Overview of the Music Sampling Process
and Tips for Success in Getting Sample Clearances
Every musician, musical act, or performer gets their start performing other people’s works first, before composing and recording their own. With the use of sampling so prevalent, the process on legally sampling music is astonishingly convoluted. Most individuals in the music and performance industry are not always certain on how to sample music, and what steps must be followed in order to legally sample music.
What is Sampling?
Sampling refers to using pre-existing recordings, music, or songs/compositions or other musical works for a different purpose, such as part of a new song, or as the background music to a YouTube or Vine video, crowdfunding campaign, film project, athletic routine, presentation, or similar use. Unless you obtain the rights to use the sample (called “clearing” the sample or obtaining “sample clearance”), you can run into trouble with allegations of infringement and of course, stiff legal fees if you are sued by the copyright owners.
The Starting Point: The Basic Rule
The basic rule is that you cannot use other people’s music without their permission based on protections made available by U.S. Copyright laws. For nearly every major-label artist, group, or band, however, the music is not actually owned by the artist/group, it is owned by the record label (for the master tracks) or by the music publisher (for the song compositions). Because music involves two sets of copyrights (copyright to the music recording and copyright to the song/composition), there is often the split of ownership between the master track/music recording and song/composition, meaning that you will need to get to separate clearances. Most performers who attempt to get sample clearances often cannot get the record label or publisher to respond or cannot afford the fees (which can be expensive).
When Do You Need Sample Clearance?
You will need to get sample clearance if you plan to make copies of the music that incorporates the sample or are distributing the music that incorporates the sample to the public.
You will generally NOT need to get sample clearance if:
- You are only using the sampled music at home and do not intend to use it commercially or distribute it to the public
- You are using the sample at live shows that are not being recorded by audio or video, which is rare, since there is usually someone in the audience recording the events by phone or other device
- Your use of the sample falls into “fair use,” meaning, it is an informative, educational, news-reporting, or other type of fair use
Process for Sampling Music Legally
Sampling music takes a couple of steps.
- You will need clearance for reproducing the song itself (the musical composition, lyrics, etc.). The song is generally owed by the publisher and songwriter. This is generally done through a service like Harry Fox.
- You will also need clearance for reproducing the recording of the song (the master recording). These are owned by the label that produced the album/LP/EP/Single.
Who to Contact to Seek Sample Permission
The appropriate company/group/agency to contact to seeking sample permission is going to be based on what you are going to be doing with the sample. What will you be sampling? Just the song, or the master recording of the song?
- Master Track or Composition. The names and information for the label/publisher will be listed on the performing rights organizations, such as ASCAP, BMI, and SESAC
- Distributions & Cover Songs. If you are only distributing someone else’s music (and not sampling it) or covering the song, then you will need to contact Harry Fox Agency for a mechanical license
- Synchronizing to Video. If you are attempting to synchronize music to a video then you will need to obtain a sychronization license using eSynch.
- Displaying or Reprinting Lyrics. You will need to contact Harry Fox Agency to clear the license.
- Background Music, Ringtones, or Digital Jukeboxes. You will need to contact Harry Fox Agency to clear the license.
- Print sheet music or Karaoke. You will need to contact the music publisher.
Details You May Be Asked to Provide
In seeking sample clearance, the publisher, label, etc. will probably ask you a number of questions, which would be helpful to have the answers to:
- How and How Much? How much of the sample will you be using? You should note this in terms of minutes/seconds and number of measures/bars of music. You should also be prepared to provide a copy of your recording that incorporates the sample, if asked.
- Where and When. You should also be prepared to provide information about where the track can be accessed, how long it is, and when the tentative release date is.
Are They Required to Respond to Sample Requests? No. Getting these clearances is mandatory, and the record label and publisher/songwriter do not have any obligation to grant you the license to sample. They do not even have an obligation to respond to you.
What Happens if you Sample Without Permission? You will likely receive a cease/desist demand asserting copyright infringement, and you will have the option to either agree to the terms they are asking for, and likely discontinuing all uses of the sample.
Publisher/Label Fees and Terms
Assuming that the publisher and label respond to you and approve your use of the sample, they will want compensation for your use. Typically, this consists of the following:
- Up-front Payment. The will want you to make an advanced payment to them, similar to a fee for use of the sample.
- Royalties. They will also want a percentage of all money that you make from your song. This can range from 15% to 50% or even higher.
- Stepped up / Escalated Rates. It can also be common for the publisher and/or label to ask for stepped up rates, namely, increases in payment and royalties beyond X or Y amount of sales, downloads, or streams.
How Do You Locate the Publisher or Label?
To find the appropriate publisher or label for a song, try researching ASCAP, BMI, SESAC, and Harry Fox. Those agencies and performance rights societies keep records and a database of the publishers, songwriter, and other intellectual property rightsholders of songs, and will be able to help you locate who to contact.
What is Fair Use?
If you are using the sample for limited purpose, such as for educational use, in a classroom, to comment on, criticize, or parody the work, you do not need to obtain sample clearance. Generally fair use also requires that you do not take a substantial amount of the work as part of your use, that your use transform the material in some way, or that your use did not cause significant financial harm to the copyright owner.
If getting a sample from the record label is not going well, consider covering the song. Unlike sampling, covering a song is governed by federal law and it is much simpler for obtaining a license. Cover songs are completely legal if performed live and not recorded by audio or video. If the cover song is then recorded in some form (audio/video) and copies are made for distribution, then you will need to clear the license for mechanical royalties, for example, with Harry Fox Agency. There are special options available if you are an individual or small organization that has limited uses (i.e., up to 2,500 physical or digital downloads, or up to 10,000 interactive streams). The rate charts for the statutory license rate are here.
If you are interested in re-recording an existing song, keeping the song structure, melody, and basic song structure the same, then this process is governed by what is called a “compulsory mechanical license.” This is a right provided by federal law and much less expensive than sampling the song for use in a new work.
Publicity Rights of the Artist/Group
In addition to obtaining sample releases, if you are using the sample for purposes of selling or endorsing a product, and involves identifying the artist or group, you will also need to obtain approval by the artist/group to allow you to use their “name, likeness, and image.” The reason for this is because your use could create the belief that there is an endorsement of your product by the group or artist. Every individual including musicians and bands, has what is called a “right of publicity.” This right allows individuals to protect uses of their names, likenesses, images, voices, biographical information and other information. Musicians and bands have the right to prevent others from using their identities, band names, etc., from being used in connection with commercial purposes.
Practical Challenges of Getting Sample Clearances Successfully
With the mechanics of obtaining sample clearances aside, there can be practical challenges:
- Getting Through. Often, major-label companies and music publishers do not deal with a return phone calls, emails, or other communications of ordinary individuals, and sometimes take the approach that they will only provide sample clearance when there is a big fish was asking.
- Chicken-Egg Problem. Sometimes, publishers and labels will not provide a blanket release, and rather, want to hear the recording first to determine how the sample will be used. This means that the artist/group will have to record the song, incorporating the sample first, before having a usable product to provide the label or publisher for sample clearance. If it turns out that the label/publisher will not give permission after hearing the recording, then all of the time and money spent on the recording will have been wasted.
- “Free 8 Bars.” Contrary to popular industry legends, there is no such thing as a “free eight bars” of music when it comes to sampling. If it is identifiable as a pre-existing work, it will need to be cleared. This means that it is not permissible to copy or sample even 1 second of someone else’s copyrighted work.
- Shoot First, Clear Later. From a practical perspective, some musicians deal with the problems of getting sample clearance by simply producing the new song, releasing it, and waiting to receive a cease/desist demand from the publisher/songwriter or label, to deal with sample clearance and licensing. Because it can be frustrating or expensive to attempt to obtain clearances before the song is recorded, some groups and artists simply make music without clearing samples, leaving those tasks to be handled by future labels, producers, and other executives in the event they become successful.
AXIS Legal Counsel represents entertainment individuals, professionals, companies, and musicians in a wide variety of matters, including clearing samples. For information on any entertainment matter, contact us a (213) 403-0130 or firstname.lastname@example.org.
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