Sampling and Copyright Infringement

Many hip-hop artists through the years have freely sampled recordings from other songs, television, movies, and so on. (Sampling, obviously, is when someone takes a “sample” of one sound recording and uses it in another way, frequently by looping the sample or adding effects.) But, as with so many things, the fact that something is done frequently doesn’t make it legal.

In the early days of sampling—think the hip-hop heyday of the 1970s—the rules weren’t very clearly defined, and the practice was widespread. This resulted in a wave of litigation, with courts all over the country doing their best to address the heart of the problem, and the resulting settlements and court rulings were all over the map. Because of this, there’s a lot of misinformation and rumor flying around the music community as far as what constitutes copyright infringement.

On one side of the divide are musicians who declare that because their use of a small portion of someone else’s recording is a transformative work, they have by definition created something new, and that new, original work of art should be considered fair use. On the other side are musicians whose works are being sampled, who do not want to be collaborated with unless they give permission and who believe the use of their songs should constitute infringement.

So who is correct? Let’s turn to a real court decision to help us clarify the issue.

Bridgeport Music, Inc. v. Dimension Films

Funkadelic, serious forerunner of the ’70s funk movement, released Let’s Take It To The Stage in 1975, and one of the tracks was “Get Off Your Ass and Jam”—and if for some unknown reason you’re not familiar with “GOYA&J,” George Clinton, or his P-Funk collective, you’ve likely heard parts of the track elsewhere, sampled by countless later artists. Click here to listen to a sample.

One of these artists is N.W.A., who released an EP, 100 Miles and Runnin’, fifteen years later. The title track on the EP used three notes from a guitar riff from Funkadelic’s recording (note that the original recording itself was used; it wasn’t as if the band simply played the three notes themselves—an important distinction), which were looped and extended and repeated. Check out a sample here (if you don’t mind profanity, that is).

N.W.A.’s argument was that a three-note riff is so short as to be inconsequential; because there are only so many notes available, three-note sequences are duplicated by independent musicians all the time, and those common instances can hardly be considered copyright infringement.

Which is true. But, the fact of the matter is, N.W.A. did not just happen to play the same three notes that had been played on a record a decade and a half prior. The recording itself—the exact three notes—were used, inarguably showing that the band purposefully took a section (albeit a small one) of another band’s record and used it to enhance their own, which definitely could be considered copyright infringement.

It’s a jungle out there.

Copyright law, clearly, can be complex and nuanced, up to the interpretation of the courts in many respects. When it comes to sampling, remember this rule of thumb: if you can’t find an acceptable substitute to a certain sound recording you want to use—if you honestly believe the quality your song will suffer from the omission—then you’re clearly benefiting from someone else’s work. And benefiting from someone else’s work, without their permission, can often be considered copyright infringement.

[For a more in-depth look at notorious copyright cases throughout the last few decades, check out Click&Copyright’s great publication, “Copyright Cases You Need To Know.”]