The Budweiser’s recent one second ad campaign has drawn legal scrutiny across the board on the issues of copyright infringement and licensing. Sharing his thoughts on the controversy, S. Sri Ganesh Prasad analyses it from the lens of originality, protectability of fragments, and market substitution. Ganesh is a third-year B.A. LL.B. (Hons.) student at the West Bengal National University of Juridical Sciences (WBNUJS), Kolkata. He is interested in a wide range of private and commercial law subjects, including arbitration, intellectual property, and competition law. He particularly enjoys engaging with the discourse around the market implications of IP, its strategic use as a competitive tool, and the broader intersections of tech policy and public welfare. His previous post can be accessed here.
Sip, Sample, Sue? Budweiser’s One-Second Spin Through Copyright Foam
S. Sri Ganesh Prasad
For a brand best known for serving chilled beer, Budweiser now finds itself in surprisingly hot legal waters. Its “One-Second Ads” campaign, an eye-catching montage of music snippets, dares viewers to identify or guess a song by listening to just its first second. The concept is undeniably clever, but its execution has drawn legal scrutiny. With no licences secured and a public boast of spending “$0 on music rights,” the campaign leans heavily on cultural familiarity without compensation.
This raises a sharper legal question: can such musical one-second fragments trigger copyright infringement, mainly when used deliberately and commercially? This post examines the Budweiser campaign through a critical legal lens, focusing on originality, protectability of fragments, and market substitution. Drawing on jurisprudence from the U.S., EU, and India, it explores whether the law should shield such fragments, and when strategic brevity crosses the line from innovation into infringement.
The Threshold of a “Work”
A common assumption in the Budweiser “One-second Ads” debate is that recognisability automatically implies protection, that if a sound triggers a memory, it must be a copyrighted work. However, legally, the threshold is originality, not association. Just because you recognise a beat note or sound, doesn’t mean it reflects original authorship.
This becomes clear when we consider what originality entails. In India, the Supreme Court in Eastern Book v. Modak held that a work must reflect skill, labour and brain/capital, while the US Supreme Court in Feist Publications required a “modicum of creativity”. Similarly, the EU`s Infopaq test insists on “the intellectual creation of the author.” These standards converge on a common idea: protection attaches only when a fragment reflects a deliberate, creative act, not when it merely exists or circulates widely.
Most of the one-second clips used in the Budweiser campaign don’t meet the legal threshold for copyright protection because they lack what we might call musical structure or expressive content. For example, the campaign uses a snare hit from Nirvana, a quick piano chord from an Elton John track, or a breathy vocal entry from a Beyoncé song. These might be recognisable (which is the point of such a challenge or ad to have a degree of guessability as opposed to certainty), but they don’t have a tune, rhythm or a pression of sounds that would show creativity or planning. They are isolated moments pulled from a larger, richly composed whole. And for a fragment to qualify as a “work” in its own right, it must be more than familiar – it must be deliberately structured to reflect unique artistic choice. Copyright protects creativity, not recognition.
That’s where the importance of musical structure comes in. A melody unfolds over time, creating something you can hum or remember. A harmony, for example, gives a song its emotional colour – major chords sound cheerful, minor ones melancholic, and rhythm gives it pulse and energy. These elements turn sound into music and signal authorship, not accident. A one-second clip usually isn’t long enough to build any of these elements. It might sound familiar because it comes from a famous song, but it lacks the expressive features copyright law is meant to protect on its own. The difference between quoting a lyric and humming an entire chorus is that while the former may evoke the song, it doesn’t recreate its creative core.
However, in some instances, courts have not completely disregarded recognisability. It has played a role in determining whether the fragment was deliberately extracted from a known source to trade on its familiarity. It becomes relevant in analysing commercial intent and market impact. Courts have grappled with this decision in different ways. In the US, the Sixth Circuit`s decision in Bridgeport Music famously took an uncompromising position: any unauthorised use of a sound recording, even if it’s a second, was held to be automatically infringing. The court stated bluntly, “Get a licence or do not sample.” However, this applied only to sound recordings and not compositions, while this rigid stance drew scholarly criticism.
This culminated in the Ninth Circuit`s VMG Salsoul ruling, which deviated from this absolutism. In this case, Madonna`s producers had sampled a 00.23-second horn hit from another song in Vogue. The court reaffirmed the need for a meaningful similarity, whether the sample is perceptible and expressive enough to matter.
The CJEU in Pelham or the Kraftwerk case sought to strike a more tailored balance. It held that even very short samples could infringe the rights of a phonogram producer (i.e the recording`s producer) if they were recognisable and not transformed. However, this was based on related rights in phonograms, not copyright in musical works.
Indian law, meanwhile, defines a “musical work” under Section 2(p) of the Copyright Act as a work consisting of music, including any graphical notation, but excluding accompanying words or actions. Courts have clarified that for something to qualify as a musical work, it must not only involve melody or harmony but must also be reduced to writing or otherwise fixed in a tangible form. On the other hand, in India TV v. Yashraj Films, the Court considered whether short musical clips used in news broadcasting were sufficiently original and expressive. These decisions suggest that under Indian law, a musical segment must not only be fixed and authored but must also carry sufficient expressive content to qualify as a protectable work, with recognisability serving as one of several supporting factors, while the discussions surrounding sampling are still ripe.
These cases regardless underscore that usage of a clip, irrespective of its length, if intended for commercial benefit, and if the clip is both recognisable and untransformed, may still amount to infringement, not because of its duration, but because of its expressive value, auditory distinctiveness, or its function within a commercial context. One might argue that this is a more structured stance, as we avoid going down the slippery slope of how central or how long these fragments need to be for it to be infringing, not knowing where to draw the line. Thus, even brief clips, especially when strung together for a cumulative branding effect, are not immune from legal challenge solely due to their brevity.
Where Does It Leave Budweiser?
First, it’s critical to note that both Bridgeport and Pelham only apply after a threshold determination: whether the sampled material is legally protected in the first place. These cases do not and cannot say that every recognisable sound is protectable. Recognition alone is not authorship. If courts equated the two, copyright would collapse into brand association, protecting feelings of familiarity instead of actual expression. This would distort copyright law into something akin to trademark law, which is not its purpose.
In Budweiser’s case, this distinction is vital. Most of the one-second clips used in the campaign, such as snare hits, breaths, and short piano chords, do not meet the threshold of musical originality as explained earlier. They are part of well-known phonograms but do not carry musical structure alone. They’re recognisable because of the song they come from, not because they are independently expressive.
However, some clips might raise a different argument. A few fragments, such as the opening beat to “We Will Rock You” or the riff from “Smoke on the Water”, are arguably structured, creative and more importantly, form the genesis or identity of what the song itself is known by and is enough to stand alone as an original expression.
Still, Budweiser’s use is not about one iconic riff replacing a whole song; it’s about compiling dozens of low-threshold, high-recognition micro-samples into a cohesive commercial product. The innovation lies in the campaign’s structure, not in any single clip. This tactic, deliberately stringing together unlicensed, recognisable fragments, doesn’t violate the letter of the law under current Indian or US frameworks. But it certainly tests the spirit of the licensing system.
And then there’s the optics. Budweiser didn’t just do it; they boasted publicly about spending “$0 on music rights” while riding the coattails of others’ creative labour. That strategy, while clever, may invite judicial scepticism. Courts are often more forgiving of expressive accidents than commercial design by loophole.
From a policy perspective, intent, primarily commercial intent, should not be the decisive factor in determining infringement. Copyright is meant to protect expression, not to police motives. Whether Budweiser acted cheekily or sincerely, the real question must remain whether the use meets the legal thresholds of originality and substantiality. Letting intent alone sway outcomes risks collapsing copyright into a moral regime that punishes perceived opportunism rather than assessing actual harm or market substitution. Especially in a fragmented media landscape, it is essential to preserve objective standards rooted in protectable expression, not corporate behaviour’s optics.
Conclusion and path ahead
The Budweiser “One Second Ad” campaign forces us to confront a complex legal and normative question: when does clever use of fleeting, familiar fragments cross from creativity into infringement? As this analysis shows, recognisability is not enough to create copyright protection.
Moving forward, courts and policymakers must resist the temptation to extend copyright to every sliver of content based on market value or audience recall. At the same time, they must be alert to campaigns that use fragmentation as a means of systematic licensing avoidance. The solution lies in clarifying doctrinal thresholds: protecting genuinely expressive micro-works, while leaving space for low-impact, incidental, or referential uses.
In most cases, Budweiser may not have crossed a legal line, but its campaign draws uncomfortably close to one. That makes it a powerful case study, not just in copyright doctrine, but in how far creative industries can stretch fair use, de minimis, and originality standards without triggering a necessary legal response.