Sound Advice

Your inside source to the world of entertainment law

with Peter Vaughn Shaver, Esq.
pvshaver@hotmail.com

As a follow up on last issue’s column on cover songs, this month’s legal rant is about the issue of sampling other artists’ recordings for use in your own recordings.

This is the scenario: You’re a musician or producer who wants to sample a segment of music from a previously created recording for use on a new sound recording. Unlike recording a cover version of another musician’s song, generally, you must get permission to sample already recorded material. Legally, you can only use samples where permission is given and payment is received by the owner(s) of the original work.
In fact, there are actually TWO separate permissions necessary for valid sampling: one from the owner of the sound recording, typically, a record company; and the second, from the owner of the composition, usually a publishing company or the songwriter. Permissions are usually in the form of licensing agreements and must be obtained from both parties before you can proceed. This process is referred to as “clearing” samples.
Sample licenses vary, depending on how much of the original recording is used and how it is used: you might have to pay more for a sample that is repeated (or “looped”) as a primary hook throughout the new song than a single use at the beginning or end of the song. Record companies and music publishers have discovered that sampling can be a decent source of revenue for back-catalogue recordings and most major labels and artists are very protective of samples taken from their songs.
So what are the risks of unauthorized sampling? For starters, you could lose all of your profits from the use of the sample and you might be liable for the other party’s legal costs. Federal copyright law alternatively allows for recovery of up to $150,000 per violation for certain types of infringements. Some artists and producers have disregard clearing samples in the hope that their use will pass unnoticed, or that they can settle the matter after being busted by the owners of the rights. This is a very risky strategy and there are many legal cases where the unauthorized sampler ended up paying a very heavy price. For example, when rapper, Vanilla Ice, sampled the bass line from Queen and David Bowie’s song “Under Pressure” in his song, “Ice, Ice, Baby.” Ice ended up looking like a fool trying to claim that he “created” the sample, and ended up paying a lot of money to the other parties and lost exclusive publishing credits for his “new” song.
There are some misconceptions out there about when you can sample without permission. You may have heard that it is ok to use certain minor amounts of others’ recordings without getting permission. Generally, this is not true. Even if you are taking just a few seconds of someone else’s recording without permission, you are committing copyright infringement. So, conceivably, even if you use only a two second sampled drum beat from a Led Zeppelin track, or a brief James Brown scream, you can get into trouble.
Recording contracts typically contain a “sampling” clause, in which the recording artist promises that they will be personally responsible for clearing all samples incorporated into new recordings. Contracts often state that if the record company gets sued for selling your CDs containing illegal samples, you will, in turn, be liable to the recording company. This means that you need to police your producer to make sure that no unauthorized samples are included in your recordings. Otherwise, you might be required to pay any penalties assessed against you or your record company.
Even if your record company doesn’t require sampling clearance liability, you still want to protect yourself if you self-produce or self-release your own material. Check the © and (P) notices displayed on the music you want to sample. You can then track down the owners of the material and try to negotiate licenses yourself. You research the ASCAP, BMI and Harry Fox databases on their websites for some of this information. There are also clearance companies and attorneys that you can hire to track down song owners, clear samples and negotiate licenses for you.
However, certain very limited uses of preexisting music are allowed under the copyright law concept of “fair use.” Basically, fair use (also known as “F. U.”) allows you to sample earlier creative works in the creation of new works without first obtaining permission. Fair use exists as a defense to charges of copyright infringement and is sometimes allowed for the purposes of parody, criticism, commentary, teaching or news reporting. Unfortunately, many restrictions apply and most commercial uses of musical samples are not permitted because the secondary use competes in the same market for the original, and/or may harm the value of the original work.
Some musical material may be in the public domain, including all recordings made before 1923 and any recordings whose copyrights have expired, notably, many recordings made before 1971. Public domain music can be used without the need to obtain permission. There are also sources of copyright-free sound recordings or instrumental sound clips that are available for purchase and use that simplify the sampling process.
The Bottom Line: Always clear any samples used in the production of your music. Using others’ recordings can be an expensive hassle if you don’t clear your samples up front. Don’t rely on begging forgiveness after the fact: you could end up paying a lot of money to BOTH the owner of the sampled sound recording AND the writer(s) of the sampled song. For more information on copyrights, check out the Copyright Office website at www.loc.gov/copyright.

Send your legal questions to pvshaver@hotmail.com, with “SOUND ADVICE” as the subject.

Disclaimer: The advice and opinions offered in this column are meant to be educational only and should not be relied upon as legal advice. Every situation is different and you are cautioned to seek advice from qualified counsel regarding the specific facts of your matter. Neither the attorney nor Music Liberation Project accepts any responsibility for any reader's reliance on the contents of this article.