When is sampling legal

In this article we breakdown the most common sampling queries. Whatever stage your career is at, it pays to know the legal implications of sampling. Sampling without permission infringes copyright in several ways. Firstly, it is a breach of copyright in the original sound recording. Secondly, it is a breach of copyright in the underlying music and, where applicable, lyrics and thirdly, it constitutes unauthorised use of one or more of the performances in the original work, such as a riff, hook or drum part.

Nor does it mean a judge will side with you if a case ever proceeds that far. Breakbeats, like the infamous Amen Break, have been sampled so many times that they sometimes feel as if they are part of a legitimate sample cannon. Certainly you have a far better chance of dropping beneath the legal radar than those who use samples as they are. However, if your disguised sample is identified then the ramifications for infringing copyright remain the same.

If you are deemed to have breached copyright then a judge can make a number of demands. You might be required to pay a significant — perhaps unreasonable — percentage of royalties to the copyright holder. In more extreme cases, an artist can be forced to withdraw a record from sale completely. Dre was also given an injunction preventing the continued sale of the record which by then had shifted more than , copies. No wonder lots of myths and misinformation get spread around this complicated issue.

One of those common myths is this: you can legally sample a copyrighted song without permission as long as the sample is shorter than 6 seconds, or 11 seconds, or 15 seconds…. Copyright is copyright. More people than ever before have access to affordable recording and sampling tools. So, could you just include some samples on your next album or single without clearing them?

But what happens if your track starts getting airplay or becomes a hit on YouTube? Do not believe the widespread myth that "less than two seconds is fair use. 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. 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. 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:. 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.

So, why would you sample a section of music? For one, it can cut down on production time. Time is of the essence in most recording situations these days, as more time in the studio generally means the need to spend more money. Plus, if you need to make a new beat, you must start from scratch. Two, a sample can evoke nostalgic feelings in listeners. This is beside the point if the sample is too old or not widely recognized.

And, in some cases, producers still use samples from songs that are lesser known because it nevertheless evokes the right mood or feelings for the song. Three, duplicating the feel of a specific segment of music can be tricky. Generally, samples contain two copyrighted works — the underlying composition and the recording.

The underlying composition refers to the song itself, which is owned by the songwriter or publisher. The recording is owned by the artist or record label. As already noted, you need permission from both the owner of the composition and the recording.

Once approved, you will need to enter into a sampling agreement with the copyright owners. Fortunately, this is not hard to get, as you can obtain the license through Harry Fox Agency.