Under Pressure: The State of Sampling in the Music IndustryJune 20, 2016

Earlier this month, Madonna won the appeal of a copyright infringement lawsuit before the 9th Circuit Court of Appeals. The plaintiff, VMG Salsoul LTD., alleged that a tiny (0.23 second!) sample of the horns from the song “Love Break“was used in Madonna’s song “Vogue.‚¬ The majority held that the sample was too small to be considered infringement. Circuit Judge Susan Graber wrote, “A reasonable jury could not conclude that an average audience would recognize an appropriation of the ‘Love Break’ composition.” This decision stands in stark contrast to a long precedent of lawsuits tightening the reins on sampling in the music industry.

Sampling without a license was common in the hip-hop genre, until Vanilla Ice got sued by Queen and David Bowie for sampling their song “Under Pressure‚¬ in his song “Ice Ice Baby.”The case settled, and Queen and Bowie were given writing credits on the song. Since then, artists have been cracking down on the practice of sampling. Many have been successful, thanks to two landmark decisions that established a strict standard for sampling in music:


Biz Markie – “Alone Again“(1991)

Gilbert O’Sullivan filed a lawsuit, claiming that Biz Markie sampled his song “Alone Again, Naturally.‚¬ The resulting case,Grand Upright Music Ltd. v. Warner Bros. Records, Inc., 780 F. Supp. 182 (S.D.N.Y. 1991) granted a preliminary injunction for copyright infringement, and all unsold records were pulled off the shelves. Famously, the opinion began with “Thou shalt not steal‚¬, which made it clear that artists had to get permission for every single sample they used, or face the consequences.


N.W.A. – “100 Miles and Runnin“(2005)

Almost 15 years later, that standard was taken to a new extreme in Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 795 (6th Cir. 2005). N.W.A. sampled a two second guitar chord from Funkadelic’s “Get Off Your Ass and Jam.‚¬ The court held that any usage of another’s work without permission would violate copyright law, regardless of the length. The opinion stated, “Get a license or do not sample. We do not see this as stifling creativity in any significant way.” This case was thought to signal the end of the de minimus doctrine in music sampling.


The decision in the “Vogue”lawsuit creates a circuit split, likely causing artists to think twice about where to file their copyright infringement suits. At least in the 9th Circuit, there could be a return of the de minimus defense, making it possible for artists to sample fragments of songs while avoiding potential lawsuits.

← Return to Filewrapper

Stay in Touch

Receive the latest news and updates from us and our attorneys.

Sign Up