In 2018, Kendrick Duckworth, better known by his stage-name Kendrick Lamar, became the first non-classical or jazz musician to win the Pulitzer Prize in Music. Equally as surprising, the album contained a magnitude of digital sampling. As digital sampling has become more prevalent since the 1980’s, courts have differed on how to handle the issue. By 2016, the Sixth and Ninth Circuit Courts of Appeals established a circuit split on the issue, with one holding that unlicensed digital sampling is per se unlawful, and the other holding that a more lenient test is needed. Courts have continued to struggle with digital sampling cases. However, a growing trend of treating digital sampling cases through a de minimis lens and applying the fair use exception may mark a new and promising solution to the longstanding controversy.
This note addresses the complex history and evolution of digital sampling within copyright law. Part I introduces the issue of digital sampling, while Part II dives deeper into the historical and legal background of the practice. Part III identifies and analyzes the decisions from the Sixth and Ninth circuits, which have been the keystone of digital sampling jurisprudence. Part IV analyzes the aftermath of the circuit split, and Part V identifies potential legislative, judicial, and industry solutions to the issue. While much is unclear about digital sampling within the United States legal system, one thing is certain: digital sampling is here to stay.
