The law of fair use in the United States is confusing. A big reason is that there are not many judicial decisions on the meaning of fair use and the decisions that do exist often involve atypical circumstances from which it is hard to discern general rules. This is because few people have the resources to defend themselves against a copyright infringement claim all the way to judgment. Nowhere is this more true than with respect to music sampling. Nobody knows when sampling constitutes fair use because there is no case law telling us. Many producers, especially those with major labels, license samples rather than test the boundaries of fair use in court. While a series of test cases could produce clarity and encourage license-free sampling, nobody wants to run the risk of losing and having to pay out the substantial damages that are available to copyright owners under the Copyright Act.

Don’t look for cases clarifying sampling rules in Denmark either. In the first case in that country involving copyright and music sampling, a court has issued a judgment of more than 1 million Kroner (around $200,000) against  electro group Djuma Soundsystem. This judgment, if preserved on appeal, is likely to make others think twice about sampling and lead to lawsuits for sampling being settled–without anybody ever finding out when sampling is actually lawful.