Music Copyright, Sampling, and Licensing

By Hank FasthoffJuly 4, 2026

Every recorded song involves two separate copyrights. One protects the musical composition, e.g., the notes, melody, harmony, rhythm, and lyrics. Another protects the sound recording, which is the specific recorded performance of that composition. Different people typically own each copyright, and different rules govern how each can be used, licensed, and enforced. Failing to understand the distinction between those two copyright interests is the source of many music copyright disputes, because a license to use the composition doesn't authorize use of the sound recording, and a license to use the sound recording doesn't authorize use of the composition.

Sound Recordings Versus Musical Compositions

A musical composition is a work of authorship consisting of music, including any accompanying words. 17 U.S.C. § 102(a)(2). It's the underlying song as written, independent of any particular performance or recording. Songwriters and music publishers typically own composition copyrights.

A sound recording is a work that results from the fixation of a series of musical, spoken, or other sounds. 17 U.S.C. § 101. It captures a specific performance of a composition. Record labels typically own sound recording copyrights, either through work-for-hire arrangements with recording artists or through other agreements that contain copyright assignment provisions.

When a band writes a song and records it in a studio, two copyrights come into existence simultaneously. If the band members are the songwriters, they own the composition copyright (which is often assigned to a music publisher). If they recorded under a label deal, the label typically owns the sound recording copyright.

Using a recorded song in any context, whether in a film, an advertisement, a podcast, a cover version, or a sample, requires analysis of which rights are implicated and which licenses are needed.

Mechanical Licenses and Section 115

A mechanical license authorizes the reproduction and distribution of a musical composition in a phonorecord, meaning a physical or digital copy such as a CD, vinyl, or digital download. Under 17 U.S.C. § 115, once a musical composition has been distributed to the public in phonorecords with the copyright owner's authorization, anyone may obtain a compulsory mechanical license to make and distribute their own phonorecord of the composition by following statutory procedures and paying the statutory royalty rate.

Section 115's compulsory license is what authorizes the recording of cover songs. A band that wants to record and release its own version of a copyrighted song doesn't need the songwriter's permission, provided the song has been previously released and the band complies with the statutory notice and royalty requirements. The compulsory license doesn't, however, permit the licensee to change the basic melody or fundamental character of the composition. It also reaches only the making and distribution of phonorecords, so it doesn't authorize a music video, a live public performance, or any synchronization of the cover with visual images, each of which requires a separate license.

Congress overhauled the mechanical licensing system through the Music Modernization Act of 2018 (MMA). Title I of the MMA replaced the song-by-song compulsory licensing process for digital uses with a blanket license administered by the Mechanical Licensing Collective (MLC), a nonprofit organization designated by the U.S. Copyright Office. Since January 1, 2021, digital music providers such as Spotify, Apple Music, Amazon Music, and Tidal obtain blanket mechanical licenses through the MLC, which collects and distributes royalties to songwriters and publishers. Song-by-song compulsory licensing under Section 115 remains available for physical formats (CDs, vinyl) but no longer applies to interactive streaming, and for permanent digital downloads it survives only as the individual download license available to record companies under Section 115(b)(3).

Synchronization Licenses

A synchronization license (sync license) authorizes the use of a musical composition in timed relation to visual images, such as in a film, television show, advertisement, video game, or online video. Sync licenses are negotiated directly with the composition's copyright owner (typically the music publisher), because no compulsory license provision covers synchronization rights.

Using a specific recording of a composition in an audiovisual work also requires a master use license from the owner of the sound recording (typically the record label). A sync license covers the composition; a master use license covers the recording. Both are needed when a specific recorded version of a song accompanies visual content.

Performance Rights

Public performance of a musical composition, whether broadcast on radio, streamed through a digital service, played in a retail establishment, or performed live at a concert venue, requires a public performance license. In the United States, performing rights organizations (PROs) administer these licenses on behalf of songwriters and publishers. ASCAP, BMI, SESAC, and GMR are the four major PROs, and each administers a catalog of compositions and issues blanket performance licenses to venues, broadcasters, and digital services.

Sound recordings have a more limited public performance right. Under 17 U.S.C. § 114, the copyright owner of a sound recording has the exclusive right to perform the recording publicly by means of a digital audio transmission. SoundExchange collects and distributes digital performance royalties to sound recording owners and performing artists. Traditional terrestrial radio stations don't pay performance royalties to sound recording owners under current U.S. law, a distinction that has been the subject of ongoing legislative debate.

Sampling and the Two-License Requirement

Sampling is the incorporation of a portion of an existing sound recording into a new recording. Because a sample captures both the recorded performance (the sound recording) and the underlying musical material (the composition), sampling implicates both copyrights. A producer who samples a guitar riff from a classic funk record needs a license from the owner of the sound recording (for the recorded performance) and a license from the owner of the composition (for the underlying musical material).

Without both licenses, the sample is an infringement of both copyrights. In practice, sample clearance involves negotiating with the record label (for the master use license) and the music publisher (for the composition license), often simultaneously. Clearance can be expensive, and copyright owners have no obligation to grant a sample license at any price. Some copyright owners refuse to license samples at all.

Bridgeport Music, Inc. v. Dimension Films

In Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005), the Sixth Circuit created a bright-line rule for sound recording sampling. NWA's song "100 Miles and Runnin'" sampled a two-second guitar chord from George Clinton and Funkadelic's "Get Off Your Ass and Jam," lowered the pitch, and looped the altered sample five times across the track. The district court held that the sample wasn't substantially similar to the original and granted summary judgment for the defendants.

On appeal, the Sixth Circuit reversed. Rather than applying the traditional substantial similarity analysis, the court held that for sound recordings, any unauthorized copying, no matter how small, is infringement. Section 114(b) of the Copyright Act provides that the owner of a sound recording has the exclusive right to duplicate the recording "in the form of phonorecords or copies that directly or indirectly recapture the actual sounds fixed in the recording." The Sixth Circuit read this language to mean that any recapture of actual sounds from a copyrighted recording, even small portions, requires authorization.

Judge Guy's directive was direct. Any recording artist who wants to sample another artist's sound recording must obtain a license, regardless of how short, altered, or unrecognizable the sample may be. The decision eliminated the de minimis defense for sound recording sampling within the Sixth Circuit (which includes Tennessee, the home of Nashville's music industry).

One qualifier belongs with that rule. The court stated that its holding didn't foreclose other defenses, and fair use remains available to a sampling defendant in the Sixth Circuit. What Bridgeport removed was the argument that a sample was too small to matter, not the argument that the use was transformative, noncommercial, or otherwise fair under Section 107. A defendant facing a sampling claim in the Sixth Circuit has lost one defense, not every defense.

VMG Salsoul, LLC v. Ciccone and the Circuit Split

In VMG Salsoul, LLC v. Ciccone, 824 F.3d 871 (9th Cir. 2016), the Ninth Circuit rejected the Bridgeport bright-line rule. VMG Salsoul alleged that Madonna's 1990 hit "Vogue" sampled a single horn hit from the early-1980s recording "Love Break." The district court applied the de minimis defense, held that the sample was too trivial to constitute infringement, and granted summary judgment for Madonna.

On appeal, the Ninth Circuit affirmed, holding that the de minimis defense applies to sound recordings the same way it applies to all other categories of copyrighted works. If the portion copied is so small or trivial that an average audience wouldn't recognize the appropriation, there's no actionable infringement. The court rejected the Sixth Circuit's reading of Section 114(b), agreeing with the leading copyright treatise, Nimmer on Copyright, that the Bridgeport court's statutory analysis rested on a logical fallacy.

A circuit split now exists on the question of whether the de minimis infringement defense applies to sound recordings. In the Sixth Circuit, any unauthorized sampling of a sound recording is infringement per se, regardless of how small or unrecognizable. In the Ninth Circuit, the de minimis defense applies, and a sample that's too small or altered to be recognizable by an average listener isn't actionable. Other circuits haven't yet addressed the question, and the Supreme Court hasn't yet resolved the split.

For recording artists and producers, the practical effect of the split depends on where the infringement claim is filed. A sample that survives the de minimis defense in Los Angeles may constitute infringement in Nashville. Until the Supreme Court resolves the issue, the safest approach is the one the Sixth Circuit prescribed.

Composition Infringement Versus Sound Recording Infringement

Sampling disputes typically involve sound recording infringement (copying the recorded performance), but music copyright infringement can also arise from the composition alone. When two songs share similar melodies, chord progressions, or lyrical phrases, the question is whether the second song copied protectable expression from the first composition, regardless of whether any recorded sounds were sampled.

Composition infringement follows the standard substantial similarity analysis. In the Ninth Circuit, courts apply the extrinsic/intrinsic test. In Skidmore v. Led Zeppelin, 952 F.3d 1051 (9th Cir. 2020) (en banc), the Ninth Circuit affirmed a jury verdict that Led Zeppelin's "Stairway to Heaven" didn't infringe the composition copyright in Spirit's "Taurus," and in doing so clarified that common musical elements such as chromatic scales, arpeggios, and short melodic sequences may be unprotectable building blocks of musical composition rather than protectable expression.

In the Second Circuit, composition infringement was at issue in Structured Asset Sales, LLC v. Sheeran, 120 F.4th 1066 (2d Cir. 2024), where the court affirmed summary judgment for Ed Sheeran in a claim that "Thinking Out Loud" infringed Marvin Gaye's "Let's Get It On." These decisions reflect the difficulty of distinguishing protectable melodic expression from unprotectable musical ideas, a boundary that's particularly hard to draw in genres that share common harmonic and rhythmic conventions.

Practical Considerations

Register compositions and sound recordings separately with the Copyright Office. A composition and its sound recording are different works, and each registration covers only one. Timely registration of both preserves the right to statutory damages and attorney's fees for infringement of each.

Secure sample clearances before release. Obtaining sample clearance after a song has been released, distributed, and promoted is more expensive and legally risky than clearing before release. A copyright owner who discovers an uncleared sample after the song is commercially successful has the strongest position in any negotiation or litigation.

Understand which licenses you need for your intended use. A cover version requires a mechanical license (composition only). A sample requires both a master use license (sound recording) and a composition license. A sync placement requires a sync license (composition) and a master use license (sound recording). A public performance requires a performance license (composition) and, for digital transmissions, a digital performance license (sound recording). Each use implicates a different combination of rights, and each requires a different license from a different rights holder.

Sampling clearance is cheaper than litigation, and litigation in this area produces verdicts and settlements that dwarf the cost of a license. An uncleared sample is a liability that can surface at any time, and the longer a song containing an uncleared sample remains in commercial distribution, the larger the potential damages become.