Picture a producer in a cramped studio, flipping through stacks of vinyl in search of the perfect drum break. A tiny snare from a 1960s R&B track could become the backbone of tomorrow’s hip-hop hit. For decades, artists have borrowed, chopped, and reimagined riffs and loops, building new soundscapes from old recordings. Sampling is hardly a modern invention—it is music’s way of conversing across generations and genres. Yet, the question remains: At what point does creative borrowing cross the line into copyright infringement?

From the studio to the courtroom, the debate over sampling has raised difficult questions about creativity, ownership, and the limits of fair use, and the courts have answered. Borrowing becomes a copyright infringement when a recognizable or substantial portion of a work is used without permission from the rights holder.[i] However, recent opinions reveal a legal framework that is both fragmented and evolving.[ii] Judges have struggled to balance the cultural value of sampling with the strict protections copyright law affords to original works.

Sampling surged in the 1990s, as technology let producers loop funk, soul, jazz, and even rock with ease.[iii] Sampling became not only accessible, but an essential tool to hip hop.[iv] However, sampling ran largely unregulated until the courts stepped in.[v] In the pivotal case of Grand Upright Music, Ltd. V. Warner Bros. Records, Inc., the court established that unauthorized sampling was a clear act of copy right infringement.[vi] Judge Kevin Thomas Duffy’s opinion famously began with the words, “[t]hou shalt not steal,” and the decision created a landscape where unauthorized sampling was plain infringement, making the practice expensive and risky.[vii] The burden of costly licensing and clearance fees fell hardest on independent and emerging artists, who lacked the financial resources of major labels to absorb these costs.[viii]

The message hardened with Bridgeport Music, Inc. v. Dimension Films.[ix] In this case, a two-second guitar riff from a funkadelic song was sampled without a license.[x] The Sixth Circuit created an even stricter framework: Any unauthorized digital sampling of a sound recording, no matter how short, was copyright infringement.[xi] The court stated simply, “[g]et a license or do not sample.”[xii]

Despite decades of legal precedent surrounding musical sampling, a significant legal divide persists between federal circuit courts, creating uncertainty for musicians and producers.[xiii] In Newton v. Diamond, the Beastie Boys used a six-second, three-note flute segment with a license for the sound recording but the Ninth Circuit found the use too trivial to matter, holding it de minimis because an average listener would not recognize the borrowed notes.[xiv] More recently, in VMG Salsoul, LLC v. Ciccone, which involved a short horn sample in Madonna’s “Vogue,” the Ninth Circuit again embraced the de minimis doctrine and expressly rejected Bridgeport’s blanket rule.[xv] These decisions created an environment where a producer’s sample may be lawful in Florida but infringing in Tennessee, a patchwork that invites forum shopping and legal uncertainty.

The split between circuit court rulings on de minimis sampling is complicated by the rise of platforms like TikTok and Artificial Intelligence (“AI”) driven remixes, which enable millions of unauthorized, small-scale uses of copyrighted material.[xvi] This dynamic makes copyright enforcement a massive and impractical challenge for rights holders.[xvii] On platforms like TikTok, a catchy soundbite can go viral almost instantly, leading to millions of videos that incorporate copyrighted content. For a rights holder, policing and issuing takedown notices for each of these videos is nearly impossible.[xviii] While TikTok has licensing agreements with major record labels, these licenses do not cover every case, giving rise to widespread, small-scale, unauthorized uses that traditional copyright enforcement struggles to contain.[xix]

Mandatory licensing has raised the price of entry for aspiring artists, cementing the power of established major labels and chilling creative experimentation. Clearing samples can involve complex negotiations and hefty fees, costs that independent musicians often cannot bear.[xx] Fear of lawsuits or takedowns drives many artists toward safer, more generic production and royalty-free loops.[xxi] The very techniques that built hip-hop—creative re-use of existing sounds—are inhibited by legal risk.[xxii]

Yet strong copyright remains essential. It seeks to ensure that original creators are compensated, that investors are protected, and that an ongoing cycle of creativity and innovation is financially sustainable. As the Supreme Court explained in Sony Corp. of America v. Universal City Studios, Inc., copyright gives creators a limited monopoly so they can recoup the time and money it takes to make new work.[xxiii] Without that protection, music could be freely copied and distributed, and many projects simply would not be worth the investment. The current debate revolves around adapting copyright to the unique challenges of modern technology, such as the large scale of user-generated content and the emergence of AI.

The law needs an update. Congress or the Supreme Court could resolve the circuit split by clarifying when a sample is de minimis—using quantitative guidelines (duration, number of notes) or a qualitative test focused on recognizability. This would give artists predictable guidelines while still compensating original creators. Still, interpretation challenges would remain, especially regarding the qualitative significance. AI-driven remixes that recreate musical patterns, rather than copy audio, present challenges that traditional de minimis rules are ill-equipped to handle.[xxiv]

Courts should distinguish between commercial releases and noncommercial, user-generated content.[xxv] A TikTok remix or AI experiment shared for fun differs from a track sold on Spotify. The distinction between noncommercial/fair use and commercial use is a standard that can be applied to AI-generated music, helping to delineate a creative experiment versus commercial exploitation. Thus, expanding “safe harbor” or fair-use protections for noncommercial creations, while requiring licenses for commercial distribution, would help balance innovation with rights protection, but this is only possible through clearly defined standards.

[i] See Arnstein v. Porter, 154 F.2d 464, 468 (2d Cir. 1946) (holding that infringement depends on whether the ordinary lay observer would recognize the alleged copy as having been appropriated from the copyrighted work); see also Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930) (Hand, J.) (“[T]he question is whether the part so taken is ‘substantial,’ and therefore not a ‘fair use’ of the copyrighted work. . . .”).

[ii] Compare Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 801 (6th Cir. 2005) (adopting a strict liability rule for sampling sound recordings), with VMG Salsoul, LLC v. Ciccone, 824 F.3d 871, 884 (9th Cir. 2016) (rejecting Bridgeport interpretation and applying a de minimis standard).

[iii] See Kembrew McLeod & Peter DiCola, Creative License: The Law and Culture of Digital Sampling, Duke Univ. Press 15–17 (2011) (discussing the rise of sampling technology and its use across genres).

[iv] See id. at 18–20 (describing hip-hop producers’ reliance on sampling for creative production).

[v] See Joseph P. Fishman, Music as a Matter of Law, 131 Harv. L. Rev. 1861, 1886–87 (2018) (noting that prior to Grand Upright, sampling operated in a largely unregulated legal gray area).

[vi]  See generally Grand Upright Music, Ltd. v. Warner Bros. Records Inc., 780 F. Supp. 182, 183–85 (S.D.N.Y. 1991) (establishing that unauthorized sampling is copyright infringement).

[vii] Id. at 183.

[viii] See McLeod & DiCola, supra note iii (noting the disproportionate effect of clearance costs on smaller and independent hip-hop artists).

[ix] See Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 801 (6th Cir. 2005).

[x] See id.

[xi] See id.

[xii] See id.

[xiii] See id.

[xiv] See Newton v. Diamond, 388 F.3d 1189, 1195–96 (9th Cir. 2004).

[xv] See VMG Salsoul, LLC v. Ciccone, 824 F.3d 871, 884 (9th Cir. 2016).

[xvi] See Kaitlyn J. Ezell, COPYRIGHT × TikTok: Sync Rights in the Digital Age, 99 N.Y.U. L. REV. 1045, 1046 (2024) (examining how platforms like TikTok blur traditional copyright boundaries through user-generated remixes and AI-driven content, complicating enforcement of sampling rights).

[xvii] See id.

[xviii] See Gregor Pryor & Nick Breen, Viral and Deadly: When Music Goes Bad on Social, Reed Smith LLP (Sep. 2, 2024), https://www.reedsmith.com/en/perspectives/2024/09/viral-and-deadly-when-music-goes-bad-on-social [https://perma.cc/A8JK-LV5S].

[xix] See id.

[xx] See Annie Zaleski, The Do’s & Don’ts of Sample Clearances, Spotify for Artists (Aug. 29, 2018), https://artists.spotify.com/en/blog/the-dos-and-donts-of-sample-clearances [https://perma.cc/YU8N-8JUX].

[xxi]  See McLeod & DiCola, supra note iii (discussing how clearance fees and licensing requirements discourage independent artists from sampling).

[xxii] See Fishman, supra note v (noting that legal risk inhibits creative re-use foundational to hip-hop).

[xxiii] See Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 429–30 (1984) (noting that copyright provides creators with a limited monopoly to incentivize investment in new works).

[xxiv] See Garhart, supra note xvi.

[xxv] See Sony Corp. of Am., at 431–32 (discussing the analysis of fair use factors, including purpose and character of the use).