derivative works: where editors get caught
US copyright law hands the owner of a work 6 exclusive rights, and the second one on that list is the right to prepare derivative works based upon the copyrighted work. that is 17 U.S.C. § 106(2), and it is the sentence that quietly governs almost everything an editor does to audio: chopping it, pitching it, speeding it up, looping four bars, stacking two tracks together. all sources here were read on 16 august 2026.
this is the companion to fair use for editors, in plain english. that post covers the defence you argue after someone complains. this one covers the thing you did that made them complain.
what a derivative work is, in the statute's own words
17 U.S.C. § 101 defines it as "a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted."
note two things. "musical arrangement" is named explicitly. and the catch-all is enormous: any other form in which a work may be recast, transformed, or adapted. the sped-up edit, the slowed-and-reverbed version, the eight-bar loop under your b-roll — those are recastings. the definition does not have a minimum size.
so the plain shape of it: making a derivative work is one of the owner's exclusive rights. doing it without permission is not automatically fine because you changed something. changing something is the exact activity the right covers.
source: 17 U.S.C. § 101 and § 106, read 16 august 2026.
danger zone 1: sampling, where the courts genuinely disagree
if you take audio out of a recording and put it in your own, two federal appeals courts will tell you two different things. this is not a nuance, it is a live split.
the sixth circuit's rule (2005). in bridgeport music, inc. v. dimension films, 410 F.3d 792 (6th Cir. 2005), the court held that unlicensed digital sampling of a sound recording infringes no matter how small the sample — no de minimis defence, no substantial-similarity test. the case turned on a two-second guitar sample, pitched down and looped. the opinion's famous line is "Get a license or do not sample."
the ninth circuit's rule (2016). in VMG Salsoul, LLC v. Ciccone, 824 F.3d 871 (9th Cir. 2016) — the madonna "vogue" horn-stab case, over roughly a quarter-second of horns — the court expressly declined to follow bridgeport and held that a de minimis exception does exist for sound recordings. the test it applied: whether an average audience would recognise the appropriation.
what this means for you, practically. the safety of an identical two-second sample can depend on which circuit the lawsuit lands in. that is a genuinely unsatisfying answer, and it is the honest one. "everyone samples" is a description of industry behaviour, not a rule you can rely on. and note that bridgeport's rule was about sound recordings — the underlying composition is a separate copyright with its own analysis, which is the next trap.
sources: bridgeport music, inc. v. dimension films (justia) and VMG Salsoul v. Ciccone, read 16 august 2026.
danger zone 2: there are two copyrights, and you probably cleared zero or one
every song you touch is two separate works: the composition (melody, lyrics, structure — usually the songwriter's and publisher's) and the sound recording (that specific performance captured on tape — usually the label's).
clearing one does not clear the other. sample the recording and you need the label. re-record the melody yourself and you have avoided the recording but not the composition. cover it note for note and you are squarely in composition territory.
there is a compulsory licence for making and distributing recordings of a nondramatic musical work — 17 U.S.C. § 115 — and it lets you make an arrangement, but with two hard limits written into the statute: "the arrangement shall not change the basic melody or fundamental character of the work", and the arrangement "shall not be subject to protection as a derivative work under this title, except with the express consent of the copyright owner."
read that second clause slowly. the statute contemplates you making an arrangement and owning nothing in it. that is the bridge to are remixes copyrightable?, which is the whole other half of this subject.
source: 17 U.S.C. § 115, read 16 august 2026.
danger zone 3: "transformative" is narrower than it was
editors reach for this word constantly, and it has moved under them.
1994 gave it to you. in campbell v. acuff-rose music, inc., 510 U.S. 569 (1994), decided 7 march 1994, the supreme court held that the commercial nature of a parody does not make it presumptively unfair, and that the more transformative the new work, the less significant the other fair-use factors become. that sentence launched a thousand video-essay disclaimers.
2023 took a chunk of it back. in andy warhol foundation for the visual arts, inc. v. goldsmith, 598 U.S. 508 (2023), decided 18 may 2023 by a 7-2 vote, the court held that the foundation's licensing use failed the first factor because the original photograph and the licensed warhol image "share substantially the same purpose." the two competed to license images to magazines. the court was clear that aesthetic or stylistic change does not by itself make a use transformative when the new work serves the same market purpose as the original.
the practical translation for editors. the question is no longer "did i change it enough?" it is closer to "does my version compete with theirs?" a track you sped up so it works as background music for a lifestyle video does the same job the original does, for the same kind of buyer. that is a hard place to argue from — precisely the analysis warhol sharpened.
sources: campbell v. acuff-rose music and andy warhol foundation v. goldsmith, read 16 august 2026.
danger zone 4: build on something unlawful and your own work has a hole in it
this is the one almost nobody knows about, and it is short.
17 U.S.C. § 103(a) says the subject matter of copyright includes derivative works, "but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully."
and § 103(b): copyright in a derivative work "extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material."
so if you build a track on an uncleared sample, the part of your work that uses it gets no protection. you can be infringing and unable to stop someone else from copying that portion of your own release. it is the worst of both directions at once.
source: 17 U.S.C. § 103, read 16 august 2026.
danger zone 5: your royalty-free licence may forbid the derivative anyway
paying for a track solves the copyright question and then hands you a contract question. licences routinely restrict what you may do with the audio as audio, separately from what the statute says.
the pixabay content licence is a clean example: it allows you to modify and adapt content into new works, and allows commercial use of the modified work, but forbids selling or distributing the content on a standalone basis without meaningful creative modification. so scoring your video is fine; releasing "the remix" as a track is a different act with a different answer.
canva's content licence agreement draws a comparable line for client work — you may hand a finished design to a single client under a written agreement, but it "does not entitle you to transfer or sub-license Content to your client for use outside of a Canva Design, or on a standalone basis."
the pattern repeats across the paid libraries: you licensed the track for use inside a finished piece, not as raw material you can redistribute. the current prices and plan scopes for the main libraries are in royalty-free music sites and what they cost, and what your editor bundles is covered in video editors that include royalty-free music.
sources: pixabay licence summary and canva content licence agreement, read 16 august 2026.
the checklist that keeps you out of all five
- name both copyrights. who owns the recording, who owns the composition. if you cannot answer, you have not cleared anything.
- treat every edit as a derivative. speeding up, pitching, chopping, looping, mashing — § 101's catch-all covers all of it. the question is whether you had permission, not whether you changed it.
- stop using "transformative" as a plan. after warhol, ask whether your version competes with the original in the same market. if it does, the argument is weak.
- read the licence, not the marketing page. "royalty-free" tells you about royalties. what you may do with the file is in the terms.
- never build on something uncleared. § 103(a) means that part of your work is unprotected even if nobody ever sues you.
- for anything commercial, license first. it is cheaper than the alternative every single time.
and keep the source file
half of clearing anything is being able to say what it is. if the track lives only as an unlabelled export called audio_final.wav, you cannot license it, credit it, or prove where it came from.
Sound Cache files audio into a local folder that is yours with the title, artist and artwork attached, so the answer to "what is this and who made it" is one search away eight months later. knowing the artist is the first step of every route on this page — how to credit sounds and creators covers the next one.
related reading on this site
- are tiktok sounds royalty-free? — the platform-licence version of this question
- are remixes copyrightable? — what a remixer owns versus licenses
- royalty-free vs copyright-free vs public domain — the vocabulary, sorted
tl;dr
preparing a derivative work is one of the copyright owner's exclusive rights under 17 U.S.C. § 106(2), and § 101 defines derivative work broadly enough to cover any recasting, transformation or adaptation — including a sped-up edit or an eight-bar loop. sampling sits on a genuine circuit split: the sixth circuit's bridgeport rule (2005) says get a licence or do not sample, and the ninth circuit's VMG Salsoul (2016) says a de minimis exception exists. every song is two copyrights, and § 115's arrangement privilege explicitly gives you no derivative-work protection without the owner's consent. warhol (2023) narrowed "transformative" to ask whether your version competes with the original. and § 103(a) means anything you build on unlawfully used material gets no protection in that part. license first. ✦
