Tiny Takes, Big Consequences: The Circuit Split Over the De Minimis Defense in Music Sampling

by Katerina Fernandez, Associate Member, University of Cincinnati Law Review Vol. 93

I. Introduction

Sampling reshaped modern music,[1] from hip-hop beats to pop anthems, but the legal system remains stuck in a discordant loop.[2] Music sampling is the practice of reusing portions of preexisting sound recordings in new compositions.[3] Artists frequently incorporate samples to create innovative sounds and pay homage to past works.[4] While sampling fuels musical creativity and cultural expression, it also raises significant legal questions about copyright protection and fair use.[5] Courts are deeply divided over whether even the tiniest, unrecognizable sample requires permission or if such minor uses fall under copyright’s de minimis exception.[6] The United States Court of Appeals for the Sixth Circuit insists, “Get a license or do not sample,”[7] while the United States Court of Appeals for the Ninth Circuit asks, would anyone even notice?[8] This split leaves artists, producers, and labels in limbo: risk costly litigation or stifle innovation.[9]

At the heart of this legal debate lies a fundamental tension: copyright law is designed to incentivize artistic creation by granting exclusive rights to creators, yet excessive copyright enforcement risks stifling the creativity it seeks to protect.[10] The de minimis exception—a legal doctrine allowing for the use of small, unrecognizable portions of copyrighted works without permission—has played a crucial role in this balance.[11] Acknowledging that not all uses of copyrighted material warrant legal action, the doctrine safeguards against overreach, ensuring that trivial or incidental uses do not become barriers to innovation, commentary, or new forms of expression.[12] As courts grapple with how to apply this principle in an increasingly digital and remix-oriented culture, its significance continues to grow.

This article examines the circuit split on the de minimis exception in music sampling, offering a comprehensive analysis of its legal and artistic implications. Part II will explain the foundational principles of copyright law for sound recordings under the Copyright Act of 1976 and delineate the circuit split between the Sixth Circuit and the Ninth Circuit. Part III will evaluate the practical consequences of this divide, analyzing its impact on artistic creativity, industry practices, and legal uncertainty while exploring potential resolutions—such as Supreme Court intervention, legislative action, or a hybrid doctrinal approach. Part IV concludes by synthesizing these insights, advocating for a balanced framework that reconciles copyright protection with the transformative potential of sampling in modern music. Through this exploration, the article aims to clarify the tensions between legal certainty and artistic innovation in an evolving creative landscape.

II. Background

This section will provide the legal and contextual foundation for understanding the circuit split over the de minimis defense in music sampling. First, it examines the Copyright Act of 1976, which established dual protections for musical compositions and sound recordings and outlines the exclusive rights granted to copyright holders under § 114(b).[13] Next, it explores the de minimis exception, a longstanding doctrine in copyright law that permits trivial or unrecognizable uses of copyrighted material without liability.[14] Finally, it analyzes the pivotal circuit split between the Sixth Circuit’s strict liability rule in Bridgeport Music, Inc. v. Dimension Films,[15] rejecting the defense for sound recordings, and the Ninth Circuit’s contrary holding in VMG Salsoul, LLC v. Ciccone, which preserves the exception.[16]

A. Copyright Protection for Sound Recordings Under the Copyright Act of 1976

The Copyright Act of 1976 (the Act) forms the foundation of modern U.S. copyright law, introducing significant changes to accommodate evolving technologies and creative practices.[17] Effective January 1, 1978, the Act dramatically revised earlier statutes to accommodate new forms of media and expression.[18] Crucially, the Act explicitly recognized two distinct types of copyright relevant to music: musical compositions and sound recordings.[19] Musical compositions refer to the underlying musical works—the melody, harmony, lyrics, and written notation.[20] These have long been protected under copyright law.[21] In contrast, sound recordings—which encompass the actual fixation of a performance, including the specific interpretation, mixing, and production—were not federally protected until the 1971 Sound Recording Amendment and later incorporated into the broader Copyright Act in 1976.[22] The Act grants sound recording copyright holders exclusive rights, including the right to reproduce, distribute, and publicly perform the recording via digital transmission.[23] However, these rights are limited by § 114(b), which clarifies that copyright protection does not extend to independently created recordings that merely imitate or simulate the original.[24] This provision aims to balance protection for creators with the freedom of others to produce original renditions of existing works.

1. Musical Composition vs. Sound Recording

The dichotomy between musical compositions and sound recordings is central to understanding copyright disputes in music, particularly in sampling cases. Musical composition refers to the underlying musical work: the melody, harmony, rhythm, and lyrics as fixed in a tangible form such as sheet music.[25] In contrast, a sound recording is a specific recorded performance of a musical composition.[26] It represents the fixation of sounds, whether from instruments, vocals, or both, captured in a studio or live setting.[27] For example, when a cover band performs a song live, they need a license for the composition—typically through a blanket license from a performance rights organization like ASCAP.[28] However, if the band wants to use a specific sound recording—like the original studio version recorded by the original artist in a remixed version of the song the cover band intends to record—they would need a separate license from the sound recording’s rights holder, usually the record label.[29] Merely licensing the composition does not allow them to reproduce or sample the recorded performance.

This distinction has played out in several cases.[30] One example includes a 2023 lawsuit involving rapper Yung Gravy and pop icon Rick Astley.[31] Yung Gravy’s 2022 hit single, Betty (Get Money),[32] heavily borrowed elements from Astley’s 1987 hit Never Gonna Give You Up,[33] including its melody and synthesizer chords.[34] However, the controversy arose because “[a]lthough the song’s producers received permission to use the composition of the 1987 original, they hadn’t gotten consent to use Astley’s voice as a sample, according to the lawsuit, which called the rerecording ‘a deliberate theft of Mr. Astley’s voice.’”[35] Astley also alleged that this vocal mimicry falsely implied his endorsement.[36] The dispute was ultimately settled out of court in September 2023, though the terms were not disclosed.[37]

Sampling raises particularly nuanced issues because it often involves copying a portion of a sound recording, not just the underlying composition.[38] Thus, when sampling is involved, the sound recording generally triggers legal disputes, especially because even short clips of recorded audio—distinctive riffs, horn stabs, or vocal exclamations—can be highly identifiable and valuable. The rise of digital production tools has made sampling easier and heightened legal risk. Courts often apply the de minimis doctrine, holding that trivial or unrecognizable copying does not constitute infringement.[39] However, a circuit split has emerged over whether the de minimis defense applies to sound recordings.

2. The De Minimis Exception

The issue of de minimis use arises from the longstanding principle that the law does not concern itself with trifles.[40] In copyright law, this means that uses of copyrighted material that are so minor or insubstantial that they have no meaningful economic or expressive impact are not considered infringements.[41] For instance, a fleeting glimpse of a copyrighted painting in the background of a film scene may be deemed de minimis and thus non-infringing. Courts have traditionally evaluated de minimis claims by examining quantitative and qualitative aspects of the use—how much was taken and how important the taken portion was to the original work.[42] Courts have generally accepted the de minimis doctrine in musical composition as a valid defense, allowing for the incidental or trivial use of notes, phrases, or motifs under certain conditions.[43] However, the application of this defense to sound recordings is where courts have diverged sharply.

3. The Circuit Split: Bridgeport Ciccone

Two seminal cases, Bridgeport and Ciccone, have established a clear circuit split on whether the de minimis exception applies to unauthorized sampling of copyrighted sound recordings.[44] The Sixth Circuit in Bridgeport took a strict liability approach, holding that any unauthorized sampling, no matter how minimal, constitutes infringement.[45] In contrast, the Ninth Circuit in Ciccone embraced a more flexible standard, permitting de minimis use as a valid defense in certain circumstances.[46] This divergence has created legal uncertainty for artists, producers, and rights holders navigating the boundaries of permissible sampling.

4. Sixth Circuit

In Bridgeport, the Sixth Circuit established a bright-line rule that the de minimis exception does not apply to claims of sound recording infringement.[47] Departing from the traditional quantitative and qualitative analysis of copyright infringement cases, the court concluded that any unauthorized sampling—regardless of length, prominence, or perceptibility—constitutes infringement under the Copyright Act of 1976.[48] The decision rested on a strict textualist reading of 17 U.S.C. § 114(b), explicitly granting sound recording copyright holders the exclusive right to duplicate the “actual sounds” fixed in a recording.[49] The Sixth Circuit reasoned that in drafting § 114(b), Congress intended to eliminate any de minimis threshold for sound recordings, reinforcing the principle that all forms of digital sampling require authorization.[50] The court emphasized the unique nature of sound recording copyrights, which protect specific sonic elements rather than merely the underlying composition.[51] As a result, even minute, altered, or imperceptible samples remain subject to the statutory prohibition against unauthorized copying.

The court further justified its ruling on policy grounds, contending that requiring licenses for all sampling instances would enhance legal certainty, promote fairness in the music industry, and reduce the burden on courts of engaging in subjective determinations of whether a sample is substantial enough to constitute infringement.[52] In its most frequently quoted passage, the court declared, “[g]et a license or do not sample,”[53] underscoring its preference for a categorical, easily administrable rule over a case-by-case de minimis analysis. By doing so, the decision marked a significant departure from prevailing copyright jurisprudence, where de minimis use has long been a recognized defense in infringement cases. 

5. Ninth Circuit

The Ninth Circuit explicitly rejected Bridgeport’s reasoning in Ciccone, holding that the de minimis exception does apply to sound recordings.[54] The court carefully examined the statutory text and legislative history, concluding that Congress never intended to create an absolute prohibition on even the most minimal unauthorized copying of sound recordings.[55] The court found that Bridgeport misinterpreted § 114(b) of the Copyright Act by reading it as an expansion of copyright protection rather than a limitation on the exclusive rights of sound recording copyright holders.[56] According to the Ninth Circuit, § 114(b) serves only to clarify that creating an independent imitation of a sound recording without actual copying does not constitute infringement; it does not eliminate the longstanding principle that trivial copying is non-actionable.[57] The Ninth Circuit underscored that the de minimis doctrine has deep roots in copyright law and is consistently applied across different categories of copyrighted works.[58] The court emphasized that disregarding this doctrine for sound recordings would create an inconsistency in the law that Congress did not intend.[59]

From a policy perspective, the Ninth Circuit was mainly concerned with the practical consequences of Bridgeport’s rigid rule, which could significantly impede artistic creativity and likely increase litigation.[60] The court observed that certain genres—such as hip-hop, electronic music, and other sample-based art forms—rely extensively on short snippets of preexisting recordings to create new works.[61] If Bridgeport’s absolute rule were adopted, artists in these genres could face litigation, potentially stifling innovation and discouraging new musical compositions. Additionally, the Ninth Circuit noted that such a rule would encourage overly aggressive enforcement actions by copyright holders, even in cases where the alleged copying was so trivial that the average listener would not perceive it.[62]

III. Discussion

The circuit split has significant practical and doctrinal consequences. First, it creates legal uncertainty for artists and producers, who face inconsistent standards depending on jurisdiction. A non-infringing sample in the Ninth Circuit could result in liability in the Sixth Circuit, complicating nationwide music distribution. Second, the split has influenced industry practices. The Bridgeport rule has led to widespread licensing of even minor samples, while the Ciccone approach offers greater flexibility for artists. This disparity affects how music is created, licensed, and litigated across different regions.  It also raises concerns about forum shopping, as parties may strategically file lawsuits in jurisdictions with more favorable sampling standards.[63] Finally, the split underscores the need for resolution. A uniform standard would clarify and balance the competing interests of copyright protection and creative freedom. The divergent approaches of the Sixth and Ninth Circuits in Bridgeport and Ciccone reflect a fundamental tension in copyright law: how to protect original artists while preserving the creative freedom essential to cultural production.

A. Protecting Artists or Hindering Progress?

While both courts in Bridgeport and Ciccone claim to ground their decisions in copyright principles,[64] they diverge sharply in their practical applications and the consequences of their doctrinal choices. The Sixth Circuit adopts a bright-line rule: any unauthorized sampling constitutes infringement, no matter how minimal.[65] This categorical approach stems from a strong desire to shield original artists from the uncertainty and expense of litigation.[66] The court explicitly aimed to eliminate case-by-case judicial inquiries into whether a sampled segment is de minimis, recognizing the burdens this standard imposes on rights holders who must constantly defend the integrity of their work.[67] In doing so, the Sixth Circuit reframed sampling as not merely derivative but inherently infringing—thereby fortifying the rights of original creators.[68]

However, this strict liability regime comes at the cost of artistic freedom. By refusing to entertain the possibility that some uses are too trivial to constitute infringement, the Sixth Circuit’s rule stifles innovation. It disregards the realities of modern music production, where sampling—often imperceptible or transformed—is a staple of artistic practice. The court’s requirement of “get a license or do not sample” underscores its preference for rigid boundaries over nuanced interpretation. [69] Still, such a view ignores the qualitative differences between tangible property and creative expression, where value often lies in transformation and reinterpretation rather than mere reproduction.

In contrast, the Ninth Circuit seeks to harmonize its approach with broader copyright doctrines prioritizing transformative use and cover/tribute artists’ First Amendment interests.[70] By recognizing a de minimis exception for sound recordings, the court embraces the principle that not all copying is harmful or actionable.[71] The Ninth Circuit’s approach is consistent with the fundamental tenet that copyright protects only expression, not ideas or isolated elements devoid of original authorship.[72] This stance acknowledges that minute, unrecognizable fragments may lack independent creative value and thus fall outside the scope of infringement.

Yet the Ninth Circuit’s leniency introduces its own set of problems. By placing the burden on original artists to show that even trivial uses rise to the level of infringement, the Ninth Circuit potentially erodes the predictability and strength of copyright protection. The court’s standard injects subjectivity into the infringement inquiry, requiring case-specific determinations that are inherently fact-bound and costly. In doing so, it arguably undercuts the economic incentive structure that copyright law is designed to uphold, namely, the assurance that creators can control and monetize derivative uses of their work.

B. Beyond the Courtroom: How Sampling Rules Shape Creativity and Commerce

Critical questions about how legal standards affect both emerging and established artists, the balance between predictability and flexibility in creative industries, and the broader trends shaping copyright litigation are at stake due to the split. This section will explore these tensions first by examining how strict liability rules and flexible standards disproportionately impact artists at different career stages, favoring established rights holders while creating barriers for independent creators. Second, it will analyze the practical consequences of the split, including forum shopping and regional disparities in enforcement, which undermine consistency in copyright litigation. Finally, it will assess how the high litigation costs and the prevalence of settlements shape the resolution of sampling disputes, often rendering doctrinal differences secondary to economic realities.

1. Strict Rules, Stifled Creativity

Strict liability rules like the Sixth Circuit’s protect the interests of established rights holders by eliminating ambiguity: any unlicensed sampling, regardless of duration or audibility, constitutes infringement.[73] This certainty benefits copyright owners, huge labels, and legacy artists with valuable catalogs by reinforcing their control and simplifying enforcement. However, for emerging artists who often lack the financial means to obtain costly licenses or navigate legal gray areas, the rule effectively operates as a barrier to entry. The cost of licensing even trivial or barely detectable samples can be prohibitively high,[74] discouraging innovation and disproportionately impacting independent musicians who rely on sampling as an accessible mode of expression.

In contrast, the Ninth Circuit’s more flexible approach acknowledges the practical realities of modern music production. It creates space for transformative and experimental uses, particularly by newer artists outside the traditional licensing ecosystem. However, this flexibility comes at the cost of legal uncertainty. Artists and producers must assess, often with limited guidance, whether a particular use will be deemed de minimis, a subjective inquiry that varies by jurisdiction and judge. This uncertainty raises the risk of inconsistent judicial outcomes and may deter risk-averse creators from using samples altogether, even where the law might ultimately permit it.

2. Sampling Rules Fuel Forum Shopping

The circuit split also exacerbates forum shopping and regional disparities in enforcement. Because the legal standard for sampling now depends on geographic location, similarly situated artists may face drastically different legal risks based solely on where a case is filed. Plaintiffs may strategically file suit in jurisdictions like the Sixth Circuit, where the no-sampling rule virtually guarantees a finding of infringement, thereby leveraging a favorable legal standard to extract higher settlement amounts or stronger injunctions. Meanwhile, defendants may seek to transfer or litigate in more permissive jurisdictions like the Ninth Circuit, where the de minimis doctrine offers greater room for defense and a chance at dismissal on threshold grounds. This venue-driven approach to litigation undermines the consistency and fairness of copyright enforcement, turning what should be questions of substantive law into tactical calculations based on geography. Moreover, this legal patchwork creates confusion for artists and courts, especially in cases involving national distribution or digital platforms that transcend regional boundaries. With music now consumed globally and sample-heavy genres proliferating online,[75] the absence of a uniform rule invites greater unpredictability and inefficiency in resolving sampling disputes. 

3. Business Solutions Over Legal Fights?

In practical terms, the legal uncertainty created by the split may have a muted effect on litigation outcomes. The high cost of litigation, primarily in federal court, encourages parties to settle disputes early.[76] Record labels and artists increasingly favor private negotiation and out-of-court settlements over protracted legal battles, particularly where litigation is expensive, time-consuming, and unpredictable.[77] As a result, many sampling disputes are resolved quickly through settlements, regardless of the underlying legal merits or circuit-specific doctrines.[78] This trend toward settlement may reflect both a strategic risk-avoidance calculus and a broader shift in the industry toward managing copyright disputes as business transactions rather than legal confrontations. The mere threat of litigation, especially in a strict-liability jurisdiction, can be sufficient to compel settlement—even where the alleged use might be defensible in another circuit. In this sense, the circuit split creates asymmetries that often operate behind the scenes, influencing bargaining positions rather than resulting in a substantial body of published case law.

C. Remixing the Rules: Resolving the Sampling Split?

The current divide between the Sixth and Ninth Circuits regarding the permissibility of de minimis copying in digital sampling highlights a pressing need for doctrinal clarification. As this circuit split matures, several potential avenues for resolution emerge, each with distinct advantages and trade-offs. First, Supreme Court intervention could provide nationwide uniformity but risks entrenching an inflexible rule. Second, legislative reform might codify a balanced de minimis exception, though political gridlock and industry lobbying could stall progress. Third, combining factors like sample duration, recognizability, and transformative use, a hybrid approach could bridge the gap between the circuits’ extremes, offering flexibility while protecting rights holders. This section evaluates each solution, weighing its potential to reconcile copyright protection with artistic innovation in an evolving musical landscape.

1. Supreme Court Intervention

One possible—and likely the most direct—path toward uniformity would be intervention by the Supreme Court. A definitive ruling could resolve the conflicting standards and provide nationwide consistency. However, Supreme Court review in copyright cases is rare, particularly when the underlying disputes are typically resolved through private settlement. The circuit split in sampling jurisprudence has existed for nearly a decade, and no sampling case has yet reached the Court, partly because most parties prefer settlement to the uncertainty and cost of prolonged litigation.[79]

Even if the Court accepts a case on this issue, there is a legitimate concern that its ruling could entrench an overly rigid or permissive rule. A blanket endorsement of Bridgeport’s strict liability could chill creative expression and disproportionately burden emerging artists. Conversely, wholesale adoption of the Ninth Circuit’s de minimis standard might weaken the enforceability of sound recording rights and diminish the incentive to invest in original music production. In either scenario, a one-size-fits-all ruling risks ignoring the nuance and diversity of sampling practices in today’s music landscape. The Court may be more likely to adopt a balanced framework that reflects core copyright principles—such as fair use, market harm, and the purpose of the use—while offering flexibility for evolving creative practices. The justices might also be persuaded by the practical realities of enforcement, considering whether a rule is administrable for lower courts and whether it aligns with the economic structure of the music industry.

Additionally, it is worth considering that the Ninth Circuit encapsulates California, a state with deep ties to the entertainment industry.[80] As the regional circuit encompassing much of the U.S. music production hub, the Ninth Circuit may have developed a more grounded understanding of industry norms and the practical implications of sampling. This regional perspective could lend credibility to its de minimis approach, especially if the Court is attuned to how its ruling will affect not just legal doctrine but the day-to-day practices of artists, producers, and record labels. While geographic proximity does not determine legal correctness, it might lend weight to the Ninth Circuit’s interpretation as more responsive to the needs and realities of the industry most directly impacted by the decision. At the same time, it is worth noting that the Sixth Circuit includes Tennessee—another major music hub with deep roots in songwriting and music production—suggesting that it also brings industry proximity and insight to the table.[81] California may, however, have a comparatively greater interest in fostering a flexible approach to sampling, as it is home to many pop and hip-hop artists who rely more heavily on sampling as part of their creative process.[82] In contrast, Nashville, a hub for country music, tends to employ sampling far less frequently.[83] Accordingly, artists in Tennessee may be more concerned with the robust protection of original compositions, while those in California may prioritize the freedom to build upon existing works.

2. Legislative Action

Another route is congressional action to amend the Copyright Act and directly address the treatment of digital sampling. This could involve codifying a de minimis exception for sound recordings and aligning the statutory framework with long-standing principles applied in other areas of copyright law. A legislative fix would bring certainty and coherence to this unsettled area while offering the opportunity to tailor specific provisions to modern industry needs. However, legislative reform is often slow-moving and subject to heavy lobbying from industry stakeholders with competing interests.[84] Rights holders and huge record labels may resist changes that diminish their control over sampling, while advocacy groups for independent artists may push for more permissive rules. Crafting legislation that balances these interests would require significant political will and technical precision. Nonetheless, statutory clarification could provide a stable foundation for courts and creators alike, particularly if it includes a straightforward test or safe harbor provisions for non-infringing uses.

3. Hybrid Approach

A third and potentially more pragmatic solution lies in developing a hybrid doctrine—either judicially crafted or legislatively endorsed—that incorporates the strongest aspects of both circuits’ reasoning. Such a framework could adopt a multi-factor balancing test to evaluate when sampling rises to the level of infringement. Under this approach, courts could consider the duration of the sample, its recognizability or distinctiveness, the transformative nature of the use, the market impact on the original work, the intentionality of the copying, and audience perception (whether the sample would be identifiable to the average listener). This more context-sensitive approach would preserve flexibility for artists engaged in creative reuse while protecting the legitimate economic interests of original rights holders. It would also mitigate the extremes of the Sixth Circuit’s bright-line prohibition and the Ninth Circuit’s potentially overbroad de minimis allowance. Courts already apply similar balancing tests in other copyright contexts, such as fair use,[85] suggesting that a calibrated framework could be workable and familiar to judges and litigants.

Importantly, this hybrid model could also promote consistency without eliminating discretion, allowing courts to assess each case based on its factual circumstances rather than rigid categorical rules. Such a standard could evolve to account for new technologies and changing industry practices—something static legislation or sweeping judicial rulings may struggle to do. While no solution is without compromise, a nuanced, flexible standard may ultimately offer the most balanced path forward, protecting the rights of original creators and the creative potential of future artists.

IV. Conclusion

The circuit split over the de minimis defense in music sampling underscores a fundamental tension in copyright law: the need to protect original creators while fostering artistic innovation. The Sixth Circuit’s rigid stance in Bridgeport—rejecting the de minimis exception and declaring “get a license or do not sample”—prioritizes legal certainty and the rights of copyright holders. In contrast, the Ninth Circuit’s approach in Ciccone, which permits de minimis copying, embraces flexibility and aligns with broader copyright principles that allow for transformative uses. This divergence has significant implications. It creates legal uncertainty for artists and producers, encourages forum shopping, and disproportionately impacts emerging musicians who rely on sampling as a creative tool. The current patchwork of standards complicates nationwide music distribution and risks stifling innovation in sample-dependent genres like hip-hop and electronic music.

Resolving this split requires a balanced solution. Supreme Court intervention could provide uniformity but risks entrenching an overly rigid or permissive standard. Legislative action offers a chance to codify a clear de minimis exception tailored to modern industry practices, though political hurdles remain. A hybrid approach—incorporating factors like sample duration, recognizability, transformative use, and market impact—may best reconcile the competing interests of copyright protection and creative freedom. Ultimately, the law must adapt to the realities of music production, where sampling is both an artistic staple and a legal minefield. A nuanced framework that safeguards original works without stifling innovation would serve the interests of creators, the industry, and the public. Until then, the circuit split leaves artists navigating a fragmented landscape where creativity rules depend on geography rather than principle.

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[1] See Artur Galocha, ‘I’ve heard that sound before!’ How sampling influenced hip-hop, Wash. Post (Aug. 24, 2023, 10:14 A.M. EDT), https://www.washingtonpost.com/entertainment/2023/08/24/ive-heard-that-sound-before-how-sampling-influenced-hip-hop/ [https://perma.cc/WJ74-FFUJ].

[2] See Adam Baldwin, Music Sampling and the De Minimis Defense: A Copyright Law Standard, 19 UIC Rev. Intell. Prop. L. 310 (2020).

[3] See Galocha, supra note 1.

[4] Id.

[5] See Baldwin, supra note 2 at 311-12.

[6] See Spencer K. Gray, Circuit Split: An Efficient Rule to Govern the Sampling of Sound Recordings, 106 K.Y. L. J. ONLINE (2018), https://www.kentuckylawjournal.org/online-originals/index.php/2018/01/26/circuit-split-an-efficient-rule-to-govern-the-sampling-of-sound-recordings [https://perma.cc/GEW2-6G73].

[7] Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 801 (6th Cir. 2005).

[8] See VMG Salsoul, LLC v. Ciccone, 824 F.3d 871, 884 (9th Cir. 2016).

[9] See Baldwin, supra note 2 at 327; see also Gray, supra note 6.

[10] Paul Kimani, Towards a Copyright Law that Encourages Creativity, 63 IDEA 354, 354-55 (2023).

[11] See Baldwin, supra note 2 at 313; see also Gray, supra note 6.

[12] See Kimani, supra note 10 at 354-55.

[13] Copyright Act of 1976, Pub. L. 94-553, 90 Stat. 2541.

[14] See Ben Tauber, Clarifying the De Minimis Doctrine in Copyright Law, 14 N.Y.U. J. Intell. Prop. & Ent. L. 279, 281 (2024).

[15] See Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 801 (6th Cir. 2005).

[16] See VMG Salsoul, LLC v. Ciccone, 824 F.3d 871, 874 (9th Cir. 2016).

[17] Copyright Act of 1976, , Pub. L. 94-553, 90 Stat. 2541.; see The United States Copyright Office, General Guide to the Copyright Act of 1976, Libr. Cong. (Sept. 1977), https://www.copyright.gov/reports/guide-to-copyright.pdf [https://perma.cc/DM2M-ZEZ4]; see also Copyright Timeline: A History of Copyright in the United States, Ass’n of Rsch. Libr.(last visited Apr. 4, 2025), https://www.arl.org/copyright-timeline/ [https://perma.cc/42XJ-NX87].

[18] See Copyright Timeline: A History of Copyright in the United States, supra note 17.

[19] See id.

[20] Copyright Registration for Musical Compositions, Libr. Cong. (Aug. 2023), https://www.copyright.gov/circs/circ50.pdf [https://perma.cc/THE2-XD7P].

[21] See Larry Wayte, Copyright Theory and History, in Pay for Play: How the Music Industry Works, Where the Money Goes, and Why (2023).

[22] Copyright Registration for Musical Compositions, supra note 20.

[23] 17 U.S.C. § 106.

[24] 17 U.S.C. § 114(b).

[25] 17 U.S.C. § 102(a).

[26] Copyright Registration for Musical Compositions, supra note 20.

[27] Id.

[28] Music Licensing for Concert Bands, Am. Soc’y of Composers, Authors and Publishers, https://www.ascap.com/music-users/types/concert-band-landing-page (last visited Apr. 9, 2025) [https://perma.cc/Q9P9-SYUC].

[29]Resources and Learning: Licensing,  Recording Indus. Ass’n of Am., https://www.riaa.com/resources-learning/licensing/ (last visited Apr. 9, 2025) [https://perma.cc/7ND3-5HV4].

[30] See, Music Copyright Cases, Musicians Inst. Libr., https://library.mi.edu/musiccopyright/currentcases (Dec. 2, 2022, 11:02 AM) [https://perma.cc/X7XY-Z8EC]. 

[31] Jonah Valdez, Yung Gravy settles with Rick Astley for using ‘Never Gonna Give You Up’ (the Rickroll song), L.A. Times (Sep. 28, 2023, 2:50 PM PT),  https://www.latimes.com/entertainment-arts/music/story/2023-09-28/yung-gravy-rick-astley-lawsuit-never-gonna-give-you-up-rickroll [https://perma.cc/6TE8-DEM2].

[32] Yung Gravy, Betty (Get Money), on Marvelous (Republic Records 2022).

[33] Rick Astley, Never Gonna Give You Up, on Whenever You Need Somebody (RCA Records 1987).

[34] Valdez, supra note 31.

[35] Id.

[36] Id.

[37] Ilana Kaplan, Rick Astley Settles Vocal Impersonation Lawsuit Against Yung Gravy over ‘Betty (Get Money)’, People (Sep. 29, 2023, 12:00 AM EDT), https://people.com/rick-astley-settles-vocal-impersonation-lawsuit-against-yung-gravy-7976268 [https://perma.cc/KRW3-7X7Z].

[38] Infringement claims for musical compositions typically focus on substantial similarity—whether the copied elements are qualitative or significant. Nicholas Booth, Backing Down: Blurred Lines in the Standards for Analysis of Substantial Similarity in

Copyright Infringement for Musical Works, 24 J. Intell. Prop. L. 99, 100 (2016).

[39] See Tauber, supra note 14 at 281.

[40] “In this vein, courts have long recognized a doctrine known as de minimis—short for de minimis non-curat lex, or ‘the law does not concern itself with trifles.’” Id.

[41] See id.

[42] See id. at 283.

[43] Newton v. Diamond, 388 F.3d 1189, 1196-97 (9th Cir. 2003); see Baldwin, supra note 2 at 312-13.

[44] Compare Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 801 (6th Cir. 2005); with VMG Salsoul, LLC v. Ciccone, 824 F.3d 871, 874, 884 (9th Cir. 2016).

[45] Bridgeport, 410 F.3d at 801.

[46] Ciccone, 824 F.3d at 884.

[47] Bridgeport, 410 F.3d at 801.

[48] Id.

[49] Id. at 800.

[50] Id. at 800-01.

[51] Id. at 798-99.

[52] Id. at 801, 803-04.

[53] Id. at 801.

[54] VMG Salsoul, LLC v. Ciccone, 824 F.3d 871, 874, 884 (9th Cir. 2016).

[55] Id. at 884.

[56] Id. at 883.

[57] Id. at 882-83.

[58] Id. at 881.

[59] Id. at 877, 883.

[60] Id. at 886-87 n.11.

[61] Id. at 887 n.11.

[62] Id. at 881.

[63] See Mark H. Wittow, Sometimes Borrowing isn’t Stealing: De Minimis Sampling of Music Sound Recordings isn’t Copyright Infringement, Say Two Key Courts in the United States and Germany, K&L Gates (June 16, 2016), https://www.klgates.com/Sometimes-Borrowing-Isnt-Stealing-De-Minimis-Sampling-of-Music-Sound-Recordings-Isnt-Copyright-Infringement-Say-Two-Key-Courts-in-the-United-States-and-Germany-06-16-2016 [https://perma.cc/B2VS-3V9E].

[64] Ciccone, 824 F.3d at 880-81; Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 800 (6th Cir. 2005).

[65] Bridgeport, 410 F.3d at 799-801.

[66] See id.

[67] Id.

[68] See id.

[69] Id. at 801.

[70] See VMG Salsoul, LLC v. Ciccone, 824 F.3d 871, 886 (9th Cir. 2016).

[71] See id.

[72] See id.

[73] See Baldwin, supra note 2 at 320-21.

[74] See id.

[75] Jonathan D. Kramer, The Impact of Technology on the Musical Experience, Coll. Music Soc’y, https://www.music.org/cms-reports/celebrating-the-40th-anniversary-of-the-museum-of-modern-art-tape-music-concert/the-impact-of-technology-on-the-musical-experience.html (last visited Apr. 4, 2025) [https://perma.cc/UG95-ATXN].

[76] See Gray, supra note 6.

[77] See Brendan Morrow, A brief history of copyright cases against musicians, The Week (May 5, 2023), https://theweek.com/culture/1023092/a-brief-history-of-copyright-lawsuits-against-musicians [https://perma.cc/VR4F-FGTY].

[78] See id.

[79] Baldwin, supra note 2 at 324.

[80] Joseph Fishman, Music Sampling Rights, Talks on Law (May 16, 2023), https://www.talksonlaw.com/briefs/music-sampling-rights [https://perma.cc/6XUC-S56F].

[81] Id.

[82] Galocha, supra note 1.

[83] See id.

[84] Baldwin, supra note 2 at 324.

[85] Kevin Smith, How balanced is the balancing test?, Duke Univ. Libr. (Dec. 29, 2010), https://blogs.library.duke.edu/scholcomm/2010/12/29/how-balanced-is-the-balancing-test/ [https://perma.cc/TBA6-LQE3].

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