Searching for a Sound: A Proposal for Creating Consistent De Minimis Sampling Standards in the Music Industry

Abstract

For the past decade, Bridgeport Music, Inc. v. Dimension Films has set the standard for music sampling, requiring that all samples, regardless of length, are infringing without licenses. However, the Ninth Circuit in VMG Salsoul, LLC v. Ciccone recently declined to follow its’ sister circuit’s holding. Instead, the VMG Salsoul court applied a de minimis standard to samples in order to determine infringement. Because the deadline for the plaintiff in VMG Salsoul to submit a petition for certiorari to the Supreme Court passed this past September, this circuit split will remain for the foreseeable future, dividing the legal status of potentially de minimis samples in Los Angeles and Nashville, two centers of the music industry.

This paper will examine the history of sampling and the sampling licensing market, the impact of Bridgeport Music and the recent circuit split, and present an industry-driven solution to the unclear state of sampling in the music world. Without the guidance of further judicial decisions or congressional legislation on the issue of sampling, the music industry should come to a consensus about the use of de minimis sampling without licenses, and develop guidelines for best practices in music sampling. The development of “best practice” guidelines for fair use has been effective in the field of documentary filmmaking, providing creators with guidance that is largely accepted by the industry, and resulting in fewer unnecessary copyright clearances for uses that fall within fair use. This paper proposes that similar “best practices” guidelines for the use of de minimis sampling without licenses be created or endorsed by music industry organizations to provide musicians with guidance and legal support for cutting back the strict licensing requirements that are a result of Bridgeport, and to effectively write the de minimis doctrine back into music copyright law.

Keywords: Entertainment, Entertainment law, music, copyright, music sampling