What about fair use?

In Bridgeport Music, Inc. et. al. vs. Dimension Films et. al., the Court found that the use of 3 notes, lasting 2 seconds, from a sound recording called “Get Off Your Ass and Jam” (“Get Off” in the opinion) in the track called “100 Miles and Runnin” was not fair use.

What is fair use?

Fair use is a provision of US Copyright law that makes certain exceptions for the use of copyrighted material. One consideration for this exception is

"the amount and substantiality of the portion used in relation to the copyrighted work as a whole;"

(See full fair use considerations)

According to the court, the copied notes were not discernible by listening to the two tracks and comparing them, so it would seem that this would fall under fair use.

Why is sampling not fair use?

In Bridgeport Music, Inc. et. al. vs. Dimension Films et. al., the court said that it was not fair use because the defendant did not dispute that it sampled a sound recording. The court stated that

"The analysis that is appropriate for determining infringement of a musical composition copyright, is not the analysis that is to be applied to determine infringement of a sound recording."