Just a Sample Can’t Be So Bad: Adopting the De Minimus Standard for Sampling Music in the Modern Era
By Paul Gerstle
Sampling has long been a popular medium by which artists can express themselves by borrowing bits of another artist’s song for their own purposes. However, use of another artist’s work can cause legal issues. After all, the original song is the property of another, and the new artist cannot simply appropriate that song for their own purposes. Sometimes this issue is solved by significant defections from the artists’ original piece so as to make the new work virtually unrecognizable. Often artists will simply ask the original artist for permission to use their song, usually in return for some form of compensation. For example, popular hip-hop artist Drake sampled “The Tunnel,” a song from British jazz singer Norma Winstone, to create “IDGAF,” one of the most popular songs off of his 2023 album, For All the Dogs.[1] Although it is unclear whether she was paid or not, Winstone’s son was a Drake fan, so she acquiesced to his request.[2]
Unfortunately, sometimes artists will use others’ songs without permission, leading to a lawsuit. The precedent for sampled music was set in Grand Upright Music Ltd. v. Warner Bros. Recs. in which the court found that, assuming a proper copyright to the music in question exists, an artist must obtain a license before using even a small portion of another artists’ work.[3] This ruling has been the standard since the case was decided in 1991.[4]
In 2005, the Sixth Circuit issued a landmark decision in Bridgeport Music, Inc. v. Dimension Films, clarifying what constituted a sample.[5] The defendant argued that the minimal use of another’s song, in that case a measly two seconds worth, constituted de minimus use of the work such that the alleged infringement was not actionable.[6] The court shot this argument down, asserting that because the entire work was owned by the copyright holder, it did not make sense for even just a small part to be taken because it was still “something of value.”[7] The court further explained that it would take too many mental and musicological hoops to jump through to determine what constituted de minimis usage in sampling cases.[8]
It is unquestionable that using even a small portion of another’s song means using “something of value.”[9] Yet, by rejecting the de minimis standard of sampling music, the courts stifle the very creativity that allows artists to flourish in this modern era of music. Putting a unique spin on another’s work has led to some of the most popular songs over the past few years, with hits such as “Creepin’” by Metro Boomin and “First Class” by Jack Harlow creating new twists on old classics.[10] While both of those were more extensive samples that had the permission of the original artists, allowing a small amount of another’s work to be sampled would not violate the core principles of copyright law. Copyright law is in place to allow artists to protect their original works, and simply allowing an artist to use a two second clip of that work does not amount to an appropriation of that piece.[11] No reasonable person would confuse the two works, nor is the standard too arbitrary to determine. Courts can easily set a workable time-based standard that artists cannot go beyond. This may be ten seconds, or it may be two seconds, but either way allows for artists to continue to evolve music by expanding upon existing works.
Support for the de minimis standard is not new, as many scholarly works have expressed support for the doctrine in the past.[12] The de minimis standard sets a workable regime that both protects the original artist’s creative design while also allowing the new artist to build a work of their own. It is well past the time for courts to step into the modern age and give artists the leeway necessary to continue to push the boundaries of musical expression.
Paul Gerstle is a 2L at Vanderbilt Law School from Charleston, West Virginia. Before attending law school, Paul studied history and political science at Washington University in St. Louis.
[1] Riyah Collins, Drake’s IDGAF: Meet the 82-year-old jazz singer sampled in new hit, BBC (Nov. 15, 2023), https://www.bbc.com/news/newsbeat-67425740.
[2] Id.
[3] 780 F. Supp. 182, 183 (S.D.N.Y. 1991).
[4] Id.
[5] 410 F.3d 792 (6th Cir. 2005).
[6] Id. at 795.
[7] Id. at 801-02.
[8] Id. at 802.
[9] Id. at 801-02.
[10] See Althea Legaspi, Jack Harlow’s ‘First Class’ Goes Viral on TikTok Days Before it Drops, Rolling Stone (April 5, 2022), https://www.rollingstone.com/music/music-news/jack-harlow-first-class-viral-tiktok-1333423/; Metro Boomin, The Weeknd, & 21 Savage Remake A 2000s R&B Classic With New Song “Creepin’”, Genius (Dec. 2, 2022), https://genius.com/a/metro-boomin-the-weeknd-21-savage-remake-a-2000s-r-b-classic-with-new-song-creepin.
[11] See 17 U.S.C. § 102(a) (“Copyright protection subsists, in accordance with this title, in original works of authorship…”).
[12] See, e.g., Christopher J. Norton, Little Bits Can’t Be Wrong: The De Minimis Doctrine in the Context of Sampling Copyright-Protected Sound Recordings in New Music, 7 Berkeley J. Ent. & Sports L. 14 (2018). In addition to legal articles, recent court cases have also questioned zero tolerance for the de minimus standard, pointing to a potential rebirth of the standard in the courts. See, e.g., VMG Salsoul, LLC v. Ciccone, 824 F.3d 871 (9th Cir. 2016).