‘Cause the Samplers Gonna Sample: Should Courts Allow De Minimis Copying of Sound Recordings, or Should They Shake It Off?

Sampling has been a widespread practice in the music industry for decades. But with the growth of sampling also came the growth of copyright infringement litigation between copyright owners and the songwriters who sampled their sound recordings.

When a plaintiff alleges an infringement of their sound recording copyright, courts differ in how they analyze whether two sound recordings are substantially similar. Courts in the Ninth Circuit use an extrinsic/intrinsic test, while courts in the Second and Eleventh Circuits use an ordinary listener test. Is there a point, though, where an instance of sampling becomes so unrecognizable that it is not substantial, but rather de minimis?

Until 2016, the rule on de minimis sampling, as stated by the Sixth Circuit, was clear: “Get a license, or do not sample.” Then, the Ninth Circuit created a circuit split by holding that Madonna’s alleged sampling of a horn hit in her song “Vogue” was de minimis, thereby allowing a de minimis exception to copyright infringement concerning sound recordings.

Allowing a de minimis exception for sampling not only comports with the congressional intent behind the Copyright Act but also recognizes that there comes a point at which a sample is so small that it embodies an uncopyrightable musical idea. Because such a point will vary from case to case, a novel test, termed the Elemental Test, can provide a helpful framework for de minimis analysis. The Elemental Test aggregates subjective factors which courts have used in determining a sample’s recognizability. The Elemental Test also integrates objective musicological factors which dictate the uncopyrightability of a single note. When coupled with the Ninth Circuit’s extrinsic/intrinsic test for substantial similarity, the Elemental Test allows songwriters to engage in de minimis sampling and allows courts to analyze sampling cases using both objective and subjective criteria.