How Long Can a Sample Be Before You Need Copyright Permission?

By Laura Payet

How Long Can a Sample Be Before You Need Copyright Permission?

By Laura Payet

Copyright protects the creators of artistic works from having their creations copied or stolen by others. If you plan to sample someone else's work in your own, there is no magic sample length that protects you from a lawsuit. Even a few seconds of a song can constitute illegal infringement, subjecting you to liability for damages. Your use of copyrighted material, however limited, violates the law unless it falls under the fair use exception or you obtain permission from the copyright holder.

Man wearing headphones using soundboard

The Fair Use Doctrine

Using someone else's copyrighted work without permission is allowed only if that use falls within the fair use doctrine of copyright law. This legal principle derives from the idea that the public should be able to reproduce portions of copyrighted work for purposes of commentary and criticism. For example, when a literary critic quotes portions of a novel in reviewing the book or a music critic plays a segment of a song for purposes of discussing it, that would be fair use. A song parody that relies on putting unique words to a familiar melody might also count as fair use. Sampling a snippet of someone else's song in your own work, however, would probably not be considered commentary, criticism, or parody.

Unfortunately, there are no specific rules about what constitutes fair use. And because the doctrine provides a defense to a claim of copyright infringement, you would bear the burden in a lawsuit to prove that your use was fair. Courts decide fair use cases on a case by case basis, after considering four factors:

  1. The purpose and character of the use. What use are you making of the copyrighted work? Nonprofit, noncommercial use is more likely to be considered fair than if you are looking to profit.
  2. The nature of the copyrighted work. Is the work used more creative and thus more closely related to copyright law's purpose of protecting creative expression? Or is it more factual and technical and thereby less susceptible to a variety of forms of expression?
  3. The amount of the original work that was used. Was only a small portion of the copyrighted work used? Note that this is only one factor considered, and there is no specific rule about how much use is fair use.
  4. The effect of the use on the original work's value or market. Is your use likely to harm or undercut the market for the copyright holder's work?

Also, keep in mind that you can only invoke the fair use defense if you obtained the copyrighted work legally. If you illegally downloaded a song, that by itself is infringement even before you sample it. And even if you establish fair use and the court rules in your favor, lawsuits are expensive. Worse, if you lose, the damages are potentially substantial, especially if the copyright is registered.

Obtaining Permission

If you want to sample an existing work, you need to obtain permission from the copyright holder. If you plan to use a particular recording of a song, you are probably dealing with two separate copyright holders: the label that recorded and released the song and the publisher or songwriter who wrote it. You can search the Copyright Public Records Catalog from 1978 onwards online to find out whom to contact.

The copyright holders may choose to give you a license to use their work but they are not obligated to. If they do so, they will likely charge you a fee. It may be a flat fee for a one-time, limited use or it may be an amount based on the number of copies of your work that you plan to produce and sell.

Your own creative work is entitled to protection. Preserve your rights by registering your copyright with the U.S. Copyright Office. Consult an online service provider to get started today.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.

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