Non-Infringing Uses in Digital Sampling: The Role of Fair Use and the de Minimis Threshold in Sample Clearance Reform

In this book excerpt, the authors address the role of two major legal exceptions to copyright protection in the music industry’s practices surrounding digital sampling. Although the United States law on the books requires a balance between the interests of copyright owners and sampling musicians, the business practice has been to mandate licensing in almost every instance. Despite this hurdle to a more balanced approach to sampling, the authors discuss several benefits that might come through doctrinal or statutory reforms, or even through developing best practices for claiming fair use.