Music Sampling and Copyright Laws – What musicians need to know!

In today’s era of technological advancement in the field of production, sampling has become a cornerstone of creativity. From hip-hop to EDM to cinematic scores, artists routinely incorporate snippets of pre-existing recordings into new compositions. While sampling can push artistic boundaries, it also raises complex legal questions. The recent judgment in Ustad Faiyaz Wasifuddin Dagar v. A.R. Rahman & Ors., CS (COMM) 773/2023 brings these issues to the forefront of Indian copyright jurisprudence. Music sampling refers to “the process of taking a small portion of a sound recording and digitally manipulating it as part of a new recording” and has become a common creative technique in modern music production. The jurisprudence around deriving “inspiration” for musical compositions from existing, copyrighted works is ever evolving, as different jurisdictions grapple with the question of balancing an artist’s rights without stifling the general progress and creative processes of the billion-dollar music industry.

Ustad Faiyaz Wasifuddin Dagar v. A.R. Rahman – Drawing a line between music sampling and copyright infringement

Recently, classical vocalist Ustad Faiyaz Dagar (“Plaintiff”) sued composer A.R. Rahman, producers and other people involved in making of the song Veera Raja Veera from Ponniyin Selvan II (collectively “Defendants”). It was alleged that the song Veera Raja Veera copied Shiva Stuti, a dhrupad composition by the Junior Dagar Brothers (the plaintiff’s father and uncle). The core issue was whether Defendants’ work was based on a public domain melody or infringed the Dagar brothers’ original music composition.

The Plaintiff claimed Defendants’ composition was virtually identical in style, structure, and emotion to Shiva Stuti, and had been used without credit. The Defendants argued that the work was based on a 13th-century hymn by Narayana Panditacharya, which was a part of the public domain, dhrupad tradition, and not a proprietary piece of composition.

Justice Pratibha M. Singh, in an interim order, found a strong prima facie case of copying, holding that Veera Raja Veera was “identical” in musical essence to Shiva Stuti and likely infringed the Dagar brothers’ rights. However, in May 2025, the Division Bench of the Delhi High Court stayed the order and the matter is now pending before Hon’ble division bench.

Analysing the law in India – What led to the Court’s interim order in Dagar v Rahman?

While the Indian Copyright Act does not specifically refer to “sampling,” the principles of infringement applies in cases where sampling is alleged. Under the Copyright Act, 1957 the composer of a musical work and the producer of a sound recording hold exclusive rights to reproduce and communicate their creations. For infringement to be established, the alleged copying must not be independently created and must involve a substantial portion of the original. Indian courts often apply the “lay observer” test which checks whether an average listener would perceive the new work as sounding the same as the original. Even the smallest music segment can be protected if it captures the essence of the original piece. Accordingly, in Dagar v. Rahman (supra), the Court applied the “substantial similarity” or de minimis test and concluded that Rahman’s song had appropriated the “core” of an earlier composition. From the perspective of a listener, the new work was found to be not merely inspired but virtually identical in notes, emotion and aural impact to the original. Consequently, the court held that the new composition constituted an infringing reproduction of the original.

Fair Use as Defence by a Composer ?

While several jurisdictions around the world recognise the defense of fair use however, Indian copyright law does not have an open-ended fair use provision. The Copyright Act, 1957 enlists a specific list of fair dealing exceptions which allow the use of copyrighted material for limited purposes, such as private use, criticism or review, reporting of current events, educational purposes etc. Pertinently, creating a new commercial song or film soundtrack is not among the enumerated fair dealing purposes. Indian copyright law only provides a safe harbour to use of a song for the purpose of, say, review, or to teach. Thus, a composer cannot invoke “fair dealing” to justify sampling another artist’s music in one of his film songs, since his use is a commercial entertainment use (not criticism, research, etc.). Copyright Act, 1957 does not explicitly mention the “de minimis principle” (implied by the requirement of a substantial part being copied), but once a use is found substantial and outside the listed exceptions, there is no general transformative-use defence available.

Law in the USA with respect to music sampling

The U.S. Copyright Act grants authors the exclusive right to reproduce any portions of their works. Courts in the U.S. have grappled with music sampling early on, with the Sixth’s Circuit’s noted decision in Bridgeport Music v. Dimension Film, 410 F.3d 792 (6th Cir. 2005) wherein it was simply stated, “get a license, or do not sample”, to the Ninth Circuit’s decision in VMG Salsoul v. Ciccone (824 F.d 871 (9th Cir. 2016))in which the Court reinstated the de minimis defence, and held that use of a tiny, indistinct snippet was unsubstantial, as an average audience could not recognize it, thereby it did not amount to music sampling. This created a circuit split. Summarily, in the U.S. a very short or barely perceptible sample may be excused as de minimis in some courts, but in other courts any recognizable sample may be found infringing.

Crucially, the U.S. courts focus on whether the use is “transformative”, i.e. adding new expression or meaning, rather than just repackaging the original. The U.S. Supreme Court in Campbell v. Acuff-Rose (510 U.S. 569 (1994)) established that even a commercial use can be fair if it is sufficiently transformative. Most sampling in popular music is done for its aesthetic or aural qualities rather than to comment on the sampled work, which often weighs against fair use. It has been observed that for the USA music industry, the safer course has been to clear samples via licensing instead of banking on fair use.

The way forward

The important questions remain is that up to what extent sampling is allowed in India or not? As seen above, there is no straitjacket formula answer to this. In most jurisdictions, the safest assumption, currently, is that, sampling another artists’ tunes without permission is copyright infringement, because it is likely that the offspring of the sampled tune will bear a deep resemblance to the parent song, and amount to copyright infringement. The only legally permissible loophole around this is, that musicians and practitioners should clearly identify whether a given sample is a protected expression or a publici juris property, a part of the world’s creative commons. Utilizing common or traditional musical elements such as a centuries old hymn or a generic drum pattern may not infringe only if those elements are in the public domain or are fundamental tools of building a song, which have been used by other musicians as well, and thus cannot be owned. Giving credit to the original artist may be considered by courts as an equitable remedy (as seen in the Dagar case above) but is definitely not a sound legal defence.

The current copyright law principles in India may squarely cover music sampling by humans, however with ongoing debates over AI-generated music, remix culture, and more courts and legislators need to further refine where the balance lies. For now, any musician sampling should be mindful of what might be fair use since, when the tune sounds familiar, legal ears are never far behind.