By: Shaina Wolkenberg ‘29
Volume XI – Issue I – Fall 2025
I. COPYRIGHT PRINCIPLES
Article 1 Section 8 of the US constitution grants the United States Congress the right to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” [1] This clause serves as the foundation of The Copyright Law of the United States, codified in Title 17 of the United States Code. It establishes US copyright law as a code of laws intended to promote creativity by protecting original expression. United States copyright law protects original works of authorship by granting automatic legal ownership over a variety of creative works, including music. [2] However, copyright law may need to evolve to align with developing technology and modes of creativity in order to continue advancing the progress of the arts.
Under §106 of Title 17, copyright holders assume protections that last for the duration of the owner’s lifetime plus seventy years. If the work was made for hire—and, therefore, technically belongs to an employer or commissioning party instead of the creator—the copyright protections automatically last for 95 years. All copyright holders maintain the following exclusive rights: reproduction, derivation, distribution, public performance, and public display. [3] By automatically granting these rights to original works, the government aims to maximize creativity and incentivize the creation of intellectual goods. Individuals are more likely to create if there is personal gain (i.e., economic incentive) and reason to believe that their creations can not be legally reproduced, derived, distributed, performed, or displayed by someone other than the creator themself. [4]
To be granted copyright protections upon creation, a work must be “an original work of authorship fixed in a tangible medium of expression,” display at least a minimal degree of creativity, and be an independent creation of its author. [5] A tangible medium of expression encompasses any form through which a work can be perceived, reproduced, or otherwise communicated, whether directly or with the aid of a device. [6] A melody that was hummed by a songwriter but never recorded, for instance, does not have copyright protections because it is not “fixed in a tangible medium of expression.” [7] Furthermore, the threshold for “creativity” remains extremely low, as established in Feist Publications, Inc. v. Rural Telephone Service Co. (1991), where the Supreme Court held that originality requires only independent creation and a “modicum” of creativity. [8]
Under the doctrine of fair use in United States copyright law, the reproduction or other use of copyrighted works for the purposes of criticism, comment, news reporting, teaching, scholarship, or research is not an infringement of copyright protections. [9] US copyright law provides four considerations for determining whether or not a use of copyrighted work is fair use. They are the following:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. [10]
In recent decades, courts have placed increasing emphasis on the purpose and character of use, particularly whether the secondary use is transformative. Transformative use encapsulates use of copyrighted material with the addition of new expression, meaning, or message to the original work rather than a mere replication. [11] In the landmark case Campbell v. Acuff-Rose Music, Inc. (1994), the Supreme Court held that a parody of Roy Orbison's rock ballad, "Oh, Pretty Woman,” released by the rap group 2 Live Crew under the title “Pretty Woman,” did not violate copyright law because the parody constituted a transformative use and thus fell within the scope of fair use, even though the song was commercially distributed. [12] This case serves as the legal precedent for further interpretations of transformative use under U.S. copyright law, clarifying that the addition of new expression or meaning outweighs commercial intent. Modern music sampling and interpolation still rely heavily on Campbell v. Acuff-Rose, Inc. (1994) as a cornerstone of how the courts balance creative innovation with creator protections.
II. JUDICIAL TREATMENT OF SAMPLING
As recording and editing technology has continued to progress, so has the debate over what connotes transformative use of someone else’s musical intellectual property in regard to sampling. Much of this debate has taken place in the hip hop industry. In 2005, Bridgeport Music, Inc and some of its business partners filed a suit against Dimension Films after they used a small sample of a guitar solo in “Get Off Your Ass and Jam” by George Clinton, Jr. and the Funkadelics in the soundtrack of their film I Got a Hook Up, which was released in theaters, as well as on DVD, VHS, and cable television. [13] The portion of the song used was “a two-second sample from the guitar solo” that was copied, the pitch was lowered, and the sample was "looped" and extended to 16 beats. [14] The sample appeared numerous times throughout the song in the soundtrack, each time for about seven seconds. [15] The portion of the song at issue was an arpeggiated chord, which the court defined as “three notes that, if struck together, comprise a chord but instead are played one at a time in very quick succession.” [16] Owing to the fact that prohibiting anyone other than the creators of “Get Off” from playing the chord in question would be unreasonable, the court focused on the aural effect of how the notes were played. The notes and the way they were played produced a highpitched, whirling sound that grabbed the audience's attention and sparked anticipation for what was to come. [17] Thus, the district court determined that the way the chord was played was creative enough to justify copyright protection, and it had been infringed upon.
However, the decision was appealed, and the question facing the Sixth Circuit Court was then whether or not the de minimis exception to copyright infringement—when an infringement is so trivial that it is deemed unactionable—extended to sound recording. The court knew it would be an important decision because advances in technology were making instances of digital sampling very common, and those instances of sampling were often the genesis of copyright disputes. Therefore, the judge aimed to use this case to establish a bright line test that would allow for creators to “enjoy the fruits of their creations” without fencing those creations off from the world at large. [18] In a major ruling, the court stated “Get a license or do not sample.” [19] The Sixth Circuit Court viewed Dimension Films’ use of the sample from “Get Off” as infringement because ruling this way does not stifle creativity. Individuals, although unable to directly borrow samples of protected sound recordings from other creatives, are able to replicate, for example, the riff in their own studio. [20] Therefore, prohibiting directly borrowing samples does not hinder creativity significantly. Furthermore, sampling can never be accidental, so the court believed that a broad prohibition of sampling without a license would avoid the most possible confusion and subjectivity in further debates surrounding the issue of sampling sound recordings. [21]
However, a decision in the Ninth Circuit Court of Appeals eleven years later conflicted with the legal guidelines of sound recording sampling put forth in Bridgeport v. Dimension Films. In 2016, VMG Salsoul, LLC, sued the producer of Madonna’s “Vogue,” Shep Pettibone, for an alleged copyright infringement. Pettibone ostensibly copied a 0.23-second segment of horns from the song “Love Break,” which is owned by VMG Salsoul, and used a modified version of the horns when creating “Vogue.” [22] VMG Salsoul declared that Defendants (i.e., Madonna, Pettibone, and others) therefore violated their copyrights to “Love Break". The court determined that, because a general audience would be unable to identify the sample of “Love Break” in Madonna’s “Vogue,” this was not an instance of copyright infringement. [23] More specifically, the district court applied the precedential legal rule that "de minimis" copying does not constitute copyright infringement and maintained that, even if actual copying was proved, the claim failed because the copying was trivial. [24] Furthermore, the Ninth Circuit Court of Appeals formally disagreed with the ruling in Bridgeport v. Dimension Films, claiming that “the ‘de minimis’ exception applies to infringement actions concerning copyrighted sound recordings, just as it applies to all other copyright infringement actions.” [25]
Likely due in part to the courts’ inconsistent ruling on the use of samples in music production, many artists choose to settle sampling conflicts outside of the courtroom. For instance, Kanye West’s song “Bound 2” featured a sample from the Ponderosa Twins Plus One song “Bound.” A member of the vocal group, Ricky Spicer, sued Kanye West and his labels for the use of their sample without proper licensing, but instead of continuing to battle in court, the case was settled privately. [26] Cases such as this one are dismissed after the parties come to an agreement. These settlements often involve retroactive licensing fees and nondisclosure agreements, which prevent setting legal precedents by pursuing the dispute further in court.
III. JUDICIAL TREATMENT OF INTERPOLATION
Seemingly more subjective and difficult for the courts to agree on are instances of interpolation disputes. The United States Copyright Office defines interpolation as “taking part of an existing musical work (as opposed to a sound recording) and incorporating it into a new work.” [27] This differs from sampling because it does not involve using audio sounds contained in someone’s preexisting body of work. Instead, interpolation uses new audio that implicates a preexisting original work, so a license is not always necessary. [28] According to U.S. copyright law, the exclusive rights in sound recordings do not extend to separate but alike recordings. [29] However, despite not needing permission to use the master recording since they are creating original audio, artists who interpolate other people’s work might need to obtain permission from the owner of the composition copyright. [30]
In 2015, Pharrell Williams and Robin Thicke filed a complaint against the Marvin Gaye Estate for declaratory relief, hoping to establish that their 2013 best-selling single “Burred Lines” did not infringe on the copyright protections of Marvin Gaye’s 1977 hit song “Got To Give It Up.” [31] The intellectual property at issue was the sheet music registered with the copyright office under the Copyright Act of 1909, which contains the exclusive rights reserved by the copyright holder to reproduce, distribute, and create derivative works based on the original composition. [32] After establishing ownership of the copyright over the music in question, the Marvin Gaye Estate then sought to prove that Williams and Thicke had copied a significant portion of the protected work in their song. The musicologist employed by the Marvin Gaye Estate found a number of similarities between the two pieces, such as a “signature phrase, hooks, hooks with backup vocals, ‘Theme X,’ backup hooks, bass melodies, keyboard parts, and unusual percussion choices.” [33] Williams and Thicke’s musicologist denied the existence of these similarities. [34] The case proceeded to a seven day jury trial during which Williams and Thicke acknowledged drawing inspiration from the Marvin Gaye song but denied infringing on the estate’s copyright. At the conclusion of the trial, the jury sided with the Marvin Gaye Estate. [35]
In the District Court’s analysis, the judge acknowledged that each allegation of infringement in music will be unique, and he cited the “extrinsic test,” a factual method of identifying when an artist has gone from borrowing an idea to copying someone else’s expression. [36] It involves the testimony of expert witnesses, and it is accompanied by the “intrinsic” test, which considers the perspective of the ordinary listener. [37] As seen in Williams v. Gaye, as long as the plaintiff can prove through expert analysis that the similarity between the work in question and their original copyrighted work is substantial, the extrinsic test is met, and substantial similarity can be recognized. [38]
United States courts have thus far treated instances of interpolation on a case by case basis due to the difficulty of establishing objective rules for determining substantial similarity, particularly when new compositions borrow elements that evoke, rather than directly replicate, earlier works. Another recent instance of contentious potential copyright infringement in the popular music industry was ruled on for a final time in 2022: Katy Perry v. Flame, also known as Gray v. Hudson. [39] Christian rapper Flame (Marcus Gray) filed a suit against world renowned pop-artist Katy Perry, claiming that her hit song “Dark Horse” copied the eight-note ostinato from his 2008 song “Joyful Noise.” [40] The original trial included expert testimonies and found the defendants liable for copyright infringement. $2.8 million in damages were awarded to the Plaintiffs. [41] However, a district court and, later, the Ninth Circuit Court of Appeals determined that the ostinato in question was a commonplace musical element. [42] Due to the fact that copyright protections only apply to a musical excerpt if a minimal degree of creativity exists, the ostinato in question—determined to be a musical building block—was not considered protected by copyright law, even if the song at large is protected. [43] Therefore, Perry’s case affirmed that copyright does not extend to basic elements of music, such as short rhythmic or melodic sequences, even when those elements contribute significantly to the overall sound of a work of music. This decision in appellate court underscores the courts’ increasing tension between stifling artistic innovation grounded in shared musical vocabulary and maintaining the rights of creators seeking protection for their artistic labor and originality.
IV. MODERNIZING MUSICAL AUTHORSHIP
As demonstrated in the aforementioned sampling and interpolation copyright infringement cases, current copyright law in the United States frequently struggles to balance the protection of original works with the encouragement of artistic innovation, especially in the realm of popular music, where sampling and interpolation have become fundamental modes of creativity. As seen in Williams v. Gaye, courts seemingly err on the side of protection, naming even transformative uses of existing sound recordings or compositions as potential copyright infringement. While this approach serves the interests of copyright holders, it often comes at the expense of emerging creativity that engages in dialogue with existing traditions. The particular challenge that sampling and interpolation present to the courts lies in how the law defines “originality” and “ownership” in a medium that is uniquely iterative, often borrowing from shared foundational rhythmic, melodic, and harmonic elements.
At the center of this tension is the reality that, when it comes to music, transformativeness is applied inconsistently. The courts struggle to determine what constitutes substantial similarity and what is original enough to avoid liability. For instance, lower level courts may find, as in the instance of Katy Perry’s “Dark Horse,” that a shared sequence of eight notes is sufficient evidence to establish infringement, while their superiors are of the belief that the same sequence of eight notes is too common to even be protected under copyright law. [44] Although these infringement cases raise difficult and abstract questions about ownership, it is still true that inconsistency in sampling and interpolation cases indicate a key issue in United States Copyright Law: modern courts are led by outdated guidelines for musical authorship that predate the digital age and the creativity it fosters.
A potential long-term solution to this challenge would be the creation of a transformative use license—a new category under U.S. copyright law that would allow artists to borrow from preexisting musical works under standardized, transparent terms. Contemporary artists can currently avoid being sued for copyright infringement by preemptively obtaining the proper license and permission from the copyright holder if they believe that their work uses or closely resembles a protected element of an existing composition. [45] However, these negotiations are often arduous and not easily accessible. Similar to the compulsory mechanical license that regulates covers of preexisting songs, a new transformative use license could permit transformative uses such as sampling or interpolation without requiring extensive individual negotiations or litigation by requiring that artists pay a set royalty fee to the original rights holders. [46] The statutory license could also incorporate opt-out or conditional-use provisions, enabling original artists to restrict certain uses. For example, an artist could allow sampling for commercial music releases while withholding permission for the use of their music in film, television, or advertising. This framework would create a more consistent and equitable balance between protection and creativity by recognizing how transformative use can generate new meaning while consistently attributing original works to their owners. Codifying a process for obtaining permission to engage in creative reuse would allow Congress to modernize copyright law to reflect the undeniable changes that have come with the digital-era of musical creation.
Ultimately, the originators of copyright law established these systems in order to promote creativity, not stifle it. The vitality of that primary goal is dependent on copyright law’s ability to evolve with developing technology and modes of creativity. Statutory reform might be the necessary next step in helping the law to realign itself with its constitutional mandate: to advance the progress of the arts by encouraging creativity, not control.
Endnotes
[1] 17 U.S.C.
[2] 17 U.S.C. § 102.
[3] 17 U.S.C. §106.
[4] Mei-lan Stark, “5 Ways Copyright Laws Encourage Personal Expression and Creativity,” U.S. Chamber of Commerce, April 25, 2022, Accessed October 30, 2025. https://www.uschamber.com/intellectual‐property/fiveways-copyright-laws-encourage-personal-expression-and-creativity
[5] 17 U.S.C. § 102.
[6] 17 U.S.C. § 101.
[7] 17 U.S.C. §102.
[8] Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 342, 111 S. Ct. 1282, 1286 (1991).
[9] 17 U.S.C. § 107.
[10] 17 U.S.C. § 107.
[11] 17 U.S.C. § 107.
[12] Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 583, 114 S. Ct. 1164, 1173 (1994).
[13] Bridgeport Music, Inc. v. Dimension Films, 230 F. Supp. 2d 830, 832 (M.D. Tenn. 2002).
[14] Bridgeport Music, Inc. v. Dimension Films, 230 F. Supp. 2d 830, 841 (M.D. Tenn. 2002).
[15] Bridgeport Music, 230 F. Supp. 2d at 841. Id.
[16] Bridgeport Music, Inc. v. Dimension Films, 230 F. Supp. 2d 830, 839 (M.D. Tenn. 2002).
[17] Bridgeport Music, 230 F. Supp. 2d at 830, 839.
[18] Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 800 (6th Cir. 2005).
[19] Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 801 (6th Cir. 2005).
[20] Bridgeport Music, 410 F.3d 792, 801.
[21] Bridgeport Music, 410 F.3d 792, 801.
[22] VMG Salsoul, Ltd. Liab. Co. v. Ciccone, 824 F.3d 871, 875 (9th Cir. 2016).
[23] VMG Salsoul, Ltd. Liab. Co. v. Ciccone, 824 F.3d 871, 887 (9th Cir. 2016).
[24] VMG Salsoul, 824 F.3d 871, 887.
[25] VMG Salsoul, Ltd. Liab. Co. v. Ciccone, 824 F.3d 871, 874 (9th Cir. 2016).
[26] Evan Minsker, “Kanye West Settles ‘Bound 2’ Sample Lawsuit,” Pitchfork, May 27, 2015, https://pitchfork.com/news/59730-kanye-west-settles-bound-2-sample-lawsuit/
[27] United States Copyright Office, Sampling, Interpolations, Beat Stores and More: An Introduction for Musicians Using Preexisting Music, December 2021, https://www.copyright.gov/music-modernization/educationalmaterials/Sampling-Interpolations-Beat-Stores-and-More-An-Introduction-for-Musicians-Using-Preexisting.pdf
[28] U.S. Copyright Office, Sampling, Interpolations, Beat Stores & More (Dec. 2021).
[29] 17 U.S.C. § 114(b).
[30] 17 U.S.C. § 114(b).
[31] Williams v. Gaye, 885 F.3d 1150, 1160 (9th Cir. 2018)
[32] Copyright Act of 1909, ch. 320, 35 Stat. 1075 (repealed 1976).
[33] Williams v. Gaye, 885 F.3d 1150, 1161 (9th Cir. 2018)
[34] Williams, 885 F.3d 1150, 1161
[35] Williams v. Gaye, 885 F.3d 1150, 1162 (9th Cir. 2018)
[36] Williams v. Gaye, 885 F.3d 1150, 1159 (9th Cir. 2018)
[37] Williams, 885 F.3d 1150, 1159
[38] Williams, 885 F.3d 1150, 1159
[39] Gray v. Hudson, No. 14CV1183 HEA, 2015 U.S. Dist. LEXIS 95969, at *3 (E.D. Mo. July 23, 2015)
[40] Gray v. Hudson, 28 F.4th 87, 94 (9th Cir. 2022)
[41] Gray v. Hudson, 28 F.4th 87, 95 (9th Cir. 2022)
[42] Gray v. Hudson, 28 F.4th 87, 97 (9th Cir. 2022)
[43] Gray v. Hudson, 28 F.4th 87, 100 (9th Cir. 2022)
[44] Gray v. Hudson, 28 F.4th 87, 102 (9th Cir. 2022)
[45] United States Copyright Office, Sampling, Interpolations, Beat Stores and More: An Introduction for Musicians Using Preexisting Music, December 2021, https://www.copyright.gov/music-modernization/educationalmaterials/Sampling-Interpolations-Beat-Stores-and-More-An-Introduction-for-Musicians-Using-Preexisting.pdf
[46] United States Copyright Office, Sampling, Interpolations, Beat Stores and More: An Introduction for Musicians Using Preexisting Music, December 2021, https://www.copyright.gov/music-modernization/educationalmaterials/Sampling-Interpolations-Beat-Stores-and-More-An-Introduction-for-Musicians-Using-Preexisting.pdf