The state of the law in the United States is complicated by the fact that the de minimis doctrine is, and has been a muddled doctrine. Copyright law and patent law allow future authors and inventors to build upon the works of previous rights holders. In the patent world, the new work must be a non-obvious improvement on the original patent. In copyright, the key is that the secondary user cannot take a substantial portion of the prior author’s copyrightable expression. There is no infringement without substantial similarity. By definition, a de minimis taking is the polar opposite of substantial similarity. Nonetheless, the courts do not provide a clear guideline as to when a taking advances beyond de minimis to a substantial taking. This creates a significant challenge for those who are in the creative industries and may have opportunity to use copyrighted works in the process of creating new works. For example, filmmakers and documentary producers are often unsure of what they can and cannot use in an incidental manner in the background of their films. When courts look at the de minimis question, they focus on whether the alleged taking was too much of the existing work as well as whether the taking was of protected or unprotected elements of the existing work.

As to the question of how much is too much, it is a matter of degree. As we see in copyright law, there are times that the application of the statute will be affected by the actual classification of the work that is allegedly being infringed. Of course, the digital sampling issue specifically revolves around sound recordings. Two major cases in different circuits have undertaken the question of whether a quantitatively insignificant digital sample of a sound recording could avoid copyright infringement liability by claiming a de minimis defense. The sixth and ninth circuits have come to divergent conclusions on this question. But this is much more than an issue of a circuit split – digital sampling, and more specifically the legal treatment it receives is a global issue.

Over the years, digital samples have been used in a myriad of ways. Some examples include the rapid fire multiple-sample collages that were popularized by the likes of Public Enemy producer Hank Shocklee; the short distinctive samples used as musical punctuation by Teddy Riley; the extensive samples used as the loop for entire songs by producers like Sean Combs; and the use of short sampled segments manipulated by pitch and key to create musical soundscapes for popular songs. In some cases, it is clear that the underlying work is a significant element in the new song. However, in other cases, the amount used is extremely short, or the sample has been transformed in such a significant way as to be unrecognizable. This article looks at the development of the law, in the United States and around the globe as it responds to the increased use of digital samples in recorded music. Ultimately, the suggested approach is one where the use of sound recordings is treated similarly to the use of musical motifs in songs, i.e., if the use is de minimis, it should be classified as an exception to copyright infringement or considered a fair use. On the other hand, if the use is one that is recognizable by the lay observer, one that would negatively affect the market of the original, and one that does not survive the scrutiny of fair use analysis, then the use should require a license from the copyright owners.