Sampling Safely – A Primer to Avoiding Lawsuits

The use of samples is a staple of many genres of music. With the advent of sampling technology in the 1980s,

musicians, producers and recording engineers began to experiment with incorporating clips of historical and/or significant audio recordings as an element in new records.

Prior to a landmark case in 1991, which codified sampling practice and the consequences for using samples without proper permissions, the record industry turned a blind eye toward the increasingly popular practice. However, once legal precedent was clearly set, record companies began to insist that producers and artists deliver signed licenses for any samples used in a new recording prior to the label pressing the CDs.

What is the process for getting permission to sample someone else’s music? We’ll start off explaining the steps, which on the surface seem fairly straightforward. Then we’ll talk about the practicalities of actually getting samples “cleared,” the term used to describe this often-misunderstood part of the music business.

The Road to Sampling Safely

Let’s start off with a hypothetical case using an actual song that we might want to sample for a new recording. Before we go further, it’s important to understand that if you want to use a sample of an existing recording, you actually need two distinct clearances due to copyright law. The first is the copyright embodied in the underlying musical composition – called the song copyright. The second relates to the copyright embodied in the sound recording itself – which is referred to in music licensing parlance as a “master license.” The publisher that represents the songwriter normally controls song copyrights. The record label that originally financed the recording and release of the commercial recording you wish to sample normally controls master rights.

I picked the song “Watermelon Man” by Herbie Hancock, released on his 1962 debut album as a leader on Blue Note Records – catalog number 465062. Aside from the fact that the song is an instantly recognizable classic, it is also a song with the added benefit of having a single publisher. (The more recent the song, the more likely there may be two or more publishers with joint copyright ownership, which can make clearing your song more time-consuming.)

Locating publishers and their contact information is relatively easy, as both ASCAP and BMI have excellent search indexes. If you are having difficulty determining publisher information, be sure to first double check that you are spelling the name of the song and/or artist who recorded the song, or the songwriter correctly. If you still come up with a blank, your next stop should be the SESAC website or Limelight by Rightsflow. Assuming you have located the publisher and their contact information, it’s time to move on to the record label.

Surprisingly, the bigger the record label, the harder it sometimes is to find their contact information. They aren’t in the business of communicating with consumers, so you’ll need to use an online directory or a printed directory such as the Billboard International Buyer’s Guide or the Musician’s Atlas, both of which may often be found at larger public libraries and online.

As a general rule, the larger the record company, the more critical it is to get your request to the right department, as most major labels have ten or more departments and employ a wide array of people. Your goal is to get your master sample request into the hands of the label’s Licensing Department, or the Business and Legal Affairs team, who will likely route it to a Licensing specialist. If the label is an indie, the same person who answers the phone may be the licensing coordinator. Many indie labels also proudly list their contact information on their web site, because they want to speak with their customers (and many are happy to negotiate a sample license.)

Requesting Permission

Did I mention that in addition to sending in your sample request forms, you’ll also need to send in a CD-R or an MP3 of your finished song (or a rough mix) so the copyright owners can hear exactly how you will use the sample?

As a result, if you can find the email contact information for the person in the licensing department you will be working with, and the copyright owner allows electronic sample request submissions, do so. This will save the time of writing letters and mailing CDs to them.

Here’s a link to a copy of a sample clearance form that you can use as a model. It includes all the pertinent information that a music publisher or record label will need (excluding your song with the sample included) to reach a decision. This one is based on the form used by a major publisher and as you will see, they want you to mail in a CD that includes:

1. The originally sampled song
2. Your new song with the sample included
3. A lyric sheet for your new song.

Regardless of First Amendment free speech rights, some artists don’t want their music sampled if, in their opinion, the new song might include strong language or other objectionable references.

Sample Request Form

Once you’ve sent in your sample clearance requests, it’s basically a waiting game until you hear back. If you haven’t already done so, you might use the time to come up with a few backup samples that might serve the same purpose in your new song. Having some alternates will save heartache later on, if your requests are declined.

What Will It Cost?

Here’s where things get a bit more complicated. In the case of the master clearance, according to veteran music attorney Donald S. Passman’s indispensible reference book, All You Need to Know about the Music Business, the fees master owners charge for samples is “around three to eight cents [per copy], sometimes more … they’ll also want an advance.” A sample advance is a prepayment of royalties before you have sold any copies of your new recording. Passman goes on to say that publishers will almost always “Insist on owning a piece of the copyright, songwriting royalties, and publishing income.” How big a share they’ll ask for depends on how significant the sample is to your new recording. If it’s a small component [in their view], the range might be 10-30%. However, Passman goes on to say that, “If you’ve lifted an entire melody line, or their track is the bed of your song, they might take 50% or more.”

So although you may be able to secure a master license for a few pennies on each recording sold, the song’s publisher more often than not will ask for a percentage of ownership in your new song. As many a music attorney has advised his clients seeking sample clearances, “When you use samples, you give up a piece of ownership and income of your new songs.”

Some publishers may accept a one-time fee for very minor sample uses, but there is no hard and fast rule. So get ready to use your negotiation skills to try to land the best rate possible for your sample clearances.

Save Time and Money with Replays

Increasingly artists have started to secure only the song sample copyright clearance, and not the master rights. Why? Because with the increased sophistication of affordable recording technology, musicians can create a replay, which is the sound of the original recording, which copyright law allows. Since you won’t be using the original sound recording, you’ll only a single clearance to proceed, from the song’s publisher, assuming you can recreate a convincing sound-alike in your own studio. This can definitely save time and money.

S-O-S for Sample Clearance Help!

If the maze of research, sample requests and licensing jargon seems a bit much to work your way through, especially if you are busy focusing on creating your music, you can hire a sample clearance house to assist you with researching ownership and negotiating the necessary permissions. You’ll still have to pay for the various clearances, but the advantage is that a music licensing professional already has contacts at most publishers and record labels and may also be able to help you negotiate the most favorable rates possible. A list of sample clearance houses may be found in the story links following this article.

Remember, there are some artists who strictly prohibit any sample use of their music, such as The Beatles. As a last resort, if an artist you want to sample can be reached online or by their MySpace of Facebook page, send them an informal request and see if they will help you get in touch with the handlers who can make it happen. On some occasions, the artist’s involvement might be just the recipe to get things done quickly, especially if they think your sample use is creative or novel.

Alternatives to Sampling

While there’s really no substitute for a substantial historical sample, there are musicians who are creating beats, sounds, samples, and musical elements that are available for low cost or even free of charge, especially for non-commercial projects.

Check out the communities at online collaboration sites like Indaba or MixMatchMusic to find possible sources for original samples that might fit the bill for what you are looking for. You should also check out the many music clips available through Copyright Commons, an informal collective of musicians, authors, poets and visual artists who offer various usage options for their works as an alternative to the “sample and pay” model.

Best of luck with your sampling and remember that you wouldn’t want someone profiting by using unauthorized samples of your original music, so play fair and practice safe sampling.

Disclaimer: This article is for information purposes only and does not purport to provide any type of legal advice. If you are unclear or have questions about any aspect of sampling or other music copyright issues, it is strongly recommended that you consult with an experienced attorney — or a music licensing professional, such as those referenced below.


 

Keith Hatschek is a regular contributor to Echoes and the author of two books on the music industry, Golden Moments: Recordings Secrets of the Pros and How to Get a Job in the Music Industry. He directs the Music Management program at University of the Pacific and plays guitar in his free time.

Story Links/Other Resources

Copyright 101: a handy online tutorial that will walk you through the basics of what a copyright is and how it works (courtesy of the Library at Brigham Young University)

Copyright Criminals: a 50-minute documentary that looks at the practice of sampling, how it is policed and whether or not the originators of some of the most sampled music actually receive any compensation from sample fees.

All You Need to Know About the Music Business by Donald S. Passman (highly recommended!)

Creative Commons: New Ways of Doing Music Business – a fascinating 36-page study of artists who are using the principles of Creative Commons licenses to forge new ways of making, collaborating and sharing music.

A summary of the landmark 1991 case between Biz Markie’s label and Gilbert O’Sullivan’s publishing company, including audio samples of the original track and the sampled version (Courtesy of UCLA Copyright infringement project)

Sample Clearance Companies

The Rights Workshop

Diamond Time Ltd. (press the buzzer on the right side of the screen to “enter” the offices)

Creative Clearance

Read more: Sampling Safely – A Primer to Avoiding Lawsuits — Echoes - Insight for Independent Artists http://blog.discmakers.com/2010/08/sampling-safely-a-primer-to-avoiding-lawsuits/#ixzz0wLfjka43