Sampling is now an established musical practice, although it still generates strong legal debate. The purpose of this article is to provide practical advice for musicians considering incorporating samples into their work.
The first step is to understand the relevant copyright issues. There are generally three copyrights in a musical recording:
- Copyright in the musical work. This is generally owned by the musician who composed the song, or their music publisher;
- Copyright in any lyrics. This may or may not be owned by the same person who owns the copyright in the musical works; and
- Copyright in the sound recording of the musical work. This is generally owned by the person or company who paid for the recording, often the record company that released the sound recording.
Copyright means that the owner has a bundle of exclusive rights, including the right to make reproductions of all, or a substantial part, of that musical work, lyric or sound recording. This means that if you copy, without permission, a ‘substantial part’ of a musical work, lyric or sound recording copyright in which is owned by someone else, you have infringed that person’s copyright.
What is a ‘substantial part’? Can it be a short sample of a few notes? This is the $64 million question, and the aspect of sampling that generates the most heat and light amongst lawyers. A rough rule is that if the sample is something that is recognisable, and it is appealing enough for you to want to use, it is probably substantial enough to attract copyright protection. The length of sample is not necessarily relevant – it is quality that matters, not quantity.
Interestingly, there is not much case law on this point as most allegations of copyright infringement through sampling are settled by negotiation, which often involves the payment of a royalty to the owner of the sampled work. Generally record companies are nervous about taking these matters to court because of cost and uncertainty, because they do not want the court to set an unfavourable precedent, and because they may have many artists themselves who use samples.
What should you do?
If you want to use a sample in a song you may need to get that sample cleared. This means contacting the relevant copyright owner and requesting a licence (permission) from them to allow you to use the sample.
You will need to make your own judgment according to the circumstances, but the factors you will need to consider in deciding when permission is required are the distinctiveness of the sample, the prominence of your use of the sample, and the extent of your use. Obviously, greater caution is required for a global release, than if you are getting 500 copies made to sell at pub gigs, even though the copyright issues are the same.
Some samplists record cover versions of songs as a means of avoiding the clearance procedures. If a song has been previously released in Australia you can make a cover version of it, provided that you give the requisite prior notice to the copyright owner and pay the statutory royalty rate of 6.25% of the retail selling price (or a proportion of that royalty if there a number of cover versions on the CD). This right is conditional upon you not debasing the original work.
If you are dealing with a record company, they always insist on a warranty that your recordings will not infringe anyone else’s copyright, and an indemnity from you stating that you will be responsible for any losses they may suffer if you breach your warranty. Sometimes you can negotiate with the record company so that they will pay the costs of sample clearances (although these costs will generally be recouped by the record company from your future royalties).
When should you seek permission? It is better to do it at a time when you can remove the sample if you can’t reach agreement with the copyright owner. If the record has already been released, and the copyright holder realises they have got you over a barrel, you can expect to pay accordingly. And there is also that old music lawyers’ saying – “first the hit, then the writ”.
On the other hand, your request will alert the other party to your use of the sample when it might have otherwise gone unnoticed. If they refuse to grant you a licence, and you use the sample anyway, this may go against you later when you may wish to argue that a clearance was not necessary as the sample was not substantial. Again, you will need to make your own judgment according to the circumstances.
Securing a licence
The first step is to determine who the relevant copyright owner is. If you use a sample of a recording you will need to obtain permission of the owners of the musical work, the lyrics (if relevant) and the sound recording. If you re-record part of the musical work yourself you will not need to clear this with the owner of the sound recording. Remember that you may be dealing with two separate parties, generally a record company and a music publisher, in relation to the one sample.
Organisations such as ARIA and AMCOS may be able to assist you in tracking down the relevant parties. There are also a number of US firms, such as Sample Clearance Ltd, who can negotiate a licence for you. There is no standard fee in relation to sample licences. It is completely a matter for negotiation between the parties. Payment can be a flat fee, a royalty or a combination of these.
Generally you will require a non-exclusive licence, in perpetuity, throughout the world. If you wish to ensure that no-one else will be granted permission to use the sample, you may seek an exclusive licence, although this may be difficult to obtain.
It is very important to make sure that you are dealing with the right person – that is, that they are actually entitled to grant you the licence. It is essential that you must, as part of the licence, obtain a warranty from them that they own all copyright in the material that they are licensing to you and that the licence will not infringe the rights of any third party. They must also indemnify you against any losses that you might suffer as a result of their breach of this warranty. Finally, make sure you have got original copies of the paper work, signed by all parties, stored in a safe place for future reference if necessary.