounds from earlier records. When is that legal, and why can it cost so much?
In this TalksOnLaw Brief, Joseph Fishman, Professor of Law at Vanderbilt Law School and an expert on music copyright, explains what sampling is, how courts disagree about very short samples, and how the business of licensing samples works.
What Counts as Sampling
Professor Fishman explains that sampling is not a legal term, but it is used everywhere in the music industry. It refers to taking a clip from an actual recording and putting it into a new recording. If a producer instead re-creates a sound in the studio from scratch, even if listeners cannot tell the difference, that is not sampling. Experts often play a large role in determining whether a track used bits of the original recording or a studio re-creation. Using Jay-Z's "Hard Knock Life" as an example, he explains that if the track used the actual recording from the musical Annie, that would be a sample.
A Circuit Split on Tiny Samples
Is sampling ever legal and free? As a practical matter, Professor Fishman says, commercially released music licenses and pays for its samples. But for anyone testing the waters, federal appeals courts disagree about whether a sample can be so small, perhaps less than a second, that it needs no clearance. The Sixth Circuit, which includes Nashville, held in Bridgeport Music, Inc. v. Dimension Films that there is no de minimis floor for sampling a sound recording. The Ninth Circuit later disagreed in VMG Salsoul, LLC v. Ciccone. In either circuit, he adds, a defendant can argue fair use, a multi-factor balancing test, but the outcome is unpredictable enough that everybody licenses.
The Price of a Sample
There is no standard rate. Deals are bespoke, Professor Fishman says, and depend on who you are sampling and how prominent the clip will be. Making a Led Zeppelin track the backbone of your song will cost a lot; a brief clip from a lesser-known artist will be cheaper. Leverage drives the price. He points to late-1990s hits like Puff Daddy's tribute to the Notorious B.I.G., which relied heavily on The Police's "Every Breath You Take," as examples where clearance costs could take a large share of a song's upside. Premiums can also be high on the composition side: Ariana Grande's "7 Rings," built on "My Favorite Things," was reported to share 90 percent of its publishing revenue with Rodgers and Hammerstein's side.
What to Know Now
The sampling split Professor Fishman describes has not been resolved by the Supreme Court, so the risk of using even a tiny sample still depends partly on where a case is filed. Fair use remains available but unpredictable. In Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith (2023), the Court held that when a secondary use shares the same or a highly similar purpose as the original and is commercial, the first fair use factor is likely to weigh against fair use absent some other justification, even if the new work adds new meaning. Commentators disagree about how much that reasoning affects music, where a sample may serve a new artistic purpose while competing in the same commercial market. Courts and the music industry are also confronting AI tools trained on recordings, a newer frontier for questions about copying sound. For working artists, the practical advice is unchanged: clear samples before release.
