"Get a License or Do Not Sample": Bridgeport's Bright Line for Sound Recordings

How the Sixth Circuit's Bridgeport Music v. Dimension Films created a near-absolute rule against unlicensed sampling of sound recordings—and why the Ninth Circuit later refused to follow it.

When the Sixth Circuit decided Bridgeport Music, Inc. v. Dimension Films, No. 02-6521 (6th Cir. June 3, 2005), it produced one of the most quoted—and most criticized—sentences in modern copyright law: “Get a license or do not sample.” The court was confronting a two-second guitar arpeggio lifted from Funkadelic’s 1975 recording “Get Off Your Ass and Jam,” pitch-shifted, looped, and buried in the N.W.A track “100 Miles and Runnin’,” which in turn appeared in the film I Got the Hook Up. The chord was, by any ordinary listener’s measure, trivial. The court held it actionable anyway, announcing a bright-line rule that any unauthorized copying of a fixed sound recording—however small—infringes.

At a glance

Matter: Bridgeport Music, Inc. v. Dimension Films, No. 02-6521
Forum: U.S. Court of Appeals for the Sixth Circuit (on appeal from the Middle District of Tennessee)
Decided: June 3, 2005 (an amended opinion superseding the panel’s 2004 decision)
The recordings: Funkadelic’s “Get Off Your Ass and Jam” (1975), sampled in N.W.A’s “100 Miles and Runnin’” (1990)
The sample: A roughly two-second, three-note guitar chord, lowered in pitch and looped
Holding: Copying any quantity of a copyrighted sound recording (as opposed to the underlying composition) is infringement; the de minimis doctrine does not apply
The rule: “Get a license or do not sample”

Two copyrights, one sound

The analytical move that makes Bridgeport coherent—and controversial—is its insistence on the distinct legal status of the sound recording. American copyright law recognizes two separate works embedded in a single track: the musical composition (the notes and lyrics, here owned in part by Bridgeport) and the sound recording (the particular fixation of performers playing those notes, owned by Westbound Records). The case concerned only the latter. The defendants did not re-record Funkadelic’s part; they digitally copied the master itself.

The court grounded its rule in the text of 17 U.S.C. § 114(b), which defines the exclusive reproduction right in a sound recording as the right to duplicate the recording “in the form of phonorecords … that directly or indirectly recapture the actual sounds fixed in the recording.” The same provision limits the rights of a sound-recording owner against an independent fixation—a sound-alike that imitates the recording without copying it. From this structure the court drew a syllogism: imitation is permitted, but actual duplication of the fixed sounds is not, and Congress drew no line based on how much was taken. “A sound recording owner has the exclusive right to ‘sample’ his own recording,” the court reasoned, so anyone who lifts even a fragment has appropriated something the statute reserves to the owner.

Why the court abandoned de minimis

In ordinary infringement analysis, the de minimis maxim—de minimis non curat lex, the law does not concern itself with trifles—lets defendants escape liability where the copying is so slight that no substantial similarity exists between the works. Bridgeport deliberately removed that escape hatch for sampled recordings. The court offered several justifications, candidly acknowledging that it was making a policy choice as much as parsing a statute.

First, it argued that a physical-taking rule is administrable. Substantial-similarity analysis for sampled recordings would force courts and juries into fact-intensive comparisons of fragments, often after the sampler has manipulated the audio beyond easy recognition. A bright line—did you copy from the master, yes or no?—is cheaper to administer and easier to predict. Second, the court reasoned that sampling is by definition a physical taking rather than an intellectual one: the sampler saves the time and expense of hiring musicians by copying the actual performance, and “even when a small part of a sound recording is sampled, the part taken is something of value.” Third, it noted that the market would adjust; licensing markets for samples already existed, and a clear rule would let them function.

The court was careful to cabin its holding. It expressly confined the rule to sound recordings, leaving composition claims to traditional substantial-similarity analysis. And it stressed that it was not foreclosing a fair use defense—transformative sampling might still be excused under § 107—only the de minimis defense. That caveat has done less work in practice than the headline rule, because fair use for commercial music sampling remains a steep climb.

The circuit split: the Ninth Circuit says no

For more than a decade Bridgeport stood as the dominant authority, and risk-averse labels treated it as a national rule: clear every sample, however fleeting. Then the Ninth Circuit broke ranks in VMG Salsoul, LLC v. Ciccone, 824 F.3d 871 (9th Cir. 2016), the litigation over a 0.23-second horn “hit” from “Ooh I Love It (Love Break)” alleged to have been sampled in Madonna’s “Vogue.” The Ninth Circuit held squarely that the de minimis exception does apply to sound recordings, and that an average listener could not recognize the disputed horn hit in “Vogue” in any event.

The panel’s reasoning was a direct rebuke. It read § 114(b) not as expanding the reproduction right but as a limiting provision clarifying that sound-alikes are non-infringing—language that says nothing about excusing de minimis copying from any general principle. Treating sound recordings more favorably than every other category of copyrighted work, the court observed, would be anomalous: a novelist who copies a sentence may invoke de minimis, but a producer who copies a quarter-second could not. The Ninth Circuit acknowledged the rare gravity of creating a circuit split and did so deliberately, calling Bridgeport’s logic unpersuasive.

The result is a genuine geographic divide. In the Sixth Circuit, the safest assumption remains Bridgeport’s near-absolute rule; in the Ninth—home to much of the recording industry—a sampler may argue that an unrecognizable fragment is non-actionable. Producers and clearance departments now navigate by forum.

Open questions

Will the Supreme Court resolve the split? A clean circuit conflict on a recurring, commercially significant issue is the classic candidate for certiorari, yet the Court has not taken it up, leaving the law forum-dependent.
How far does § 114(b)‘s text really reach? The two courts read the same sentence to opposite effect. Whether “directly or indirectly recapture the actual sounds” creates an exclusive right or merely defines a sound-alike safe harbor remains genuinely contested.
Does fair use fill the gap? Bridgeport preserved fair use but few sampling defendants have prevailed on it; the doctrine’s reach for transformative sampling is largely untested at the appellate level.
What about pre-1972 recordings? Federal sound-recording rights began in 1972, and the Music Modernization Act later layered a federal regime over older recordings—complicating which body of law governs vintage samples like those at issue here.

Implications

Forum dictates risk. A sample that is litigable in Cincinnati may be defensible in Los Angeles; counsel must weigh where suit is likely.
Clearance culture hardened around the bright line. Major labels and film studios still clear even fragmentary samples, treating Bridgeport as the floor regardless of the Ninth Circuit’s split.
Composition and recording must be cleared separately. Sampling implicates two copyrights; a license to one is not a license to the other.
De minimis is not dead—but it is local. Outside the Sixth Circuit, an unrecognizable fragment may defeat liability; inside it, size is irrelevant.
Fair use is the surviving defense, not de minimis. Producers relying on transformation rather than triviality should build a § 107 record from the outset.

Frequently asked questions

What is the difference between sampling a composition and sampling a sound recording? A composition is the underlying music and lyrics; a sound recording is the specific captured performance. Replaying a melody yourself implicates only the composition. Copying the actual master—as in Bridgeport—implicates the sound recording, which the Sixth Circuit treated under its own bright-line rule.

Did Bridgeport really make a two-second sample illegal? For sound recordings in the Sixth Circuit, yes—the court held that the amount taken is irrelevant, so even a brief, manipulated fragment can infringe absent a license or a successful fair use defense.

Is Bridgeport still good law everywhere? No. It remains binding in the Sixth Circuit, but the Ninth Circuit expressly declined to follow it in VMG Salsoul v. Ciccone (2016), holding that the de minimis defense applies to sound recordings and creating an open circuit split.