Sampling is a form of copying someone else’s music (sound recording and the underlying composition). It happens when you deliberately take parts of someone else’s work and include it your own song. Sampling is considered an infringement of copyright, unless an adequate license is obtained for the use of the sampled materials.
– Sampling will infringe copyright in the music and/or the sound recording, if a ‘substantial part’ of the original and used without permission. Sample considered ‘substantial’ by reference to quality rather than length.
– When you approach copyright owners for a license they will consider the licensing use and decide whether to grant said license or not (copyright owner is entitled to refuse permission).
– You will be required to pay a fee and/or royalties and to credit the original writers/ copyright owner from which the sample is taken as a condition of any license.
– Music which was made or released within the last 90 years (length of copyright in the UK) is still protected by copyright and can only be sampled with permission from the copyright owner of the recording.
– In addition, a license must be obtained from the copyright owner of the underlying composition. A license for the composition will not be needed if you re-record the composition.
– Under the Moral Rights legislation, sampling is also a potential breach of the moral rights of the composers whose work is sampled.
How not to clear a sample
– You cannot fully clear a sample by re-recording it. If you choose to re-create the use, you still need the publishing clearance.
– Altering the sample (even to the point of making it unrecognisable) does not relieve you from the responsibility of clearing it.
– Sampling a track which already cleared its samples doesn’t get you out of clearing them.
How much of a song can I use before I need clearance?
It does not matter how long the sample is. A clearance is needed even if the sample is the sample is as longs as half a second. A case illustrating the following below:
The case centred on the song 100 Miles and Runnin, which samples a three-note guitar riff from Get Off Your Ass and Jam by George Clinton and Funkadelic. The song was included in the 1998 movie I Got the Hook Up by No Limit Films In the two-second sample, the guitar pitch has been lowered, and the copied piece was “looped” and extended to 16 beats. The sample appears five times in the new song.
The court ruled that recording artists should licence every musical sample included in their work even minor, edited, unrecognisable snippets of music. The court posed the question “If you cannot pirate the whole sound recording, can you ‘lift’ or ‘sample’ something less than the whole?” The Court’s answer to this was NO; and the court added “Get a license or do not sample – we do not see this as stifling creativity in any significant way.”
What difference does it make if the of the sample is used little or a lot?
If the sample is extensive and underpins the song to such an extent that the track won’t really work without it, you’re in a weak bargaining position. In such case, a Record company can demand a high royalty -as much as 50%.
How do I approach a Record label or Publisher in regards to obtain a clearance?
Provide information about the planned releases (name of the label the song will be released on and how many copies will be pressed). Depending on the contract between the label and the artist, sometimes the artist will have reserved the right to approve sample licenses in which case it is ultimately their decision to allow for the sample to be used or not.
– Sampling from a small label artist: a small record company may want a flat fee, known as a ‘buy-out’. If you’ve sampled a relatively unknown tune and it’s quite a short release you might end up paying just around £500 but they may build in a condition that another fee is payable if you want to press more records.
– Sampling from a large label artist: a larger label or bigger artist may want a royalty – usually 1 to 3 per cent. They’ll probably want an advance against that which may be several thousand pounds. You may be able to reduce the royalty by paying a larger advance or reduce the advance by offering a larger royalty.
Getting clearance for published samples.
Publishing companies will typically want a royalty but not an advance. For light usage of a minor artist this can be less than 10%. For a larger artist it may be 50% or more.
How does sampling affect my royalties?
The royalties for samples will be deducted from artist share of record and publishing royalties. Artist may also have to give up some of their performer’s royalties to the people who performed on the sampled record.
What if I cannot find the copyright owner?
Do not proceed with use until you have obtained clearance in writing from all copyright owners concerned and all clearance terms and conditions agreed. To proceed without all necessary clearances in place will equal breach of copyright.
Can I approach the band/writers directly?
Clearance must be sought and obtained from the copyright owners. In most cases this is the record label and publisher.
How long will it take to get an answer to my request?
Publisher will often discuss the clearance request with writers of the composition that has been used. If writers are recording, touring or working on other projects the clearance can be delayed.
If the composition that you wish to use is not UK copyright, the publisher may need to liaise with a foreign publisher who in turn may need to liaise with the writers.
What can I do if my request is denied?
You must remove the sampled from your work. To proceed without all necessary clearances in place may well result in action being taken against you for breach of copyright.
by Juan Lopez, Legal Consultant
Image source: Mike Licht