Sampling and Music Copyright Protection

By Kim Hyun-sook, Director of the Digital Intellectual Property Research Institute

In today’s music industry, sampling has become an essential tool for expanding the boundaries of creation. Using familiar sounds, melodies, and rhythms to create a sense of intimacy while providing novelty is highly attractive to creators. With advancing digital technology, methods for utilizing existing music in new ways have also evolved. However, as these techniques involve using parts of existing works, conflicts with copyright laws are inevitable. This article will examine various techniques for using existing musical elements in new songs, focusing on the definition and examples of sampling, and explore the balance between sampling and copyright protection.

1. K-Pop and Sampling

K-pop, fueled by global popularity, is increasingly integrating various musical techniques to build a more unique style. Creators are reinterpreting elements of existing music in different ways, expanding the genre scope of K-pop and highlighting its originality. For example, BLACKPINK’s “Shutdown” combines the intense classical melody of Paganini’s “La Campanella” with a hip-hop rhythm, while BLACKPINK member Rosé’s “APT” introduces new emotions into existing music, making waves worldwide. These techniques fuse K-pop with various genres such as classical, jazz, and hip-hop, providing fans with fresh musical experiences. However, as these techniques require permission from copyright holders, efforts to balance creation and copyright protection are necessary.

2. Various Techniques for Using Existing Songs

The most representative techniques for using elements of existing music in new songs are sampling and interpolation.

(1) Sampling

Sampling refers to the technique of taking sounds from a pre-recorded track, converting them into digital form, and using digital processing tools such as computers and synthesizers to create new material for recording. In other words, it involves cutting and either directly or modifiedly using melodies, rhythm patterns, sound effects, and other elements created by other artists. As digital technology has advanced, various methods like phrase sampling, pitch shift, and cut and paste have emerged. Phrase sampling involves extracting a specific melody or phrase to use as a key element of a song, while pitch shift changes the pitch of a sound to create a different atmosphere. Since sampling uses portions of recorded works, permission is needed not only from the composer and other rights holders but also from the recording producer who owns the recording.

(2) Interpolation

In contrast to sampling, interpolation involves reinterpreting and performing elements of existing music, such as melodies and rhythms, in a new way. Since no recording is used, it is possible to use these elements without the producer’s permission, but the consent of the composer and other copyright holders is still required. Rosé’s “APT” is an example of interpolation, where a popular melody is re-performed and incorporated.

(3) Remix, Cover, and Plagiarism

A remix involves transforming an original song by adding new interpretations, often altering its structure or genre. While remixing can be considered a form of sampling, it focuses more on reshaping the overall composition and genre of the original track rather than using specific melodies or beats.

A cover involves reinterpreting and singing another artist’s song in one's own style, using the original melody and lyrics but altering the arrangement to convey a new feeling.

Plagiarism, however, refers to using another artist’s musical elements without permission and presenting them as one’s own work. While copyright infringement is a legal issue, plagiarism is an ethical issue. It is important to note that not all cases of plagiarism involve copyright infringement, as works with expired or no copyright may be used, but it remains problematic as it misleads the public into thinking that the work was originally created by the plagiarist.

3. Copyright Protection and Sampling

Sampling and interpolation, by utilizing parts of existing songs, can infringe on the rights of the original works protected by copyright law. Unauthorized sampling can lead to copyright infringement and potential legal disputes. As sampling has become widespread in contemporary popular music, copyright issues have become even more significant.

(1) Domestic and International Sampling Dispute Cases

Through legal precedents related to sampling, we can establish the legal standards for sampling. The Korean Supreme Court ruled that in order to recognize a digital sample-based album as a derivative work, there must be original elements added. Specifically, it is not enough to simply remove noise or make minor adjustments; new content must be added to create independent expression.

In the U.S., a notable case involved rapper Biz Markie, who was sued for unauthorized sampling of Gilbert O'Sullivan's "Alone Again (Naturally)." The court found that the sampling of the melody was a clear violation of copyright, as the sampled portion was a significant and recognizable part of the original song. Additionally, in a case involving N.W.A. and a 2-second guitar riff from "Get Off Your Ass and Jam," the court ruled that sampling without a license was prohibited, regardless of the length of the sample.

In Germany, a long legal dispute ensued over the unauthorized use of a 2-second drum beat from Kraftwerk’s “Metall auf Metall” by Moses Pelham. The case ultimately concluded that sampling an identifiable part of an original work without permission is a copyright infringement.

(2) Fair Use and the De Minimis Rule

Sampling may avoid copyright infringement if used as part of artistic expression. For example, the U.S. Supreme Court recognized 2 Live Crew’s parody of Roy Orbison’s “Oh, Pretty Woman” as fair use. This ruling emphasized that copyright could be limited for artistic expressions such as parody, protecting creative freedom.

The De Minimis Rule, which applies to minimal use of copyrighted material, also serves as an important legal standard. In a case where only 6 seconds of a song were used, the court found that such a minor portion did not constitute copyright infringement because it was so small and insignificant that it could not be recognized by the general public.

4. Conclusion

Sampling has become a crucial technique in music creation, offering new sounds and personality to the industry. However, because it involves using existing works, it is essential to establish legal and ethical frameworks that protect copyright holders while respecting creative freedom. The ongoing copyright debates around sampling highlight the need for solutions that allow creators and copyright holders to coexist. International legal precedents make it clear that permission from copyright holders is essential, while exceptions like fair use and the De Minimis rule recognize the importance of artistic freedom. A flexible, cooperative approach between creators and rights holders may offer the most practical and effective solution, ensuring that sampling continues to play a key role in fostering a rich and diverse music culture.