To Sample or Not to Sample?

Conflict is brewing among the United States Courts of Appeals as to when a musical artist's use of a sample from another artist's musical work is non-infringing. Three key opinions analyzing this issue were decided by the federal Circuit Courts governing the states in which the music industry proliferates — New York, California and Tennessee — and each reached different conclusions.

In 2005, the Sixth Circuit Court of Appeals (which includes the federal courts in Tennessee) held that the use of a two-second sample from a sound recording used in a rap song that was included on the soundtrack of the motion picture "I Got the Hook Up" constituted copyright infringement. In 2016, the Ninth Circuit Court of Appeals held that Madonna's use of a .23-second sample in her hit song "Vogue" did not constitute copyright infringement. On May 31, 2017, the Second Circuit similarly weighed in with a decision that Drake's use of a 35-second sample from a Jimmy Smith spoken-word