Sampled! Revisiting Fair Use and De Minimus Copying In Music Sampling

Could your favorite mash-up be an infringement under Copyright law? At one time, sound recordings featured a simplified copyright infringement analysis under the 2005 Bridgeport Music decision, which held that the Copyright Act provided copyright holders an exclusive right to sample their own work and any other sampling constituted infringement, unless it was a fair use. This decision remained intact until the VMG decision in 2016, which renewed the availability of the de minimis infringement defense in music sampling cases and held that sampling without a license did not constitute infringement so long as the sample was not recognizable by the general public. Since the revival of the de minimis defense, other questions have been raised concerning sampling—including whether the de minimis defense is an affirmative defense and whether a work, even if not transformative, is not an infringement based on the intent behind the work.

The VMG decision, as well as other decisions backing away from Bridgeport Music’s bright-line rule, has resulted in mass confusion regarding whether mash-up songs are infringements of copyright holders’ rights or transformative works—a term of art that is not specifically defined. Courts and Congress should define what constitutes a transformative work, disregard the de minimis defense and intent argument, and return to the Bridgeport Music rule in order to align the law with the Constitution’s intent of the Copyright Act.