If you use samples in your commercially released music, you should get legal permission. The process of getting permission from the owners of the sampled music is referred to as "sample clearance." Failure to get the proper permission could lead to serious consequences: lawsuits or the inability to distribute your music to the public.
When Sample Clearance Is Required
In general, sample clearance is required only if you plan to make copies of your music and distribute the copies to the public.
Sample clearance is generally not required if:
- You are just using the sampled music at home.
- You are using the sample in live shows. This is because, usually, you are not making copies and the owner of the venue pays the blanket license fees to performing rights organizations such as Broadcast Music Incorporated (BMI) or American Society of Composers, Authors, and Publishers (ASCAP).
- You plan to distribute copies to the public but meet one of the following: (1) an average listener would not notice the similarities between your end product and the sample, or (2) your use of the sample falls under the "fair use" doctrine. For more information on these, see "Defending a Lack of Sample Clearance," below.
Operating Without Sample Clearance
Many artists releasing their own recordings can't obtain clearances -- either because they can't get the music publisher to respond to their phone calls or because they can't afford the fees.
What is the risk? Using a sample without clearance is always risky. However, as a practical matter, if you only sell recordings at shows and don't make more than one thousand copies, your risk is reduced. The owner of the source recording will be unlikely to learn of your samples. However, if your recording becomes popular at clubs or on the radio, or if a major label wants to pick it up, you'll have to deal with sample clearance.
Reducing the risks. If you use an uncleared sample, you can lower your risks by:
- making it unrecognizable
- not using the sample as the groove or hook
- burying it in the mix, and
- not using the title of the source music in the title of your song.
Defending a Lack of Sample Clearance
If you decide to use samples without clearance, you might be in the clear in certain situations. Under the copyright law, you don't have to obtain sample clearance if:
Your Sample Use is Not Infringing
If you alter a sample so that an average listener cannot hear any substantial similarities between your work and the sample, there's no violation of the law.
Your Use is a Fair Use
What is fair use? Fair use is the right to copy a portion of a copyrighted work without permission because your use is for a limited purpose, such as for educational use in a classroom or to comment upon, criticize, or parody the work being sampled.
Factors in determining fair use. Generally, when reviewing fair use questions, courts look for three things:
- You did not take a substantial amount of the original work.
- You transformed the material in some way.
- You did not cause significant financial harm to the copyright owner.
Don't believe the widespread myth that "less than two seconds is fair use." It's not true. Also, some courts apply this fair use rule only to the musical composition copyright, not the sound recording copyright. For example, one judge ruled that any musical sampling violated the sound recording copyright.
You can use the above arguments in order to defend yourself against a lawsuit for sampling without permission. The problem: You won't know for sure which way the judge will rule. And, most likely you'll have to hire an attorney to represent you in court
When Possible, Seek Permission
You'll be on safer legal ground if you seek permission, especially if you have a record contract that puts the burden of sample clearance on your shoulders. Such contracts usually contain an indemnity clause -- which means that if you and the record company are sued, you must pay the record company's legal costs. Ouch!
Note that when you sample music from a pop recording, you need two clearances:
- one from the copyright owner of the song, who is usually a music publisher, and
- one from the copyright owner of the master tapes, which is usually a record company.
To learn how to get the proper sample clearance, see How to Obtain Sample Clearance.
There's an extra wrinkle if you use a sample for purposes of selling or endorsing a product (for example in a Volkswagen ad), and the sampled artist is identifiable. In cases like this, you also need to get the source artist's consent. That's because the ad creates the impression of an endorsement. Without the consent, the source artist could sue for what is known as the violation of the "right of publicity." (The same would be true if you imitated the source artist's voice without sampling it.) So when you use a sample for an advertising agency or other commercial client, be aware that a third type of clearance or "release" may be necessary.
Roadblocks for Small Labels
Nowadays, there are significant roadblocks for small independent labels who want to acquire sample clearance. For example:
- Some owners of source music won't deal with independent or unsigned artists. "A lot of times if it's self-released, we say come back when you have a deal," says a sampling rep at one major music publisher.
- Often the copyright owners will want to hear a recording that shows how much of the source you intend to use and how you intend to use it. That means you have to do your recording first, without permission. If you then can't get permission, a lot of hard work will have gone to waste.
- Many small labels cannot afford the steep sample clearance rates. While there are no standard fees, the music publisher usually wants:
- an up-front "advance" payment (which could be anywhere between $250 and $5,000), and
- a percentage of the song income (usually between 15% and 50%).
The owner of the master recording will want:
- an up-front payment (usually at least $1,000), and
- a "rollover." A rollover is a payment that's made when a certain number of copies have been sold.
Sometimes, instead of a rollover, the owner of the master will ask for a portion of future record royalties (although sampling consultants advise against this practice).
Pre-Cleared Sample Discs
Sample CDs -- recordings that contain sounds and riffs specifically sold to be used in samplers -- can be a good alternative for small labels. Most sample discs are "pre-cleared," which means that by buying the disc, you're automatically granted permission for music usage without the payment of any further fees.
However, the permitted use of pre-cleared samples may vary from one disc to another. Don't assume you can use the sample in whatever way you like. Review the documentation that comes with the CD for any license information. Most sample disc makers grant the user a "nonexclusive license" to use the samples --which means you, and everyone else, have permission to use the music. However, with a sample CD you don't buy the right to redistribute the samples, only the right to use them in musical works.
If you find that your purchase of the disc doesn't grant the rights you need, contact the soundware manufacturer to see if you're eligible for a refund.
For more information, see Rich Stim's Music Law: How to Run Your Band's Business (Nolo), a comprehensive guide to all the legal issues your band may face.