A sample can last less than a second: a drum break, a horn stab or a vocal phrase lifted from an older record and looped into a new one. Under U.S. copyright law, that small piece of sound can carry two separate sets of rights.

The rules come from the Copyright Act and a small number of court decisions. They explain why producers clear samples before a release, and why the answer to whether a brief, unrecognizable snippet needs permission has depended on which federal appeals court is asked.

One record, two copyrights

The U.S. Copyright Office treats a song and a recording of that song as different works. Its guidance on musical works and sound recordings gives an example: the composition “Respect” and a recording of Aretha Franklin singing “Respect” are “two distinct works.” The composition is the music and lyrics. The sound recording is the recorded performance.

The two are often owned by different people. According to the Copyright Office, the author of a musical composition is the person who created the music or lyrics, while the author of a sound recording is the performer or the producer who captured and edited the sounds. A sample that copies the actual audio of a record can therefore involve both the recording and the song underneath it.

A turntable stylus in the groove of a record. Photo: Franz van Duns via Wikimedia Commons, CC BY-SA 4.0.
A turntable stylus in the groove of a record. Photo: Franz van Duns via Wikimedia Commons, CC BY-SA 4.0.

What the recording owner controls

Section 106 of the Copyright Act gives copyright owners the exclusive rights to reproduce a work, to prepare derivative works based on it and to distribute copies. For sound recordings, Section 114(b) defines those rights more narrowly. The reproduction right covers copies that “directly or indirectly recapture the actual sounds fixed in the recording,” and the derivative-work right covers new works in which “the actual sounds fixed in the sound recording are rearranged, remixed, or otherwise altered in sequence or quality.”

The same section sets a limit. Those rights “do not extend to the making or duplication of another sound recording that consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording.” Re-playing a passage in a studio does not copy the recording. It can still copy the composition, which has its own owner.

“Get a license or do not sample.” — U.S. Court of Appeals for the Sixth Circuit, Bridgeport Music v. Dimension Films (2005)

Two appeals courts, two rules

In Bridgeport Music, Inc. v. Dimension Films (2005), the Sixth Circuit read Section 114(b) to mean that a recording owner has the exclusive right to sample its own recording. It set out a simple rule: “Get a license or do not sample.” The court reasoned that an artist who wants a riff “is free to duplicate the sound of that ‘riff’ in the studio,” and that “sampling is never accidental.”

Eleven years later, the Ninth Circuit reached a different conclusion. In VMG Salsoul, LLC v. Ciccone (2016), a company alleged that the producer of Madonna’s “Vogue” had copied a 0.23-second horn segment from an earlier song, “Love Break.” The court held that the long-standing “de minimis” exception, under which trivial copying is not infringement, applies to sound recordings just as it applies to other works, and it found that a general audience would not recognize the snippet as coming from “Love Break.”

The Ninth Circuit addressed the conflict directly. It said it was taking “the unusual step of creating a circuit split by disagreeing with the Sixth Circuit’s contrary holding in Bridgeport.” As a result, whether a tiny, unrecognizable sample of a recording can infringe has depended on which circuit’s law applies.

Where fair use fits

Copying that is more than trivial can still be lawful if it is a fair use. Section 107 lists purposes such as criticism, comment, news reporting, teaching, scholarship and research, and directs courts to weigh four factors: the purpose and character of the use, including whether it is commercial; the nature of the copyrighted work; the amount and substantiality of the portion used; and the effect on the market for the original.

The Supreme Court applied those factors to music in Campbell v. Acuff-Rose Music, Inc. (1994), a dispute over 2 Live Crew’s parody of Roy Orbison’s “Oh, Pretty Woman,” which repeated the original’s opening bass riff. The Court held that a commercial parody may be a fair use, that its commercial character is only one element to be weighed, and that the fair use test “calls for case-by-case analysis.” It sent the case back to the lower courts.

For anyone building a track from existing records, the law asks two questions rather than one: who owns the recording, and who owns the song.

Cover photo: The Akai MPC 3000 sampler used by producer J Dilla. Photo: Smithsonian Institution via Wikimedia Commons, CC0.

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