In music (especially the hip-hop genre) sampling has always been a major component. Taking different parts of a song, chopping them into segments, sequencing the segments in a different format then the original song, pitch shifting them up or down and changing the tempo to ultimately create an entirely new arrangement and track. Music producers will spend days searching through old records for the perfect sample to use for the construction of their new track. Producers like Kanye West, The Alchemist, Araabmuzik, and Dillinger are known for their amazing use of samples in the creation of their tracks. In the early days of hip-hop MCs would rap over what they called the breaks (meaning a part of a song, usually R&B, funk, disco) where just the drums and instruments were playing. From there, producers started to use these old records to construct their new records. However, when you sample an old track, (unless the track is over 75 years old and has become public domain) you have to get clearance from the owner of the original track to use it in your new production. (this means you have to contact any and everyone that owns any part of the song, whether that be the publisher, the artist themselves, the estate if the artist has passed) This can be a complicated process, due to the legality of using another persons track. Sometimes the owner of the track will not clear the sample, which means that you don’t have permission to use the sample in your new production, which means you either have to take the sample out, replay the sample, use only a small portion of the sample that is under a certain amount of play time which would get you around having to clear the sample, or scrap the track completely. Of course there are producers and artists that try to get around clearing samples and choose to release songs without clearance which can get dicy, because if the owner of the sample finds out that you used it they can garner your earnings of that record and take everything. (ask Robin Thick, Pharrell about Blurred Lines, ask Juice WRLD’s estate about his first major record) With all of that being said, how do you go about clearing a sample? What is the process and who do you have to contact?
When you do need permission to sample, the first step is to find the copyright owner. When you sample music from a pop recording, you need two clearances:
the first from the copyright owner of the song, usually a music publisher, and
the second from the copyright owner of the master recordings, usually a record company.
You can start with finding and contacting the publisher, as that is usually the easiest one to find. The best way to locate a publisher is through performing rights organizations, such as Broadcast Music Incorporated (BMI) or the American Society of Composers, Authors, and Publishers (ASCAP). These groups collect money for radio, TV, and other public performances of songs. In Canada, the performing rights organization is the Society of Composers, Authors, and Music Publishers of Canada (SOCAN).
Locate the key information on the Internet by visiting the performing rights society websites and determining which organization controls rights for the source song. You may also find help at the Harry Fox website at www.harryfox.com, which is a leading provider of rights management, licensing, and royalty services for the music industry.
Use BMI’s searchable database to find the source song.
If you cannot locate the song online, phone the performing rights organizations and ask for the “song indexing” department.
Once you discover the publisher of the source music, ask if it will grant clearance for the source music. Many publishers, unfortunately, have a policy not to grant permission for sampling.
Next, you have to locate the owner of the masters. Record companies often fold or sell their copyrights to other companies. In addition, sometimes rights in masters revert to the original artists after a number of years. In that case, you may have to use the assistance of a clearance expert or sampling consultant. Here are some ways to find the owner of the master recording:
Ask the publisher. Music publishers almost always keep records of the master owner, since they would have had many dealings with those owners during the course of the original production.
Find the record company that currently releases the music. To find this company, check online record stores, as well as the directory at your local record shop.
Use a clearance expert. For an hourly fee, sampling consultants will guide you through the clearance process, reviewing your use of samples and advising you of the expected budget and potential problems. Consultants can save you time and money because they’re familiar with the procedures, costs, and key people who license rights at the major music publishing and record companies.
Sometimes, all fails and you cannot find the master owner of the music, or it will not provide clearance to use the sample. Here are some alternatives to getting sample clearance:
Recreate the sample. Some artists avoid paying part of the sample clearance fee by rerecording the sampled section. You still need permission from the music publisher, but not from the owner of the master recording. How does this work? Let’s say you want to use a six-second sample. Instead of sampling the original recording, you play the parts yourself and rerecord the music to sound exactly like the original. In that case you have not infringed the master recording. Due to a quirk in copyright law, you can infringe a master recording only if you actually copy it, not if you imitate it. You do not need permission from the master owner.
Turn your attention to finding sample-friendly copyright owners. Some copyright owners are happy to clear samples, so much so that they encourage the process. Seek these out. For example, copyright owners of songs by the Average White Band and the Gap Band pro-actively seek to promote their music for sampling. Tommy Boy Records also makes it easy to acquire clearances.
Contact the artist or songwriter directly. If you run into problems with a music publisher or owner of a master, you may have better luck contacting the artist directly. This works if the artist still has some say or control in what gets cleared. For example, Shirley Manson of Garbage wanted to use the line, “You’re the talk of the town,” at the end of a song. Lawyers for the band ordered her to drop it, but Shirley called up Chrissie Hynde, who sent the following letter to Garbage’s attorneys: “I, Chrissie Hynde, hereby allow the rock band Garbage to sample my songs, my words, and indeed my very ass.”
Many artists releasing their own recordings cannot obtain clearances, either because they cannot get the music publisher to respond to their calls and requests or because they cannot afford the fees. What is the risk of going without a clearance? Using a music sample without clearance is always risky. However, as a practical matter, if you sell recordings only at shows and do not make more than 1,000 copies, your risk is reduced. The owner of the source recording will be unlikely to learn of your samples. However, if your recording becomes popular at clubs or on the radio, or if a major label wants to pick it up, you will have to deal with sample clearance, and might face consequences for your initial failure to do so. If you do use an uncleared sample, you can reduce your risks by:
making it unrecognizable by changing the music and/or lyrics
not using the sample as the primary groove or hook
burying it in the mix, and
not using the title of the source music in the title of your song.
If you decide to use samples without clearance, you might be in the clear in certain situations. Under U.S. copyright law, you do not have to obtain sample clearance if your sample is so altered that it does not infringe on the original, or your use is a fair one. If you alter a sample so that an average listener cannot hear any substantial similarities between your work and the sample, there is no violation of the law. Often, musicians can be inspired by a tune, but make it so radically different from the original that the original artists (and the public) would not see the tunes as the same.
Fair use is the right to copy a portion of a copyrighted work without permission because your use is for a limited purpose, such as for educational use in a classroom or to comment upon, criticize, or parody the work being sampled. Factors in determining fair use. When reviewing fair use questions, courts primarily look for three factors:
You did not take a substantial amount of the original work (say, ten seconds of a song versus 60 seconds).
You transformed the material in some way (for instance, you added new base sounds to a melody).
You did not cause significant financial harm to the copyright owner (perhaps you are using a bit of classical music in your heavy metal rock song, which appeals to a different market).
Do not believe the widespread myth that “less than two seconds is fair use.” There is no “magic number” like this. Also, some courts apply a fair use rule only to the musical composition copyright, not the sound recording copyright. For example, one judge ruled that any musical sampling violated the sound recording copyright. You can use the above arguments to defend yourself against a lawsuit for sampling without permission. The problem is you will not know for sure which way the judge will rule. And, most likely you will have to hire an attorney to represent you in court.
You are always on safer legal ground if you obtain permission, especially if you have a record contract that puts the burden of sample clearance on your shoulders. Such contracts usually contain an indemnity clause—which means that if you and the record company are sued, you must pay the record company’s legal costs.
To learn how to get the proper sample clearance, see How to Obtain Sample Clearance for Use in One’s Music.
Unfortunately, there is an extra wrinkle if you use a sample for purposes of selling or endorsing a product and the sampled artist is identifiable. In cases like this, you also need to get the source artist’s consent. That’s because the ad may create the impression of an endorsement. Without the consent, the source artist could sue for what is known as the violation of the “right of publicity.” So when you use a sample for an advertising agency or other commercial client, be aware that a third type of clearance or “release” may be necessary.
Nowadays, there are significant roadblocks for small independent labels who want to acquire sample clearance. For example:
Some owners of source music will not want to deal with independent or unsigned artists.
Often, the copyright owners will want to hear a recording that shows how much of the source you intend to use and how you intend to use it. That means you have to do your recording first, without permission. If you then cannot obtain permission, much hard work will have gone to waste.
Many small labels cannot afford the steep sample clearance rates. While there are no standard fees, the music publisher usually require:
an upfront “advance” payment (which could be anywhere between $250 and $5,000), and
a percentage of the song income (usually between 15% and 50%).
The owner of the master recording will want:
an upfront payment (usually at least $1,000), and
a “rollover” payment, which is made when a certain number of copies have been sold.
Sometimes, instead of a rollover, the owner of the master will ask for a portion of future record royalties (although sampling consultants advise against this practice).
Sample CDs or digital albums, recordings that contain sounds and riffs specifically sold to be used in samplers, can be a helpful alternative for small labels that lack significant financial resources. Most sample discs are “pre-cleared,” which means that by buying the disc, you are automatically granted permission to use the music without paying any further fees. However, the permitted use of pre-cleared samples may vary from one disc to another. Do not assume you can use the sample in whatever way you like. Review the documentation that comes with the CD for any license information. Most sample disc makers grant the user a “nonexclusive license” to use the samples, which means you, and everyone else, have permission to use the music. However, with a sample CD you do not buy the right to redistribute the samples, only the right to use them in musical works. If it appears that your purchase of the disc does not grant the rights you need, contact the soundware manufacturer. You might be eligible for a refund. Or, the manufacturer should at least be able to clarify the rights to which you are entitled, if there’s any ambiguity.
Overall, sampling is a major part of music and the production of music. Sampling isn’t just contained to using another persons song, it also constitutes using another persons sounds or created loops. For any producer that is using sampled sounds or full loops you have found on the internet this is considered sampling, and if you are lucky enough to get a major record off a track you created with any of these aspects be sure that everything is either cleared or under a free use clause so you are covered legally. Sampling is fun (believe me I have done it many times) but it is not always easy to clear the samples which means that even if you created the hottest track on the internet, you can’t make any money off that track if the samples are not cleared. There is nothing worse than uploading a track to YouTube only to have it taken down due to a copyright claim because the sample you used wasn’t cleared. Or worse, you start to make money off of this track only to have the owner get notified of the track and take legal action for lost wages. Be careful when it comes to sampling, and always make sure you are covered legally from every angle. As a new artist or producer if you do choose to sample it is best to release the track for free and not make any money just use it for publicity and notoriety. Once and if you get signed by a company or label, you will be better equipped to handle the legal side of sampling through who you are signed to and their legal team.
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