♫ Sampling♫
“Thou Shall Not Steal”
In this section, we will attempt to provide a clear definition of sampling, the rules, laws, and issues surrounding the business of sampling someone else’s music. Also, included are some general instructions on how to correctly clear a sample. I have broken this section up in three Major sections; Red light, Yellow light and Green light. As you read you will understand these sections better.
Red Light: Stop And Read Carefully
First let me provide my interpretation of the definition of sampling in the legal term.
Sampling is the recording of a small section, or “sample”, of an existing piece of music.
Legal issues arise, partly because only the copyright owners of the work can make or authorize changes to the original work. Sampling without permission violates two copyright infringements; the Sound Recording copyright or SR form (usually owned by the Record Company) and the copyright of the composition itself (usually owned by the songwriter or the Publishing Company) the PA form.
You need to obtain the permission of the copyright owners before sampling the original song or master. The industry term for securing such authorization is commonly known as clearing the sample.
It is never ok to sample any part of a record without permission. A sample of 1 or 2 notes that you might think ok to use, the copyright owner might not. Even though the price tag of legally clearing samples is mostly always charged back to the artist through advances, recording budgets and or future royalties, it is still never OK for an artist or anyone to use a sample without the proper permission.
Consequences
Illegal sampling can carry tremendous financial penalties. Most contracts pertaining to the music industry have with in them provisions called “Warranties”, “Indemnifications” and “Represent-ations”. These provisions most always encompass statements to the affect of; you have created or have obtained the proper and legal permission to use all the music submitted under this agreement. They will usually also basically say that in the event of any subsequent legal action you will reimburse the company for all incurred cost or losses caused by any such actions. These same provisions are almost always included in all contracts throughout the entertainment and distribution world. The Record Company has these provisions with the Artist, the Distributors with the Record Companies, the Retailers with the Distributors, etc.
With that said, this in no way exempts you as a company from your basic responsibilities in doing your due diligence. Do not solely depend on an artist’s honesty or basic attention to these matters; make it your responsibility to find out! I would not depend on charge-backs to my artists; there might not be anything to charge-back from. Unauthorized sampling can lead to tremendous losses in the way of; liens, cease-and-desists, recalls, injunctions, fines, fees, lost of owner-ship, just to name a few, you get the point.
Yellow Light
Sampling is a Major part of doing business today in the industry. From ring-tones to jingles, from Hip Hop to Rock has help to make the business of sampling a very viable income stream for those who own the rights.
DJ’s scratching, sampling a guitar, a drum pattern, a voice, or a small part of a track and looping it has created some of today’s biggest hits. Sampling by Hip Hop and Rap Artist pumped new blood and new money into the music business when it was viewed to be in serious crisis. Rock -groups sample, Pop acts sample, Gospel artist sample, R&B and other genres of music sample and are sampled.
Green Light
If you desire to use a sample of someone’s music legally, you must get permission from the copyright owner in writing. As stated before, the copyright owner is usually a publishing company or Record Label. It is necessary to obtain permission from both the owner of the sound recording and the copyright owner of the composition. The fee for a license to use a sample can vary from publisher to publisher as these fees are sometimes negotiable. The fee can depend on how long of a sample is being used.
