Before You Sample That Track, Please Read This…

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Wallace Collins is an entertainment and intellectual property lawyer based in New York. He has been in the business for over 30 years. Prior to this he was an Epic Records recording artist.  In this post he explains the basics of sample clearance.

“Sample” Clearance Issues

Many clients ask about whether or not they can “sample” from an existing sound recording and how much is permissible to use, and whether or not they need permission to embody a sample in their new sound recording.

Sampling occurs when a portion of a prior sound recording or fixation of sound is incorporated into a new sound recording. When such a use occurs two copyrights are involved: the copyright in the sound recording and in the underlying musical composition embodied in such recording. If sampling occurs without permission, copyright infringement of both the sound recording (usually owned by the record company and/or artist) and the song (usually owned by the publishing company and/or songwriter) has occurred.

In order to legally use a sample, you need to contact both the owner of the sound recording and the copyright owner of the underlying musical work for permission. License fees for sampling vary greatly and depend on how much of the sample you intend to use, the perceived value of the recording you intend to sample from, and the intended use of the sample in your song. Licenses can be granted “gratis” but usually there is a fee which is either a percentage of the record royalties and/or the mechanical royalties or for a flat fee paid upon execution of the sample license agreement (or a combination of both). There are no statutorily mandated rates for samples so the copyright owner can charge whatever the copyright owner wants to charge and does not have to grant permission to use his work at all.

Using samples without permission can lead to litigation where an infringer may be forced to pay damages to the copyright owner which could amount to hundreds of thousands of dollars per infringement. A court can also order you to recall and destroy all of your infringing copies and, in certain cases, can award the costs and legal fees incurred by the prevailing party in such a lawsuit.

Although the “2 Live Crew”/”Pretty Woman” infringement case turned on the issue of “fair use”, I do not recommend to clients that they try to rely on that copyright law doctrine when they want to use a sample in their work. And the idea that you can use a certain number of notes or seconds of someone’s song without penalty is a myth.

The only proper way to use a sample of a prior recording in your recording is to get permission.

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Image by Jochen Walters, licensed under Creative Commons Attribution 2.0 Generic (CC BY 2.0).

18 Responses

  1. Rickshaw

    Just do it. Don’t ask for permission. Ask for forgiveness. Everyone wins in the end.

    Reply
    • Myles

      Haha, It also worked out so well for grooveshark and gs_employee

      Reply
      • Rickshaw

        Boo hoo hoo. You say potato, I saw potahto. In the end, even if the sampling artist loses all royalties, they have gained press that push ticket, merch and other album sales. The artist who was sampled, gets paid. Spilled milk.

        Reply
  2. Musicservices4less

    Nobody cares if you don’t get the proper clearances when your music doesn’t earn any money. But bet your ass if it gets any sort of decent money and/or the master/con-artist gets signed to a major or established independent, it will get cleared usually at the full expense of the con-artist at a much higher price than if it would have been cleared originally.

    Reply
    • Wallace

      If you sample a sound recording, 1 note might be sufficient for a claim of copyright infringement (because it is an exact copy) whereas if u only take melody or lyrics from an existing song then there is no pre-determined amount that is sufficient, but the question of is it “substantially similar” is the legal threshold. Of course, if your music makes no money then the point is moot – although copyright infringement is still a violation. Best to be original or, if u sample, be safe (better safe than sorry).

      Reply
  3. Central Scrutinuzer

    I’m looking for a label to put on that poor child of a) information wants to be free tech crowd and b)”artists” who believe all of creativity is based on fair use sampling of other people’s work. It’s an odd group.

    Anyone have an appropriate label?

    Reply
    • Anonymous

      “It’s an odd group”

      🙂 Indeed — and their songs would be the most boring ones, ever.

      Copies of copies of copies, yaaawn…

      Reply
  4. Anonymous

    “And the idea that you can use a certain number of notes or seconds of someone’s song without penalty is a myth.”

    Almost, but not quite — there’s a reason for the infamous 8 notes: They often constitute two bars, and two bars often establish a recognizable, independent theme.

    Give it a try: 6 notes are rarely enough, as they’re shared with lots of other tunes in most cases (which means they can’t be copyrighted), and 9-10 notes are almost an entire song.

    8 is indeed a magical number in music…

    Reply
  5. Wallace

    If you sample a sound recording, 1 note might be sufficient for a claim of copyright infringement (because it is an exact copy) whereas if u only take melody or lyrics from an existing song then there is no pre-determined amount that is sufficient, but the question of is it “substantially similar” is the legal threshold. Of course, if your music makes no money then the point is moot – although copyright infringement is still a violation. Best to be original or, if u sample, be safe (better safe than sorry).

    Reply
  6. Richard Sorce

    Having to sample is simply euphemism for being uncreative.

    Reply
    • Sarah G

      People can be very creative with samples, it’s a great way to make new sounds. You could take my voice and make a synth-sound out of it, it’s pretty cool. I personally wouldn’t dub it ‘uncreative’, it just depends what you do with the sample.

      Reply
    • AP

      oh you are so wrong, if you knew how to sample you wouldn’t say that.

      Reply
  7. dmc

    Let’s assume U2 were the original creators and have all the copyrights to Jingle Bells. If I write a song and play those distinctive 6 chorus notes (jin-gle-bells-jin-gle-bells) on piano in that song at 3 different intervals, would I have something to worry about?

    Reply

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