Sampling & Interpolation
Sampling is the practice of incorporating a portion of an existing sound recording into a new musical work. Sampling implicates two separate copyrights: the copyright in the master recording (owned by the label or recording artist) and the copyright in the underlying musical composition (owned by the publisher and songwriter). Using a sample without clearing both rights constitutes copyright infringement. Interpolation — re-recording a melody, hook, or lyrical phrase from an existing song rather than using the original recording — only requires clearing the composition, not the master recording, and is commonly used to avoid expensive master clearances.
Sampling has been central to hip-hop, electronic, and many other genres for decades — and it remains one of the most legally treacherous areas of music practice. The failure to clear samples before release has resulted in some of the largest judgments in music copyright history. Understanding the clearance process, the circuit split on de minimis sampling, and the practical use of interpolation as an alternative is essential for any music attorney.
Sound recording copyright — covers the specific recording being sampled. Separate from the underlying composition copyright and governed by different licensing rules.
Exclusive rights including reproduction and creation of derivative works — the rights implicated when a sample is incorporated into a new recording.
Fair use — sometimes asserted as a defense in sampling cases, with very limited success in commercial music contexts.
Whether digitally sampling a two-second guitar chord from a sound recording without a license constituted copyright infringement.
The Sixth Circuit held that any digital sampling of a sound recording, no matter how small, constitutes copyright infringement — establishing the 'get a license or do not sample' rule. No de minimis exception for sound recording sampling in the Sixth Circuit.
Whether Biz Markie's sampling of Gilbert O'Sullivan's 'Alone Again (Naturally)' without permission constituted copyright infringement.
The foundational sampling case — held that sampling without clearance constitutes infringement. Judge Kevin Duffy's opinion began with 'Thou shalt not steal' — establishing a moral and legal framework for mandatory clearance that defined industry practice for decades.
Whether a de minimis exception to copyright infringement applies to digital sampling of sound recordings in the Ninth Circuit.
The Ninth Circuit recognized a potential de minimis exception for sound recording sampling — creating a direct circuit split with Bridgeport. In California (Ninth Circuit), a sample may potentially be too small to constitute infringement, though the practical threshold remains unclear.
The circuit split between Bridgeport (any sample infringes) and VMG Salsoul (de minimis exception may apply) creates forum-dependent legal risk for sampling. Artists and labels in Nashville (Sixth Circuit) face a strict no-sample rule; those in Los Angeles (Ninth Circuit) have a potential de minimis argument. The practical result is that clearing samples is standard industry practice regardless of circuit — the cost of litigation and injunction risk is too high to rely on a de minimis argument for commercial releases.
Always clear both the master use license (from the label) and the sync/mechanical license (from the publisher) before releasing a sample-based recording — failure to clear either creates infringement exposure.
Interpolation (re-recording the melody without using the original recording) is a common strategy to avoid expensive master clearances for iconic recordings — only the composition needs to be cleared.
For clients releasing sample-based music, establish a clearance timeline before the release date — master owners and publishers both have leverage to negotiate knowing a release date is approaching.
In the Ninth Circuit, a de minimis argument for very small samples remains a theoretical possibility — but advise clients that relying on it without clearance is a high-risk strategy given litigation costs and injunction potential.
Some samples are simply unclearable — either the rights holder won't license or the demanded fee is commercially unreasonable. Advise clients to re-record (interpolation) or redesign the track rather than release with an uncleared sample.
Sampling requires two separate licenses: a master use license (recording) and a sync/mechanical license (composition).
In the Sixth Circuit (Nashville), any digital sampling of a sound recording constitutes infringement — there is no de minimis exception.
In the Ninth Circuit (Los Angeles), a de minimis exception may potentially apply for very small samples — but relying on it without clearance is high-risk.
Interpolation (re-recording a melody or hook without using the original recording) only requires clearing the composition — commonly used to avoid expensive master clearances.
Some samples are uncleared-able — rights holders have no obligation to license, and demanding fees can be commercially impossible. Have a backup plan.
Sampling uses the actual sound recording from an existing song — requiring both a master use license and a mechanical/sync license. Interpolation re-records a melody, hook, or lyrical phrase without using the original recording — requiring only a mechanical/sync license for the composition, not a master use license.
Depends on jurisdiction. In the Sixth Circuit (covering Nashville/Tennessee), no — any digital sampling of a sound recording requires a license regardless of how small. In the Ninth Circuit (covering California), a de minimis exception may theoretically apply for very small samples, though relying on it without clearance is risky. For musical compositions, courts apply traditional de minimis analysis.
Contact the label owning the master recording (for the master use license) and the music publisher owning the composition (for the mechanical/sync license). Identify the song, the specific portion sampled, and details of the intended use (release date, album, distribution). Be prepared to negotiate fee structure (flat fee, rollover royalty, or co-writer credit) for each separately.