Like all artists, musicians will sometimes borrow material from one another, referencing or using pieces of another's music in their own. The complication, however, is that copyright law gives musicians exclusive rights over their work.
If you use "samples" of other people's music in your own music, you should first obtain written permission, so as to avoid allegations of copyright infringement. This is particularly true if you intend to release your music commercially and profit from the sales.
The process of obtaining permission from the owners of the sampled music is referred to as "sample clearance." Failure to obtain the proper permission could lead to serious consequences, including lawsuits for money damages or the inability to distribute your music to the public. As a musician, you obviously will want to avoid both outcomes. Fortunately, the sample clearance process can be fairly straightforward, depending on the music and artists involved.
Sample clearance is typically required only if you plan to make copies of your music and distribute the copies to the public. If you are just playing for your friends in a small group, you likely do not need to worry about copyright litigation from a large music studio.
Sample clearance is ordinarily not required if:
Many artists releasing their own recordings cannot obtain clearances, either because they cannot get the music publisher to respond to their calls and requests or because they cannot afford the fees.
What is the risk of going without a clearance? Using a music sample without clearance is always risky. However, as a practical matter, if you sell recordings only at shows and do not make more than 1,000 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 will have to deal with sample clearance, and might face consequences for your initial failure to do so.
Reducing the risks. If you do use an uncleared sample, you can reduce your risks by:
If you decide to use samples without clearance, you might be in the clear in certain situations. Under U.S. copyright law, you do not have to obtain sample clearance if your sample is so altered that it does not infringe on the original, or your use is a fair one.
If you alter a sample so that an average listener cannot hear any substantial similarities between your work and the sample, there is no violation of the law. Often, musicians can be inspired by a tune, but make it so radically different from the original that the original artists (and the public) would not see the tunes as the same.
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. When reviewing fair use questions, courts primarily look for three factors:
Do not believe the widespread myth that "less than two seconds is fair use." There is no "magic number" like this. Also, some courts apply a 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 to defend yourself against a lawsuit for sampling without permission. The problem: You will not know for sure which way the judge will rule. And, most likely you will have to hire an attorney to represent you in court.
You are always on safer legal ground if you obtain 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:
To learn how to get the proper sample clearance, see How to Obtain Sample Clearance for Use in One's Music.
Unfortunately, there is 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 may create 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.
Nowadays, there are significant roadblocks for small independent labels who want to acquire sample clearance. For example:
Many small labels cannot afford the steep sample clearance rates. While there are no standard fees, the music publisher usually require:
The owner of the master recording will want:
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).
Sample CDs or digital albums, recordings that contain sounds and riffs specifically sold to be used in samplers, can be a helpful alternative for small labels that lack significant financial resources. Most sample discs are "pre-cleared," which means that by buying the disc, you are automatically granted permission to use the music without paying any further fees.
However, the permitted use of pre-cleared samples may vary from one disc to another. Do not 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 do not buy the right to redistribute the samples, only the right to use them in musical works.
If it appears that your purchase of the disc does not grant the rights you need, contact the soundware manufacturer. You might be eligible for a refund. Or, the manufacturer should at least be able to clarify the rights to which you are entitled, if there's any ambiguity.
In short, the sample clearance process can be a hurdle for many newer musicians. But there are many resources to help you ensure that you are not violating any copyright laws. 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.
Need a lawyer? Start here.