How Copyright Works: Courts and the Circuit Split Regarding Sampling without a License

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In this video, Berklee Online instructor E. Michael Harrington discusses the music of George Clinton, specifically his song “Get Off Your Ass and Jam.” He argues that if there is a part of a song that sounds as if it was copyrighted from another song, it is not copyright infringement if one cannot recognize the similarities between the two songs. The song has been sampled by artists like Public Enemy, Tone Lōc, A Tribe Called Quest, and Tupac Shakur, but it was most notably sampled by N.W.A. in the song “100 Miles and Runnin’,” which led to a lawsuit. The law then became, as ruled by the Supreme Court, that if an artist wants to sample part of another person’s work, they must obtain a license. In contrast, Madonna sampled a horn hit from Salsoul Orchestra’s song “Love Break,” in her song “Vogue,” without asking permission, and was sued. The court in this case ruled the horn hit was not original, therefore, Madonna’s use of it was justified in the eyes of the law. The fact that certain court circuits have different views regarding the need for a license when sampling is referred to as the “circuit split.” And whether or not you can use a sample without permission depends on what state you record the song in, and how the courts view it there.

About E. Michael Harrington:
Dr. E. Michael Harrington is a professor in music copyright and intellectual property matters. He has lectured at many law schools, organizations, and music conferences throughout North America, including Harvard Law, George Washington University Law, Hollywood Bar Association, Texas Bar, Minnesota Bar, Houston Law Center, Brooklyn Law, BC Law, Loyola Law, NYU, McGill, Eastman, Emory, the Experience Music Project, Future of Music Coalition, Pop Montreal, and others. He has worked as a consultant and expert witness in hundreds of music copyright matters including efforts to return "We Shall Overcome" and "This Land Is Your Land" to the public domain, and has worked with director Steven Spielberg, producer Mark Burnett, the Dixie Chicks, Steve Perry, Busta Rhymes, Samsung, Keith Urban, HBO, T-Pain, T. I., Snoop Dogg, Collin Raye, Tupac Shakur, Lady Gaga, George Clinton, Mariah Carey, and others. He sits on the editorial board of the Journal of Popular Culture, advisory board of the Future of Music Coalition and the Creators Freedom Project, and is a member of Leadership Music. Michael has been interviewed by the New York Times, CNN, Bloomberg Law, Wall Street Journal, Time, Huffington Post, Billboard, USA Today, Rolling Stone, Money Magazine, Investor's Business Daily, People Magazine, Life Magazine, and Washington Post, in addition to BRAVO, PBS, ABC News, NBC's "Today Show," the Biography Channel, NPR, CBC and others. He teaches Music Business Capstone and Music Licensing courses at Berklee Online, and is the course author and instructor for Music Business Law, part of the curriculum for Berklee Online’s Master of Art in Music Business degree.

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