North Carolina Law Review

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“Good Artists Borrow; Great Artists Steal”: How the Fair Use Doctrine Can Bring Harmony to the Federal Circuits on Digital Music Sampling

May 11, 2018

96 N.C. L. Rev. 1085 (2018) 


Digital sampling, the act of appropriating sounds from a previous recording and mixing those sounds into a completely new musical work, emerged as a music industry practice in the 1980s. Since then, the popularity of the practice has only continued to increase. While those who engage in sampling insist that they “have the utmost reverence for the people who created the music that came before,” many artists whose works are being repeatedly sampled and incorporated into new works find the practice to be more akin to stealing than a form of flattery.


The legality of sampling remained relatively undeveloped until the United States Court of Appeals for the Sixth Circuit issued a decision in Bridgeport Music, Inc. v. Dimension Films in 2005. Despite arguments that the practice of sampling had become standard within the music industry and that the amount of appropriated material at issue in the case was de minimis, the Sixth Circuit held that any amount of sampling of a copyright-protected work would result in liability. “Get a license or do not sample,” the court stated. “We do not see this as stifling creativity in any significant way.”


Despite the Sixth Circuit’s assurance that its ruling would not stifle creativity, the Bridgeport decision has been strongly criticized, and in 2016, the United States Court of Appeals for the Ninth Circuit took the unusual step of creating a circuit split with its decision in VMG Salsoul, LLC v. Ciccone. VMG Salsoul,, which owned the rights to the 1977 song “Love Break,” argued that Madonna should be held liable for copyright infringement for her use of a a ahort "horn blast" from "Love Break" in her hit song "Vogue," even if her sampling was de minimis. Contrary to the assertions of its sister circuit, the Ninth Circuit held that the de minimis analysis was a crucial aspect of any copyright infringement claim. Thus, the Ciccone ruling put two centers of the American music industry at odds with each other: Nashville, where the Bridgeport case arose, and the West Coast, where Ciccone was decided.


This Comment argues that a de minimis analysis should apply when evaluating a copyright infringement claim in the music sampling context, but only as one facet within the larger framework of the fair use doctrine. Specifically, courts faced with a digital sampling infringement claim should apply the four fair use factors at the summary judgment stage to determine whether an original work is substantially similar to a new work so as to warrant a finding of infringement, or alternatively, whether the use may be deemed fair. The analysis examines the role of copyright as it pertains to the act of digital sampling and explores the intricacies of the Sixth and Ninth Circuits’ split on the applicability of the de minimis analysis within a copyright infringement claim. It explains the origins of the fair use doctrine, advocating for its contemporary applicability to cases involving digital sampling and detailing the ways in which the fair use doctrine strikes the requisite balance between the Bridgeport and Ciccone decisions so as to ultimately further the goals of copyright law generally.



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