The Daily Priapism

Getting Permission for Sampling Others' Work

by Attorney Richard Stim



Failure to get permission when you sample an outside source could lead to serious consequences.



If you use samples in your music you've probably gotten the message by now: Whenever you sample an outside source, you need to get legal permission for your usage, if you're planning to use the audio in your commercially released music. Failure to get the proper permission could lead to serious consequences. Not only could you get sued, but you might not be able to distribute your music to the public at all.

The process of getting permission from the owners of the sampled music is referred to as "sample clearance." When you sample music from a pop recording, you'll need two clearances: one from the copyright owner of the song, who is usually a music publisher, and the other from the copyright owner of the master tapes, which is usually a record company.
When Sample Clearance Is Required

In general, sample clearance is required only if you're planning to make copies of your music and distribute the copies to the public (it's not required for sampling at home).

Use of samples in live shows usually poses no problems either, since you're not making copies and the usage will be covered by the blanket license fees the owner of the venue pays to performing rights organizations such as Broadcast Music Incorporated (BMI) or American Society of Composers, Authors, and Publishers (ASCAP).

There are also a few instances when you may legally sample without permission even when you plan to distribute copies to the public: when you sample an inconsequential amount of material, when an average listener would not notice the similarities between your end product and the sample, and when your use of the sample falls under the "fair use" doctrine. For more information, see "Defending a Lack of Sample Clearance," below.
Typical Sample Clearance Fees

The costs for sample clearance are negotiable, and there are no standard fees. However, as a general rule, the music publisher usually wants an up-front "advance" payment (which could be anywhere between $250 and $5,000) plus a percentage of the song income (usually between 15% and 50%).

The owner of the master recording will also want an up-front payment (usually at least $1,000), plus 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 may want a portion of future record royalties (although sampling consultants advise against this practice).

Sample clearance rates have become so steep that it’s often difficult for small inde­pendent labels to acquire clearance. For example, one independent artist with a recording budget of $20,000 spent $9,000 on up-front payments for two samples. As one music attorney put it, “Today, you pretty much have to be associated with a major to pay the rates.”

Some owners of source music won't even deal with independent or unsigned artists because they don't sense enough of a financial return to bother. "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. In other words, the publisher or label may take a laissez faire attitude until you're making money.

Here's the Catch-22: In order to get a signed sample clearance agreement, you'll probably have to provide the copyright owners with a recording that shows how much of the source you intend to use, and how you intend to use it. So you'll likely be doing your recording first, with no permission. If you then find that you can't get permission, a lot of hard work will have gone to waste.
How to Obtain Sample Clearance

Here are some ways an independent artist can obtain sample clearance:

• Find the copyright owners. The first step in obtaining permission is to locate the copyright owner(s) of both the song and the master recording. The song and the master recording will often be owned by different entities, and you need permission from both of them. Since it's always easiest to find the music publisher, you should start there. The best way to locate a publisher is through performing rights orga­nizations, such as BMI or ASCAP. These groups collect money for radio, TV, and other public performances of songs. (In Canada, the performing rights organization is The Society of Composers, Authors, and Music Publishers of Canada (SOCAN).)

You can locate the key information on the Internet by visiting the performing rights society web sites (www.bmi.com, www.ascap.com, or www.socan.ca) and determining which organization controls rights for the source song. (You may also find help at the Harry Fox website at www.harryfox.com.)

Some detective work may be required. BMI's searchable database includes more than 20 entries, for instance, for songs titled "Yesterday." If you can't locate the song you're looking for online, try phoning the performing rights organizations and ask for the "song indexing" department. Once you have the publisher's name and address, phone or write the publisher to determine if they will grant clearance for the source music. Many publishers, unfortunately, have a policy not to grant permission for sampling.
Show Them the Money

If you're an independent or unsigned artist, you may be able to overcome the "never heard of you" syndrome by offering to make the payment up-front. If you show them that you can write the check to pay the advance, they'll be more inclined to deal with clearance.

If the publisher can't lead you to the owner of the master recording, you can check online record stores or the Phonolog directory at your local record shop to find the record company that is currently releasing the source music. Locating master owners may prove troublesome -- record companies may fold or sell their copyrights to other companies. In addition, rights in masters may revert to the original artists after a number of years. In that case, you may have to use the assistance of a clearance expert or sampling consultant.

• Use a clearance expert. For an hourly fee, sampling consultants can guide you through the clearance process. They will review the use of samples and advise the client of the expected budget and potential problems. Consultants can save you time and money because they're familiar with the procedures, costs, and key people who license rights at the major music publishing and record companies.
Have a Plan B

A common error is the failure to plan far enough ahead and to not have enough alternatives if a sample is rejected. Sometimes it can take months to get all of the approvals. Also, remember, many copyright owners (for example, the Beatles) have a no-sampling policy. If the sample request isn't approved, be prepared to replace the sample with something else.

• Recreate the sample. Some artists have avoided paying part of the sampling clearance fee by re-recording the sampled section. You will still need to seek permission from the music publisher, but not from the owner of the master recording. How does this work? Let's say you want to use a six-second sample from "Green Onions." Instead of sampling the original recording, you play the parts yourself and re-record the music to sound exactly like the original. In that case you have not infringed the master recording. (Due to a quirk in copyright law, you can only infringe a master recording if you actually copy it -- not if you imitate it). You will not need to seek permission from the master owner, and you don't need to pay any fees to the master owner.

• Find sample-friendly copyright owners. Some copyright owners are happy to clear samples -- so much so that they encourage the process. For example, copyright owners of songs by the Average White Band and the Gap Band have pro-actively sought to promote their music for sampling. Tommy Boy Records has also made it easy to acquire clearances.

• Contact the artist or songwriter directly. If you run into problems with a music publisher or owner of a master, you may have better luck contacting the artist directly. This works if the artist still has some say or control in what gets cleared. For example, Shirley Manson of Garbage wanted to use the line, "You're the talk of the town," at the end of a song. Lawyers for the band ordered her to drop it, but Shirley called up Chrissie Hynde, who sent the following letter to Garbage's attorneys: "I, Chrissie Hynde, hereby allow the rock band Garbage to sample my songs, my words, and indeed my very ass."
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. Using a sample without clearance is always risky.

If you are using an uncleared sample, you can lower your risks by making it unrecognizable, by not using the sample as the groove or hook, and by burying it in the mix. And of course, don't use the title of the source music in the title of your song.

As a practical matter, if you're only selling recordings at shows and don't expect to press more than 1,000 copies of a record, you run less risk for uncleared samples, because it's unlikely that the owner of the source recording will ever 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 definitely have to deal with sample clearance.
Defending a Lack of Sample Clearance

In the event that you intend to proceed without clearance, you should be familiar with some legal principles. Under the copyright law, you may be in the clear in the following situations:

If your use of the sample isn't considered infringing. If you altered a sample so that an average listener comparing the two works (your composition and the source) can't hear any substantial similarities, then there's no violation of the law. For example, a court determined that Run DMC's use of a drum sample from the 1973 Honey Drippers recording of "Impeach the President" was not infringing.

If your use of the sample is inconsequential. When the Beastie Boys recorded the song, “Pass the Mic,” they repeated a six-second sample from a song entitled “Choir” from an album by the award-winning flautist James Newton, Jr. The sample consisted of a three-note pattern: C, D-flat, C. Newton simultaneously sang and played these notes, a method known as vocalization. The Beastie Boys obtained permission to sample from the owner of the sound recording copyright (the record company) but not from Newton, the owner of the musical composition copyright. Newton, sued, and in 2002, a federal judge ruled that the three-note pattern from “Choir” was not, by itself, a protectible composition and that permission from Newton was not necessary. In other words, the three-note pattern, even though it included Newton’s rare vocalization skills, was not original enough to merit a payment and it was labeled “de minimis” (too small to matter). Newton v. Diamond, 204 F. Supp. 2d 1244, (N.D. Cal. 2002).

Note that according to a Sixth Circuit ruling (Bridgeport Music Inc. v. Dimension Films, No. 02-6251 (6th Cir. 2004)), this "de minimis" argument may apply only to musical copyrights, not sound recording copyrights. In the Bridgeport case, the appeals court held that using any identifiable musical sound recording segment without permission -- even as small as two seconds -- was a violation of copyright law.

If your use of the sample qualifies as a 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. For example, the rap group 2 Live Crew's recreation of the musical tag and the opening lyric line from Roy Orbison's "Oh Pretty Woman" was considered to be a fair use because it was limited (they only used the riff once) and it was for purposes of parody.

There's a widespread myth in the sampling community that "less than two seconds is fair use." Don't believe it. What a judge and jury will feel is fair use depends on a number of factors other than the length of the sample. Generally, when reviewing fair use questions, courts are looking 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.

Also, some courts only apply this fair use rule to the musical composition copyright, not the sound recording copyright.

In principle, it's good to know these defenses, but the obvious difficulty with all of them is that they are defenses. The time you'll use them is when someone is coming after you. There is no predictable way to guarantee that you'll win your court case based on these defenses (assuming you can even afford to hire attorneys to fight the case).

You'll find yourself on safer legal ground if you seek permission. This is especially true if you're signed to a record label and your record contract puts the burden of sample clearance on your shoulders. Your contract probably contains an indemnity clause, which means that if you and the record company are sued, you must pay the record company's legal costs. Ouch!
Publicity Releases

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.
Pre-Cleared Sample Discs

What about sample CDs -- recordings that contain sounds and riffs specifically sold to be used in samplers? 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 companies that makes sample discs grant the user a "nonexclusive license" to use the samples. A "license" is a grant of permission to do something (that is, use the sample in your composition). "Nonexclusive" means that you're not the only person who can use the samples. All buyers of these sample discs share the right to use them. You're not buying the right to redistribute the samples, however, 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.

• Keywords:
• sampling
 
• clearance