Music Copyright, Sampling, and Licensing

By Hank FasthoffJuly 4, 2026

Recorded music commonly involves two distinct works. The musical composition consists of the music and any accompanying lyrics. The sound recording consists of the particular recorded performance and production.

A license covering one doesn't authorize use of the other. A composition may be in the public domain while a recent recording of it remains protected. A person may own a composition without owning any recording of it, and a record label may own a recording without owning the underlying song.

Musical Compositions and Sound Recordings

Section 102 identifies musical works, including accompanying words, as copyrightable works of authorship. Composers and lyricists contribute authorship to the composition. Copyright protection begins when the composition is fixed in notation, a recording, or another sufficiently permanent form.

A sound recording results from the fixation of musical, spoken, or other sounds. The Copyright Office explains that performers and record producers may contribute sound recording authorship. A producer's copyrightable contribution may include capturing, manipulating, editing, and arranging the sounds in the final recording.

The composition and sound recording don't necessarily arise at the same time. A songwriter may write and record a composition months before another artist records it. When musicians improvise a new composition during a recording session, fixation of the composition and recording may occur together.

Ownership of a commercial master depends on authorship, employment relationships, work made for hire requirements, assignments, and recording agreements. Record contracts commonly state that the master is a work made for hire and include an assignment if that designation fails. Contract language alone can't transform an ineligible commissioned work into a work made for hire.

Mechanical Licenses Under Section 115

A mechanical license authorizes specified reproduction and distribution of a nondramatic musical work in phonorecords. A phonorecord may be a physical or digital embodiment of recorded sounds.

Under 17 U.S.C. § 115, a person may obtain a compulsory license if the statutory eligibility, notice, accounting, and royalty requirements are satisfied. The principal eligibility rule applies after phonorecords of the composition have been distributed to the United States public with the copyright owner's authority. Section 115 also contains a separate eligibility provision for certain digital music providers using authorized sound recordings.

The compulsory license permits a new recording and distribution of the composition. It doesn't authorize duplication of someone else's sound recording without the recording owner's permission. An artist recording a cover therefore makes a new master rather than copying the existing master.

A compulsory license permits an arrangement needed to conform the composition to the performer's style or interpretation. The arrangement may not change the composition's basic melody or fundamental character without the owner's consent. Section 115 doesn't authorize synchronization with visual images, public performance, or uses outside its reproduction and distribution provisions.

The Mechanical Licensing Collective

The Music Modernization Act changed mechanical licensing for covered digital uses. Since January 1, 2021, qualifying digital music providers may obtain a blanket license administered by the Mechanical Licensing Collective.

The blanket license covers permanent downloads, limited downloads, and interactive streams of musical works available for compulsory licensing. It also covers certain server, archival, intermediate, and incidental reproductions needed for those activities. It doesn't cover rights or uses outside the statutory definition.

The prior notice system remains available for physical phonorecords such as CDs, vinyl records, and tapes. The Copyright Office no longer accepts notices of intention for digital phonorecord deliveries, although Section 115 preserves other licensing methods, including voluntary licenses and certain individual download licenses.

Synchronization and Master Use Licenses

A synchronization license authorizes use of a composition in timed relation to visual images. Films, television programs, advertisements, video games, and online videos ordinarily require direct negotiation with the composition owner because Section 115 supplies no compulsory synchronization license.

Using an existing recording with those images also requires permission from the sound recording owner. The synchronization license covers the composition, while the master use license covers the recording.

A producer who records a new performance doesn't need a master use license for someone else's recording because no existing master is being used. The producer nonetheless needs the required composition rights. The separate article on synchronization licensing addresses those permissions in detail.

Public Performance Rights

The copyright owner of a musical composition has a public performance right under Section 106. Unless an exemption or statutory provision applies, broadcasters, streaming services, venues, and businesses need permission for public performances of protected compositions.

Performing rights organizations administer many of those permissions for songwriters and publishers. ASCAP, BMI, SESAC, and GMR each license compositions within their respective catalogs. A blanket license from one organization doesn't cover works represented only by another.

Sound recordings have a narrower federal performance right. Section 106(6) covers public performance of a sound recording by digital audio transmission. It doesn't establish a general performance right for every use of recorded music.

Eligible noninteractive digital services may operate under the Section 114 statutory license administered by SoundExchange. Interactive and on demand services don't qualify for that statutory license and must obtain sound recording rights directly.

Nonsubscription terrestrial broadcasts remain exempt from the federal sound recording performance right. Terrestrial stations continue to license the public performance of the underlying compositions.

Sampling and Separate Copyrights

Sampling copies actual sounds from an existing recording and incorporates them into a new recording. That act concerns the sound recording copyright because the producer takes sounds fixed in the existing master.

A sample may also concern the composition copyright when it reproduces protected melody, lyrics, harmony, rhythm, or another protected combination of musical expression. A sample containing only unprotected material or a legally insignificant portion of the composition doesn't automatically establish composition infringement.

Because a sample copies recorded sounds containing an underlying composition, producers ordinarily obtain two permissions before release. The sound recording owner controls use of the master, and the composition owner controls use of protected expression from the song. If the sample uses protected material from either work without permission, statutory authorization, or an applicable defense, it infringes that copyright.

Neither owner has a general obligation to license a sample. The parties may negotiate a fee, royalty, ownership share, credit, approval right, or a combination of those terms.

The Sixth Circuit's Sampling Rule

In Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005), the defendants used a sample from Funkadelic's "Get Off Your Ass and Jam" in N.W.A.'s "100 Miles and Runnin'." The sample contained a guitar chord lasting about two seconds. The pitch was lowered, and the altered segment was looped five times.

The district court treated the copying as legally insignificant and entered summary judgment on the sound recording claim. On appeal, the Sixth Circuit reversed and held that the ordinary de minimis copying defense doesn't apply when a defendant digitally samples actual sounds from a protected recording.

The holding doesn't relieve a plaintiff of establishing ownership and actual copying. It addresses whether established digital sampling of a sound recording may escape liability solely because the portion taken was small.

The Sixth Circuit didn't decide fair use. Its opinion stated that other defenses remained available and expressed no conclusion about whether the use qualified as fair under Section 107.

The Ninth Circuit's Different Rule

In VMG Salsoul, LLC v. Ciccone, 824 F.3d 871 (9th Cir. 2016), the plaintiff alleged that the producers of Madonna's "Vogue" copied a horn segment lasting 0.23 seconds from "Love Break" and used a modified version in the new recording.

For purposes of summary judgment, the Ninth Circuit assumed that actual sampling occurred. It concluded that a general audience wouldn't recognize the brief segment in "Vogue" as originating in "Love Break."

The court held that the de minimis doctrine applies to sound recordings just as it applies to other copyrighted works. It rejected the Sixth Circuit's interpretation of Section 114(b) and affirmed summary judgment on the composition and sound recording claims.

The Sixth and Ninth Circuits therefore apply different rules after actual digital sampling has been established. The Sixth Circuit doesn't permit a de minimis defense to the sound recording claim, while the Ninth Circuit requires copying significant enough for a general audience to recognize the appropriation.

The Supreme Court hasn't resolved that split. In Richardson v. Kharbouch, Nos. 24-1119 and 24-2378 (7th Cir. Oct. 16, 2025), the Seventh Circuit found insufficient evidence that the defendant had digitally copied the plaintiff's recording rather than imitated it. The court therefore declined to decide whether sampling of any amount would establish infringement.

Sampling and Interpolation Differ

An interpolation recreates musical material from an earlier composition without copying the actual sounds from the original recording. The new performer records the melody, lyrics, rhythm, or other musical material again.

Because no sounds are taken from the existing master, an interpolation doesn't require a master use license for that recording. It may require permission from the composition owner if it reproduces protected expression and falls outside any available statutory license or limitation.

The distinction depends on what the producer used. Copying audio from the original master is sampling. Recording a new performance of material from the composition is interpolation.

Composition Infringement

Composition infringement doesn't depend on copying a sound recording. A claim may arise when one composition copies protected expression from another, even if every sound in the later recording was newly performed.

Courts separate protected expression from common musical material. Scales, common chord progressions, commonplace rhythms, arpeggios, and short musical phrases may be unprotected individually. An original selection or arrangement of unprotected elements may receive protection when the combination contains sufficient authorship.

In Skidmore v. Led Zeppelin, 952 F.3d 1051 (9th Cir. 2020) (en banc), the Ninth Circuit affirmed a judgment for Led Zeppelin on the claim that "Stairway to Heaven" infringed "Taurus." Because the composition was registered under the 1909 Act, the deposited sheet music defined the protected work. The court also rejected the inverse ratio rule and affirmed the jury's finding that the compositions weren't substantially similar.

In Structured Asset Sales, LLC v. Sheeran, 120 F.4th 1066 (2d Cir. 2024), the Second Circuit affirmed summary judgment on a claim involving "Thinking Out Loud" and "Let's Get It On." The combination of a progression containing four chords and a commonplace syncopated harmonic rhythm lacked sufficient originality, and the songs weren't substantially similar when considered as a whole.

Registering Both Works

The composition and sound recording are separate works even when they appear in the same release. A registration covering only the composition doesn't cover the recorded performance, and a registration covering only the sound recording doesn't cover the underlying music or lyrics.

They don't always require two applications. Copyright Office Circular 56A permits one Standard Application when the composition and sound recording are embodied in the same phonorecord and the copyright claimant is the same for both.

Different authorship doesn't necessarily prevent a combined application if one claimant owns all rights in both works through written transfers. Separate applications are required when different claimants own the composition and sound recording.

Timely registration affects enforcement. Under 17 U.S.C. § 412, the timing of registration determines eligibility for statutory damages and attorney's fees for certain infringements.

Identifying the Required Permissions

The intended use determines which permissions apply.

• An audio only cover release ordinarily requires composition rights under Section 115 or a voluntary license. It doesn't use the master from an earlier recording.
• Placement of an existing recording in visual content ordinarily requires a synchronization license for the composition and a master use license for the recording.
• Sampling protected material ordinarily requires permission from both the master owner and the composition owner. Statutory authorization or an applicable defense may change that result.
• An interpolation doesn't use the earlier master. It may require permission for protected expression taken from the composition.
• A public performance ordinarily requires composition rights. A digital audio performance of a sound recording may also require a direct or statutory sound recording license, depending on the service.

Before release, the producer should identify every composition and recording being used, the owner of each relevant right, the intended media and territory, the duration of the use, and any statutory license or defense under consideration. Written licenses should identify the authorized material, compensation, credits, approvals, accounting obligations, and rights retained by each owner.