# "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.

Topic: Copyright  |  Author: Lidiia Levitska  |  Source: Intellectual Property Law (outsideipcounsel.com)
Canonical: https://outsideipcounsel.com/blog/bridgeport-music-v-dimension-films-sound-recording-sampling/


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 said the result was dictated by the statute on a "literal reading" approach, and it offered several supporting justifications.

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, though the court took care to add that considerations of judicial economy were "not what drives this opinion." 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 left fair use untouched: because the district judge had found no infringement, he never reached that affirmative defense, so the Sixth Circuit reversed summary judgment for No Limit Films, told the trial judge he was free to consider fair use on remand, and expressly stated that it expressed "no opinion on its applicability to these facts." Only the de minimis defense was eliminated. That opening 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* left fair use open without deciding anything about it, and few sampling defendants have prevailed on the defense since; its reach for transformative sampling is largely untested at the appellate level.
- **What about pre-1972 recordings?** Federal sound-recording copyright reaches only recordings fixed on or after February 15, 1972, so older masters were long governed by state law until the Music Modernization Act of 2018 layered a federal regime over them. "Get Off Your Ass and Jam" (1975) fell on the federal side of that line, but samplers working with genuinely vintage masters still have to ask which body of law governs.

## 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.

## Authorities and sources

- [Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005): Sixth Circuit opinion (PDF)](https://www.opn.ca6.uscourts.gov/opinions.pdf/05a0243a-06.pdf)
- [VMG Salsoul, LLC v. Ciccone, 824 F.3d 871 (9th Cir. 2016): Ninth Circuit opinion (PDF)](https://copyrightalliance.org/wp-content/uploads/2016/09/VMG-Salsoul-v.-Madonna-Louise-Ciccone.pdf)
- [Bridgeport Music, Inc. v. Dimension Films: Wikipedia overview](https://en.wikipedia.org/wiki/Bridgeport_Music,_Inc._v._Dimension_Films)
- [George Washington University Law: Music Copyright Infringement Resource, Bridgeport case entry](https://blogs.law.gwu.edu/mcir/case/bridgeport-music-v-dimension-films-et-al/)
- [17 U.S.C. § 114: scope of exclusive rights in sound recordings (Cornell LII)](https://www.law.cornell.edu/uscode/text/17/114)