Throughout music history, it has been common for creators to use pre-existing works as starting points to reinterpret, transform, or integrate them into new compositions. This dialogue between the old and the new can take many forms: a faithful rendition (cover), a stylistic or sonic restructuring (remix), or the incorporation of fragments from another recording into a new piece (sampling). While these practices are artistically legitimate and often innovative, they exist in constant tension with copyright law, which grants rightsholders exclusive control over the reproduction, transformation, and public communication of their works.
Legally, any use of a protected work requires, in principle, authorization from the copyright holder(s). However, the type of authorization required varies depending on the nature of the use, the rights involved, and the context in which the work is distributed.
Covers: a more accessible path
In the case of covers, the general rule is that only the authorization of the copyright holder of the musical work (the composition) is needed. In principle, there is no need to obtain permission from related rights holders, such as performers or producers. Still, the legal requirements depend on the specific use of the cover.
When performing a cover live, what is required is authorization for the public communication of the work. In practice, this license is usually managed through the collective management organization to which the author or rightsholder belongs. Often, this is already handled by the event organizer, venue owner, or broadcaster, freeing the performer from having to secure the license themselves.
Recording and distributing a cover, however, requires a different authorization—specifically for reproduction rights, and depending on the medium, distribution or online availability rights. In these cases, authorization is usually negotiated directly with the rightsholder and may include conditions on royalties, territory, or duration. While more involved than live performance, the process remains manageable with proper agreements in place.
Remixes and sampling: greater legal complexity
Unlike covers, remixes and sampling involve the literal copying of portions of a pre-existing recording. This significantly complicates the legal landscape, as multiple rights are at play: the copyright in the original musical work, and related rights in the phonogram (owned by the producer), as well as the rights of the performers involved.
Using sound fragments—whether transformed, reorganized, or inserted into a new creation—requires permission from all relevant rightsholders. This can be particularly difficult when the phonogram belongs to a major label or involves multiple contributors.
While covers typically reimagine an existing song, sampling involves a more intricate creative process. It requires isolating, manipulating, and recontextualizing audio fragments to produce something new. Thus, sampling aligns closely with the legal concept of “transformation” of a protected work.
The tension between creativity and copyright
It is in sampling where the tension between copyright protection and creative freedom becomes most pronounced. Although sampling represents a sophisticated and widely used form of musical creation, the current legal framework imposes high costs and complex procedures that are often prohibitive for independent artists.
As Vincent R. Johnson II explains in his article Sampling as Transformation: Re-evaluating Copyright’s Treatment of Sampling to End Its Disproportionate Harm on Black Artists (2021), clearing samples legally is so expensive that many artists—except those backed by major record labels—simply cannot afford to produce or distribute sample-based works. This reveals a structural limitation in the system, which favors those already within the industry while excluding many from marginalized or emerging communities for whom sampling is an essential expressive tool.
In response, some authors have proposed a more flexible legal approach. Sam Claflin, in his article How to Get Away with Copyright Infringement: Music Sampling as Fair Use (2020), examines the case State of Smith v. Cash Money Records, Inc. as a basis to argue for the application of the fair use doctrine in sampling cases.
However, relying on fair use as a defense remains risky. While it may provide legal protection in some cases, it can also lead to costly litigation—often more expensive than obtaining a license in the first place. In that sense, fair use does not eliminate legal risk; it simply shifts it to a more uncertain and adversarial setting.
Modern practices such as covering, remixing, and sampling reflect the evolving nature of musical creation, but they also highlight the limitations imposed by copyright law. While covers generally follow a more straightforward legal path, remixes and especially sampling pose complex challenges that demand a balance between protecting original authors and promoting transformative creativity.
Sampling, in particular, reveals the rigidity of the current system. Even when the final result is an original work, the law treats unlicensed sampling primarily as infringement, regardless of artistic merit. This restricts access for those with fewer resources and reinforces inequalities within the music industry.
Exploring more flexible models—such as collective licenses, automated sample clearance systems, or a broader interpretation of fair use—could foster a more inclusive and realistic regulatory approach. Ultimately, the goal should be to protect authors’ rights without stifling innovation or excluding voices with limited means but powerful creative potential.
