McKenzie Alders, JLST Staffer
Ever wondered how your favorite DJs can legally incorporate those familiar beats and 2010 tunes into their own, new mashups? Apparently, the answer is not actually all that clear.
Copyright protection under federal law automatically applies to creative work once the work is fixed to something tangible.[1] Copyright law provides two protections for music: musical compositions and the recordings of those compositions.[2] Generally, this copyright grants the creator of the work an exclusive right to sell, make copies, and publicly perform the work for the life of the creator plus an additional 70 years.[3] Perhaps the best route for those who wish to use snippets of others’ works to create something uniquely their own is to obtain a license from each artist whose work they plan to use.[4] However, the licensing process is time-consuming, and, particularly for artists who will be using many short snippets of songs, this would be extremely expensive.[5] While this expense might be bearable by those who are at the top of the industry, it could have the effect of pricing out those hobby DJs or new talent looking to make their own name in the profession.
Thus, the question is raised: in lieu of obtaining a license, what options exist for those who wish to mash up the music of others? Historically, there have been two defenses available to those who would use small samples of another’s copyrighted material: de minimis and Fair Use.
Circuit Split Over the Use of the De Minimis Use Defense
In Bridgeport Music, Inc. v. Dimension Films, the Sixth Circuit held that, “A sound recording owner has the exclusive right to ‘sample’ [their] own recording . . . . Get a license or do not sample. We do not see this as stifling creativity in any significant way.”[6] In Bridgeport, various record companies brought copyright infringement claims against No Limit Films for their use of a sample from a composition and sound recording in a rap song, which was included in one of their movies.[7] The district court held that the infringement claim was de minimis and not actionable.[8] In reversing the district court’s holding in this case, the Sixth Circuit not only held that sampling was per se not permitted, but they made this holding extremely broad by doing so in a case where it had initially been held that the infringement claim was de minimis. Hence, at least in the Sixth Circuit, there is no defense to copyright infringement that the size of the sample was de minimis, and as such, a license is required to create a mashup.
In contrast, in Newton v. Diamond, the Ninth Circuit held that, after considering the facts and circumstances, the sampled portion of the composition was not a “quantitatively or qualitatively significant portion of the composition as a whole.”[9] Here, the copyright infringement claim arose out of the use of the recording of a live performance of a flutist that was then used in the Beastie Boys song “Pass the Mic.”[10] The Beastie Boys obtained a license to use the sound recording that was sampled, but not the underlying composition.[11] Thus, a claim for copyright infringement was brought due to the use of the underlying composition.[12] Quantitatively, the allegedly infringed upon sample represented six seconds or two percent of a four and a half minute recording, and the Ninth Circuit found that qualitatively the section of the work was no more significant than any other section.[13]
Since Newton, the Ninth Circuit has only made clearer its opposition to the holding in Bridgeport. In VMG Salsoul v. Ciccone, the Ninth Circuit explicitly disagreed with the Sixth Circuit by stating, “Congress did not eliminate the de minimis exception to claims alleging infringement of a sound recording.”[14] In VMG Salsoul, a claim of copyright infringement was brought against Madonna for the use of a portion of the song, Love Break, in her song Vogue.[15] The Ninth Circuit court held that, as a matter of law, “a general audience would not recognize the brief snippet in Vogue as originating from Love Break” and so any copying that was de minimis and did not amount to copyright infringement.[16] Therefore, the Ninth Circuit chose to preserve the de minimis defense that the Sixth Circuit had dismissed.
As a consequence of this circuit split, it is very hard to predict how a court will actually apply copyright law and the de minimis use defense to those who would create mashups without a use license for each of the songs that they choose to sample. Practically, in Sixth Circuit jurisdictional areas, sampling without a license should not be done at all. While the Ninth Circuit previously permitted sampling without a license under de minimis use, without a categorical rule, the application to the facts of any specific case makes it difficult to predict what the courts would rule.
Fair Use Defense
The fair use protections found in U.S.C. § 107 provide another avenue for artists looking to utilize another’s work. If a sample is deemed to be a fair use of another’s work, it is not considered copyright infringement.[17] Courts consider application of the U.S. Code Fair Use protection on a case by case basis, and the analysis utilizes four statutory factors: (1) the purpose and character of the of the use, focusing on “to what extent the new work is transformative” because it gives the original work something new; (2) “the nature of the copyrighted work”; (3) “whether ‘the amount and substantiality of the portion used in relation to the copyrights work as a whole’ are reasonable in relation to the copyright’s purpose”; (4) “the effect of the use upon the potential market for or value of the copyrighted work.”[18] In Campbell v. Acuff-Rose Music, Inc., the Supreme Court held that a commercial parody, essentially transforming another person’s work but maintaining the underpinnings of it so the original work remains recognizable for comedic purposes, can be considered Fair Use under the meaning of Section 107.[19]
In Campbell, the Court found that parodies utilize the underlying work to transform it into a meaningful comment about that work, creating an entirely new work in the process.[20] Addressing the second factor, the Court found that parodies almost always use publicly known works that are copyrighted.[21] The third factor was resolved in favor of Fair Use, because in this instance, the final product was distinctive and its lyrics had greatly departed from the original work.[22] Finally, the fourth factor was also resolved in favor of the parody creators, with the Court finding that there would likely be no significant market harm from the creation of this particular parody for the underlying copyrighted work.[23]
Theoretically, under the Campbell decision Fair Use doctrine could apply to protect those that mash up other artists’ work because—like a parody, their use of the copyrighted musical samples transforms them into something new and creative—is insubstantial in relation to the work as a whole and is unlikely to affect the market for the copyrighted work. It appears that, at least at the circuit court level, this defense has not been the basis for any decision. In district court, however, Campbell’s four-factor test was applied in Estate of James Oscar Smith v. Cash Money Records, Inc., et al., and the court held that rearranging and altering the message of the underlying copyrighted work was transformative because the purpose of creating the new song was markedly different from the purpose of creating the underlying work.[24]
This would seem to suggest that Fair Use can be a defense for mashup artists so long as the purpose in creating the DJ mashup was markedly different than that of the underlying song. However, given the fact that mashups generally directly take a clip from the underlying work rather than re-arranging the work to truly transform it, it seems like a Court would have to expand the breadth of the current law to find that such sampling qualifies as Fair Use under Campbell. As such, the actual outcome of such an argument is difficult to predict.
Conclusion
The state of copyright law as it relates to the sampling of short clips of copyrighted music in DJ booth mashups is anything but clear. Given the circuit split that exists on the availability of the De Minimis Use defense and the difficulty and unpredictability of the Fair Use defense, it seems that the best route of action for artists who seek to use copyrighted material is to obtain a license for both the composition and the right to the recording. Despite the need for licensing being costly and time-consuming, this route is likely cheaper than the alternative: battling it out with record companies and other owners of the originally copyrighted work in court.
Notes
[1] What Musicians Should Know About Copyright, U.S. Copyright Off. (last visited Nov. 9, 2025), https://www.copyright.gov/engage/musicians/.
[2] Id.
[3] How Long Does Copyright Protection Last?, U.S. Copyright Off. (last visited Nov. 9, 2025), https://www.copyright.gov/help/faq/faq-duration.html.
[4] See The Legal States of Mashup Music, OG+S (June 18, 2019), https://ogs.law/copyright/mashup-is-it-legal/ (discussing how mashup artists could obtain a license for each source of copyrighted material that they clip).
[5] Id.
[6] Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 801 (6th Cir. 2005).
[7] Id. at 795–96.
[8] Id. at 797.
[9] Newton v. Diamond, 388 F.3d 1189, 1195 (9th Cir. 2004).
[10] Id. at 1192.
[11] Id. at 1193.
[12] Id.
[13] Id. at 1196.
[14] VMG Salsoul, LLC v. Ciccone, 824 F.3d 871 (9th Cir. 2016).
[15] Id. at 875.
[16] Id. at 874.
[17] Can I Use Someone Else’s Work? Can Someone Else Use Mine?, U.S. Copyright Off. (last visited Nov. 11, 2025), https://www.copyright.gov/help/faq/faq-fairuse.html.
[18] Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579, 585, 586, 590 (1994) (finding that a parody could qualify for the Fair Use defense and remanding for further consideration to the lower court).
[19] Id. at 594.
[20] Id. at 579.
[21] Id. at 586.
[22] Id. at 588–59.
[23] Id. at 591.
[24] Case Summary Estate of James Oscar Smith v. Cash Money Records, Inc., et al., U.S. Copyright Off. Fair Use Index, https://www.copyright.gov/fair-use/summaries/estate-of-james-oscar-smith-cash-money-records-no.1-14-cv-02703-2017.pdf (last visited Nov. 9, 2025).