Citations to This Work
Did that song sound familiar? Part of it might have been sampled. Music sampling, the process of cutting and inserting part of an older recording into a new one, is a common but controversial practice in the music industry. Young artists without recording equipment of their own, and even big recording studios looking to save time, can easily sample a clip to place in their new song. While some artists obtain licenses for their samples, many do not, much to the ire of copyright holders. The Sixth Circuit has ruled that all unlicensed music sampling is automatic copyright infringement, creating the bright line rule: “Get a license, or do not sample.” However, this rule has not proved popular. The Ninth Circuit recently split with the Sixth Circuit on this issue, holding that traditional copyright analysis of substantial similarity and overcoming a de minimis defense applies to music sampling, as it does for any other copyrighted work. This comment examines the two circuit decisions and asserts that the Ninth Circuit took the correct approach. It also suggests an industry solution for obtaining sampling licenses, rather than the standard congressional or judicial resolution.
Adam Baldwin, Music Sampling and the De Minimis Defense: A Copyright Law Standard, 19 UIC REV. INTELL. PROP. L. 310 (2020)