When it comes to using recorded music samples in a new composition, there are many who create in a dangerous legal limbo land without understanding what the rules are. In the absence of legal counsel, they choose to rely on the advice of acquaintances who peddle rumors of the “two-second” or “four-note” way to skirt copyright infringement and whisper of a vague concept referred to as “fair use” that will protect them. Be advised: In the courtroom, should you be unfortunate enough to find your presence requested there, it’s all bad math.
So here we shall not argue the ethics of sampling, its social value, or any other such philosophical quandaries concerning the “rightness” or “wrongness” of said act from an artistic perspective. Instead, we shall outline the rules in as black and white a manner as possible for those who want to be sure that they are not breaking the law. As with all things legal, however, this article is only intended as a guide and should not be interpreted as legal advice. Speak with an intellectual property lawyer for guidance directly applicable to your own projects.
So, What Are the Rules?
At the most basic level, if you want to make a copy of all or a portion of a commercial recording for use in a piece that you plan to distribute, you must obtain the permission of two rights holders: 1) the copyright owner of the piece (this can be the composer or the publisher, depending), and 2) the copyright owner of the sound recording (the master rights holder, usually the recording company). If you do not have both of these permissions on file, you risk committing copyright infringement.
Though it is popular to suggest that such copyright infringement is “no big deal” if you are not a Billboard-charting artist, consider for a moment just how deep a hole such an act can dig you into. You are legally and economically liable for the infringement, and even an “honest mistake” on your part can cost you thousands of dollars in penalties. In addition, you might also be in violation of certain clauses in your own recording contract, which can get you into trouble (with its own punishing price tag) with your label and any distributors and retail stores with which they do business. This is especially costly if the court requires you to recall and destroy all the copies of your illegal work.
What Does It Cost To Clear?
Once you understand the rules and the financial risks of breaking them, it appears to make quite a bit of sense to always clear your samples, no matter the headache. Unfortunately, the process can cost you much more than a bottle of aspirin in time and cash.
To start, you must determine who owns said copyrights. The Internet directories provided by performing rights organizations such as ASCAP and BMI are a good place to start looking for the copyright holder of the work you would like to use. From there, you venture into the task of locating the owner of the master recording. This information is often clearly printed on the CD, tape, or record but, the recording business being what it is these days, companies often fold and ownership of the masters can be difficult to suss out. There are clearance houses and freelance clearance experts who can help speed you through the process using their experience and their rolodex of contacts, but the cost may rule out this option for an independent project.
Once you locate the owners, start making phone calls. Major labels and publishers often have sample clearance departments. Otherwise, start by asking for the permissions department. Now the negotiations begin. All parties will likely want to examine exactly what the usage will be, meaning that you will have to do the work—assemble a rough cut or even a completely finished product—before it is determined that you will actually be allowed (and can afford) to use the material in the way that you wish. Contrary to the advice commonly given to composers of art song—namely, to always clear the usage rights to text they wish to set before a note of music is committed to paper—in this case you will likely have to do all of the work in advance. With sampling, you simply accept that you always run the risk your work will be for the entertainment of your desktop trash can.
There is no standard guideline or fee structure for sample usage, and some copyright owners find it not worth their time to deal with requests that will not net a significant income stream. When they do agree to work with you, the rates may seem prohibitively high if you yourself do not have a large-grossing project on the table and a major label (and that label’s lawyers) behind you. A sample deemed “very central” to a secondary project could be met with a request for a 50:50 profit split, possibly in addition to an upfront fee. If a usage is not expected to earn much in terms of unit sales, you can be asked for a larger fee up front over a percentage, but you also might be told that a fee will not be expected until you sell a certain number of units. Be clear if you are an unsigned or small-label artist: this may tip the conversation towards more financially agreeable terms. Ultimately, you don’t know until you ask: it’s all about the negotiation.
Several publishers closely aligned with the new music field said they will almost always be willing to discuss the possibility with a composer, household name or no, and begin negotiations. The rate they charge, however, “totally depends on the usage, how important it is to the piece,” says Boosey & Hawkes’s Senior Music Consultant Ken Krasner, who declined to speak about specific musical compositions, composers, or rates. “If it’s the key to the song, it will cost a lot more.”
Gene Caprioglio, composer liaison and director of rights clearance at C.F. Peters Corporation, says the issue doesn’t come across his desk very often. When the company has been contacted with regard to clearing a sample, it’s usually been an intersection with the pop world. New Age record producers are also among the most frequent sample requesters. A DJ recently requested the usage of a sample that was deemed a significant piece of the composition, and Peters asked for 50 percent ownership of the resulting track. The pop group Maria looped a two-bar sample from the John Cage prepared piano work Sonatas and Interludes in their track “Weakness,” and though he declined to discuss the details of the monetary arrangement for the usage, Caprioglio did note that Cage was also given a writing credit.
Though he sees the difficulty in the situation for composers using samples, Caprioglio confirms that he would need to hear a completely finished track before granting a usage clearance and determining the cost. “You really have to in order to determine what your composer’s part of a finished composition is. I see how that could be a problem, but if you’re going to use someone else’s work, you have to take that into account.”
Some independent artists suspect that the economic impact of their projects will prevent anyone from spending the time and money to pursue them if they commit copyright infringement. Since they may only sell 2,000 discs, they count on the idea that no one will find out about the infringement in the first place. These artists may decide to risk the usage for these reasons, though of course this does not offer them any sort of legal protection.
As mentioned at the outset, there are no magical formulas for determining when it is okay to use a sample without permission. Any sample that is recognizable (or can be reverse-engineered to be recognizable) that you do not clear may be subject to the copyright owner claiming foul.
The determination that copyright infringement has occurred will rest less on the length of the sample, and more on a consideration of its recognizability, how substantial a portion of the original work you have used, and its role in your own composition. Altering the sample significantly or using a very small portion may get you out of copyright infringement of the composition or the recording, but not necessarily both.
If you want to cut corners without breaking the law, there are some options open to you. You can avoid having to deal with the owner of the sound recording if you record your own version of the sample you wish to use. However, you must still clear the usage of the piece itself with the publisher.
Also, in addition to sample libraries which, like clip art, are actually sold for this usage (though check the fine print before you distribute your work), there are a number of artists who are friendly to sharing their music with you. Often these works are flagged with Creative Commons licenses, which outline specifically in what ways the tracks may be used legally.
You might also consider using the music of friends and close colleagues to help smooth your way through the clearance process and quite possibly reduce your costs, but as with all things legal, be sure everyone is on the same page by getting all permissions in writing.
Something to keep in mind is that these rules apply to the act of copying and distributing a music sample. If you perform a sample live off a legally purchased commercial recording in a venue covered by the blanket licenses offered by performing rights organizations, you are probably in the clear. Unsure if your venue is covered? Be sure to ask before show night.
The Cost of Doing Business
If you are overwhelmed at this point, you are not alone. The clearance process often takes time, money, and patience.
Composer R. Luke DuBois says he will always clear explicit samples, but doesn’t usually clear those that completely obliterate the source material. Clearing something off a new recording is not so difficult in terms of determining who you need to ask, but it still “often turns into a silly little game where the label owning the sample tries to overemphasize the role of their sample in your song to increase their fee, and you try to underemphasize it,” says DuBois. If, however, the label has folded or the master rights have since been purchased by a multinational corporation, he says it can become “a labyrinthine quest” to connect with someone who has the authority to clear the sample.
For example, faced with clearing a 1940s big band sample, it was a real challenge to determine who might own the rights, since the label was defunct and the composer, arranger, singer, record producer, and bandleader were all dead. DuBois recalls, “Eventually I ended up with a man at a label that had the reissue rights (but hadn’t yet reissued the record) who told me that, given that we were making very few discs, he was only interested in negotiating a percentage if we were to do a second, much larger pressing, as the legal fees involved in drawing up the contract exceeded the amount of money I would have paid out on a 5,000 disc pressing anyway. So the whole thing was moot in the end.”
What does clearing the samples cost him? “It’s mostly time. Despite the fact that a lot of my artwork deals with cultural commentary and resampling pop media, I’m not particularly interested in breaking the law, so I try to fairly evaluate what I’m about to undertake to see if it’s legitimate given the scope of the release.”