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A Music Industry Circuit Split: The De Minimis Exception in Digital Sampling


When hip-hop icon Biz Markie released his album “All Samples Cleared!” he joked of the end of what was known as the “Golden Age” of digital sampling in the hip-hop and rap music industry. The Golden Age began in the late 1980s, and because there was no regulation of the practice, it was a period of musical enlightenment in which musicians could freely utilize digital sampling without legal repercussion. However, in 2005, the United States Court of Appeals for the Sixth Circuit handed down an opinion that sent shock waves across the music industry. In Bridgeport Music Inc. v. Dimension Films, the Sixth Circuit cracked down on digital sampling when it ruled that any use of a copyrighted sound recording amounted to copyright infringement, no matter the size of the sample taken. Although the opinion was staunchly criticized, it remained the only digital sampling case decided by the federal court of appeals for over ten years. Yet, in 2016, the United States Court of Appeals for the Ninth Circuit formalized the divide when it held that the de minimis defense—the rule that a small amount of copying is permitted—does, in fact, apply to sound recordings. This opinion stands in direct opposition to the Bridgeport holding, thereby creating a circuit split on the issue of de minimis use of digital sampling. If this rift remains unresolved, it will continue to send a wave of unpredictability across the music industry that will both chill artistic creativity and stifle the judicial economy.

Michaela S. Morrissey *

*J.D., 2022, University of Richmond School of Law.