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Wednesday
Oct122011

Sampling - a cautionary tale

sample-clearance

I used to be a music lawyer and I was a bit of an authority (for a while) on sampling and sample clearance in the early ‘90’s.

Then I ran a bunch of dance labels and worked with a lot of electronic artists.

I have cleared a lot of samples but I have released way more records with samples in them that we didn’t bother to clear.

Why?

Because we thought that no-one would notice that we’d used their music - these were generally small specialist underground records - and that if they did, we would be able to agree something after the event, if the need ever arose.

The reality is that it was too much bother and too expensive to try and clear a sample of an obscure and hard to find piece of music or of a snippet of a big successful tune when you knew that your record was going to sell just a few thousand copies - i.e. we felt at the time that the risk was well worth it. And hundreds of thousands of records have been released with uncleared samples in them.

Will I get sued for using a sample?

There are very, very few cases where someone who samples a record ends up in court - and there’s two reasons for that.

If your record containing an uncleared sample goes from being an underground momentary thing of interest to a limited audience to about to become a radio/commercial hit of any scale, you will quickly clear or remove/replace the offending sample(s). Well, you will, or the indie or major label that have come to sign your record will do it for you.

It’s when a record appears on everyone’s radar that it becomes time to clear it. At that point, if you don’t, you’re going to be in trouble. Remember the adage ‘“Where there’s a hit there’s a writ” - it is the absolute truth.

Secondly, if your record contains a sample and you didn’t clear it, you are infringing the original owner’s copyright - and they have you ‘bang to rights’. If they do discover your small scale release and if they care enough to contact you and point out your infringement, then in most cases they can see that going to court is pointless as you, the sampler, won’t have any money worth suing you for!

So, generally they approach the sampler and point this fact out and you work out a deal. Hence, court case avoided.

What is sample clearance?

When you sample another person’s music you are reproducing two different copyrights - the recording itself but also the underlying musical work (the song - that part which a music publisher deals with, rather than a record label).Leiber & Stoller go over a song with Elvis Presley

For those that find that a difficult distinction, think of the days when all pop stars sang songs written by songwriters. Think Elvis and Leiber & Stoller.

Leiber & Stoller create the copyright which is the song - it can be written on sheet music before it is ever performed and recorded. Then, when it is performed by Elvis, he (or his record company) have created another different copyright in that recording of that performance. Every new and different recording is a new copyright.

Hopefully you can see that these two copyrights give rise to two income streams - one for the song and one for the recording.

Leiber & Stoller get paid for every radio or live performance of the song (whether that is a spin of the recording or Elvis singing live) and they get paid for every record made (that’s called a mechanical royalty and is paid by the record company - more on that another day as that get’s confusing!). Elvis only gets paid for every record made and sold - that’s the record royalty. (Just to confuse you some more, many countries, but not the US, do have an airplay royalty for the recording as well).

So when you sample a piece of that recording, you are also sampling the underlying song and you need to get the permission (or ‘clearance’) of all the owners of the copyright in the recording and the song. That means contacting the record company that owns the recording you have sampled but also all the songwriters and/or their music publishers.

Generally the record company will take a fee (perhaps tens of thousands of dollars) and a per unit royalty for every record sold and they may well impose limitations on the use. The songwriters and music publishers will usually take a percentage share in your new song that has sampled theirs. The amounts being down to negotiation.

The thing is, they have you over a barrel.Bitter Sweet Symphony’ was one big sample Once you have sampled their work and told them, they can ask for whatever they want.

The Verve gave 100% of the song ‘Bitter Sweet Symphony’ to Jagger and Richards as it sampled a version of one of their songs. Interestingly the recording that they sampled wasn’t the Stones, but an orchestral version by someone else. Read more about that case here.

Once you have the agreement of the copyright owners of the song and recording, you’re set.

This existence of two copyrights also explains the very common misconception amongst musicians that they do not need to worry about sample clearance if they ‘re-record’ a sample. True - if you re-record the sample that you lifted from someone else’s record, you don’t need to clear the recording, because you have made a new one and you own the copyright in that. But, your new recording still reproduces the underlying song and therefore still infringes that unless you clear it. Re-recording deals with half the issue, but don’t forget the other half.

How much is too much?

Usually, any little bit is too much.

In fact, the law and exactly how it is applied depends on where in the world you are. There are treaties between countries that aim to apply essentially the same copyright laws throughout the world but there are specific differences.

In very general terms you are infringing the rights of another person’s copyright if you ‘substantially reproduce’ their work. And the definition of what counts as being ‘substantial’ is usually not set out in a country’s relevant copyright law (the Acts or Statutes) but is based on interpretation by judges in cases that go to trial. Then future cases refer back to the decisions in prior trials - this is what is called ‘case law’.

However, since most cases don’t go to trial and get settled or negotiated long before a judge gets to deliberate, there are very few cases that a judge can refer to for guidance. Those few that have gone all the way in the UK and US have led lawyers to err very heavily on the side of caution and that is upheld by the way and the levels at which all involved negotiate clearances on a day to day basis.

In other words, the person being sampled whose permission you are seeking has all the cards.

If you have sampled a single recognisable note, this may well be seen to be ‘substantial’. If any reasonable person listening to your new record could tell that you have used a sample, then it is almost certainly a substantial use and legally requires clearing.

But you can take the drums only from a track and that’s fine, right? Err, no. Probably not.

If you have sampled a recording you fall at the first fence since you cannot deny that those drums (or whatever part you’ve taken) come from the other person’s recording. Given that admission, even the smallest section is probably enough to require permission. I can’t be sure, as it takes a final judgement in a court case to get the definitive view, but should you risk it?

In the real world, if you’re a small-time artist, you may well do just that. And I wouldn’t blame you.

As I said above, hundreds of thousands of records have been released without clearing samples and almost all ‘get away with it’ - particularly so if the release is small-scale and no significant money is made.

But, it is extremely important to note that if you get sued the amount of a claim by the person you have sampled, in most countries, need NOT be related to how much you made from releasing your infringing record.

The decision by a judge to award damages to the person you sampled is usually equated to the loss they have suffered rather than the money you made. And that loss can be based on anything that they can argue. Sure, often it does refer to the amount you made from releasing your infringing record, but not always.

The cautionary tale

So, this is where you get to see what happens when it all goes wong!

At the end of last week a Danish court case concluded that two musicians who had made a record in 2003 by using a sample had infringed the rights of a songwriter and a record company and ordered them to pay damages approaching $150,000 - way more than they ever made from the record.

This is enough to finish their careers and affect them for the rest of their lives. Read all about the Djuma Soundsystem case here. This case could be reversed on appeal and, depending on where you live, it is unlikely to be used as ‘case law’ in your country and therefore it won’t lead to a swathe of sampling cases against the little guy.

But it is a reminder that any one of the hundreds of thousands of records that have been released (or are going to be released in the future) with uncleared samples and which the artists think are going to be small scale successes, could lead to you being sued.

Should you worry? No, I don’t think you should, but you should be aware.

I think the Danish case is unlikely to be upheld and the guys were very unlucky that it didn’t get negotiated to a settlement that they could afford before going to trial. In almost all cases this would have been resolved before going to court.

And, of course, if your release is likely to be a commercial success, do deal with any sample issues before release. Success brings attention and people will then sue and they will push hard for a very stiff deal if you ignored their samples! Just remember that if you sample a record then the basic position is that you are infringing the rights of two sets of people and that could come back and bite you in the ass.

Sample clearance is the answer but we all know that in the real world that’s not always going to happen.

Hopefully, forewarned is forearmed!

This article originally appeared on our music marketing blog where we write on any topic that takes our fancy and where our experience may help DIY or indie musicians.

You can find us on Twitter where we pass on daily tips and also on Facebook.

 

Reader Comments (14)

I just wanted to leave this comment to point out that a few people on our site felt that this post ignored the rights of the artist who has been sampled and that all samples should be cleared.

I take the point but wrote this article to try to simply tell musicians what the issues are with sampling so they could understand the risks they are exposing themselves to if they do it and don't clear the samples.

I am not advocating stealing from other artists, which is how some see sampling.

But nor am I saying it's wrong.

If you do it, you need to understand what your legal position is.

Perhaps I should've pointed out the effect on the artist who has been sampled more than I did but very often a sampler would clear a sample if they could contact the person they've sampled and strike a deal.

Usually the people who don't clear samples would be ignored by most labels and publishers that they approach as a waste of time or they couldn't afford to if they were offered a clearance.

October 11 | Registered CommenterIan Clifford

Tell the truth, James Brown was old
'Til Eric and Rakim came out with 'I Got Soul'
Rap brings back old R&B
And if we would not, people could've forgot

October 12 | Unregistered CommenterRiley

Thanks for writing this. Most American's don't have a clue what copyright law means. And the proliferation of Rap and Pop songs on the radio that use samples, gives the public the impression that you are free to do anything with someone else's song. They are unaware of what goes on behind the scenes legally so to speak.

To me the best advice I would give any up and coming artist is don't sample. Learn how to create your own.

October 12 | Unregistered CommenterTJR

It's a shame there isn't a compulsory licensing scheme available for samples like we have for cover songs in the US.

October 12 | Unregistered Commenterscottandrew

I pretty much agree with all three of those comments.

A sample of an otherwise overlooked or forgotten record can reinvigorate the original artist's career - vis James Brown as you say - if the track that samples it is a hit. Unfortunately there are still cases where people do get screwed in that situation. Many hip hop hits still have uncleared samples!

TJR - funnily enough one of my clients is replacing a sample in a backing track today as the song (that they have demo'd but won't do final production on) is going to an established artist. They have the skills to do that and in this case the sample has been so altered and chopped as to not be an infringement if you took a broad view. Nonetheless keeping the original recording would be too risky.

Learning how people made those records that you want to sample will undoubtedly increase your skills and probably your creativity.

Scottandrew - Yup, that would at least make a level playing field for all artists!

October 13 | Registered CommenterIan Clifford

Lest we not forget Vanilla Ice's plageurism of the bass part of David Bowie and Queen's "Under Pressure" on his hit !"Ice Ice Baby" where he wound up settling out of court to the tune of $4 Million buckeroos and crediting them on his future releases. At first, he adamantly denied that he lifted the sample, then years later, joked that he'd pulled it directly off ofnhis brother's Quen record.

October 15 | Unregistered Commenterfrankmclaughlim

Your "advice" that the risk of using uncleared samples is worth it as "you, the sampler, won't have any money worth suing (for)" is extremely dangerous. As you know, in the U.S., copyright infringement is a "strict liability" offense, meaning it does not matter what any party thought or knew about what the actual status of the copyrighted content was; if there is an infringement, that party is still liable. Your bad advice completely ignores the fact that not just you, the dead broke infringer, are liable, but ALL OTHER parties in the chain of infringement (labels, distributors, retailers - parties that DO have money) can be held jointly and severally liable for an unthinking infringer's actions. You would be a fool to put other such parties at risk and the bottom line is that you should not sample without clearing all applicable rights. That point is well-settled in every jurisdiction in America.

October 16 | Unregistered CommenterSound Advice

As you know, in the U.S., copyright infringement is a "strict liability" offense, meaning it does not matter what any party thought or knew about what the actual status of the copyrighted content was; if there is an infringement, that party is still liable.

October 18 | Unregistered CommenterDayna Staggs

Sound Advice & Dayna Staggs - I am not giving any 'advice' in this article. If you look at the first comment (which I left to further explain my article) you'll see that I sought to further clarify my point.

Since the piece is entitled 'a cautionary tale' I would've hoped that it could be read as exactly that.

I think I've made it clear that if you use uncleared samples you are liable, but part of my point is that hundreds of thousands do and never get sued.

I'm not saying it's right, I'm just trying to educate those who use samples that they are in danger.

I think the article makes that pretty clear.

October 18 | Registered CommenterIan Clifford

There is law, and there is ethics. We should act according to what we consider right, not just what we get can away with. Always put yourself on the other side of the issue, and answer honestly: how would you view the situation if your work were sampled without permission, used to make a profit without any remuneration to the original creator?

The Djuma Soundsystem track is great (especially the Trentemoller remix). The original sample source track is beautiful in itself (Atilla Engin's "Turkish Showbiz"). It's clear that the Djuma track could not exist without the sample; the sample is the hook and memorable part of the track, and what made it a hit. The original creators deserve to be paid.

- Versus

October 19 | Unregistered CommenterVersus

By the way, what is the legal status of bootlegs and mashups which are made, distributed for free, but not for profit? This seems to be a grey area of "transformative" work.

- Versus

October 19 | Unregistered CommenterVersus

I have a question about derivative sampling - meaning what if I "sample" a line from another song in my own song (me singing it of course). I'm assuming I would have to get some permission for that? I have a song that I wrote. I play guitar and sing on it. One of the lines I sing is a melody and lyrics from another song. I would like to record the song, sell and distribute it eventually. What would I do in this case?

October 20 | Unregistered CommenterALP

Hi Versus - I tried to address your first point when I added the first comment myself. I agree that the sample owners need to be paid. It's just that the truth is most artists, especially in dance music, sample and don't clear.

Not right but that's the way it is.

On your other point - there's no grey area. Mash-ups are completely illegal. They infringe the rights of those that they take chunks of music from - and blatantly.

There does seem to be an attitude by most whose work is used in that way to let them be, but be in no doubt that if they wanted to pursue a court action they would definitley win....every time.

And that applies whether the mash-up is made for free or for sale and the amount that it earns is irrelevant. The damages might bear some relation to that but they needn't.

It is quite possible that the maker of a mash-up could be sued, the amount of damages could easily bankrupt them and they might even be jailed in most countries where the copyright law makes infringement a criminal offence.

Make no mistake - this CAN happen.

October 20 | Registered CommenterIan Clifford

Alp - that would still be a reprodcution of part of the song you are copying and therefore you'll need to get the agreement of the writer and/or publisher of the original and they'll undoubtedly ask for a percentage.

Ian

October 20 | Registered CommenterIan Clifford

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