Same beat, different rights: US Court of Appeals says that it matters whether you copy a musical work or a sound recording

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Same beat, different rights: US Court of Appeals says that it matters whether you copy a musical work or a sound recording

 Söğüt Atilla-Aydın Friday, October 31, 2025 - copyright, imitation, musical works, sampling, Söğüt Atilla-Aydın, sound recording, substantial part, US

Earlier this month, the Seventh Circuit of the US Court of Appeals rendered a decision (Eddie Richardson v Karim Kharbouch) concerning the different scope of protection musical compositions and sound recordings are entitled to enjoy. Although the court’s findings are not particularly novel or unexpected, they touch upon some of the most debated issues in music copyright, namely music sampling and identifying substantial similarity between two sound recordings. That said, in the specific case, the claimant failed to submit relevant material evidence, so the court did not engage fully with these discussions.

Background

Richardson created an instrumental hip-hop beat, titled “*Hood* Pushin Weight” (HPW) and uploaded it online. Several months later, he recognised his beat playing in the background of Kharbouch’s hit “Ain’t Worried About Nothin” (AWAN). Richardson immediately registered his HPW as a sound recording with the US Copyright Office and consequently initiated a lawsuit against Kharbouch, claiming copyright infringement. 

The district court ruled in favour of Kharbouch, as it was not able to draw a reasonable inference that copying, via duplicating HPW, in fact, had occurred.

Richardson appealed.

Establishing infringement of sound recording copyright

The Court of Appeals dismissed the appeal.

A DJ-Kat sampling some sounds

First of all, the court, outlining the necessary elements of copyright infringement claims, tried to identify whether Kharbouch had copied Richardson’s sound recording or independently created the relevant beat, and, if copied, whether his copying constituted an “improper appropriation”. As acknowledged by the court, in majority of the cases, it will not be possible to examine the whole creative processes of defendants accurately. As a result, it will be challenging to establish copying with direct evidence. That said, it is usually sufficient to rely on indirect evidence, which suggests a likelihood of copying, rather than independent creation, to establish infringement. If the defendant had access to the claimant’s work and if the defendant’s output is substantially similar to claimant’s copyright work, then courts tend to interpret these as indicating copyright infringement by unauthorisedly reproducing the copyright work. 

Equating a mere opportunity to copy with actual copying can seem problematic and unfair, especially when online accessibility makes works easily available. Courts, however, do mitigate this by holding that the availability of a work on public websites cannot in itself establish that the defendants actually accessed the work and copied it. Furthermore, even where access is inferred, it is still necessary to find that substantial parts of the copyright work are reproduced by the defendant. And finally, via the operation of the fair use defence in the US, defendants who are found to have accessed and reproduced substantial parts of a copyright work might still be exempted from liability.

None of these issues, however, arose in the court’s ruling because Richardson failed to provide persuasive evidence that Kharbouch had access to HPW, leading to the rejection of copyright infringement at the first step.

The court nonetheless offered some helpful comments on the substantial similarity assessment, by stating that what would qualify for substantial copying depends on the nature of the work allegedly copied. Accordingly, the court emphasised drawing a distinction between authorial and entrepreneurial works, because of the different protections envisaged for musical works and sound recordings. It cautioned that, in order to uphold the different scope of protection of these works and keep that difference meaningful, the infringement test should not be applied in the same manner to works of original authorship and to works that are protected on the basis of remunerating the economic investments made in their production. Although it can be argued that the court merely stated the obvious, it nevertheless is a significant point to draw attention to, as overlooking the reasons for the different scopes of protection and the different incentives they seek to provide to their creators might result in protecting even a very short but arguably striking part of a sound recording, for which the phonogram producer did not necessarily make a particularly bigger investment [see Pelham I and IPKat here, here, and here, for such a finding of the Court of Justice of the EU].

Consequently, the Court of Appeals reiterated that, while musical work copyright entitles the author to prevent any unauthorised imitation of the work, copyright over sound recordings merely expands to the duplication of the actual sounds fixed in the recording – which was also referred as sampling. Despite the court did not explain further what it meant by “imitation”, “duplication”, and “sampling”, it clarified that a defendant who mimicked a certain sound which is solely protected as a sound recording, via their own means or instruments would not be conducting an infringing act [Merpel: Mmm, wait! I remember this from the “Taylor’s Version” saga…].

Coming thus far in the infringement analysis, without demonstrating what could amount to a substantial part of a sound recording, and merely directing the readers to compare the differing approaches of the Sixth Circuit – i.e., reproduction of any amount is sufficient – and the Ninth Circuit – i.e., duplication of a substantial portion is necessary – without indicting a preference, was unfortunate. However, the language of the court seems to implicitly suggest that something more than any part needs to be reproduced for that act to be treated as a substantial copying of the sound recording.

Concluding remarks

This Kat was excited to see how the court started its analysis of the requirements for establishing copyright infringement in relation to sound recordings. She was also enthusiastic reading how the court, in essence, implied the distinct reasons of protecting authorial and entrepreneurial works should be upheld not only at the copyrightability step, but also – and perhaps even more importantly – at the infringement step.

If producers of fixations are entitled to enjoy copyright protection to the extent they are ensured the necessary means for some remuneration in return of their investments, they should only be allowed to successfully claim copyright infringement when they are deprived of the opportunity to obtain that remuneration. It is, therefore, highly unlikely that they would lose that opportunity simply on the grounds that someone else used, or even reproduced, the same short beat or melody in their work. It is thus advisable to some US courts (which follow the Sixth Circuit approach), as well as the CJEU, to keep this in mind and allow sampling as long as the producer of the sampled sound recording does not or is not likely to suffer economic harm as a result of that sampling.






Image credit: Gemini

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