Developments in entertainment technology and the increase in immediate, on-demand content for consumers have driven the expansion of today’s media landscape. With a rapidly growing number of physical and virtual platforms with which to enjoy music the control of copyright in such various uses has many legal implications. Foremost, new uses of content create a need for greater awareness and regulation of copyright infringement.

To understand copyright infringement, copyright must be defined. With respect to musical compositions and/or recordings, it is essentially the right to (1) reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership; (4) to perform the copyrighted work publicly by means of a digital audio transmission. An infringement is any violation of these exclusive rights of the copyright owner.

One of the most common forms of copyright infringement in popular music is unlicensed sampling. Sampling occurs when a segment of an earlier recording is incorporated into a new recording, and is often repeated (“looped”) throughout an entirely new song. Licensing, as previously discussed, is a permission to use another’s work. Without a license, sampling becomes copyright infringement. In many cases, it can be a double infringement, for the unlicensed use of a sound recording and the unlicensed use of the song.

Instead of the actual profits from the use of an unlicensed sample, owners of copyrighted material will often sue an infringer for statutory damages. If the infringer is found to have willfully used the copyrighted material, they may be liable for statutory damages of up to $100,000. If it can be proven that the use was innocent and unwillful, the damages can be substantially less, as low as $200. Furthermore, if it is found that a defendant continued to infringe upon the rights of the copyright owner, even after a written notice of infringement had been received, the statutory damages may even exceed $100,000.

In popular music, and especially with recognizable samples, it is often difficult to assert that a sample was used unwillingly. A common defense against an infringement claim is that the use was not “substantial” and is unrecognizable to the ordinary public. When determining the level guilt of an alleged infringer and the damages to be awarded, courts have tended to consider (a) blameworthiness of the infringer; (b) the reckless disregard of the infringer; (c) the restitution of wrongfully acquired gains to prevent the unjust enrichment of the infringer; (d) reparation for injury done to the copyright owner; and (e) deterrence of further wrongful conduct by the infringer.