Over the past few months, i’ve received a lot of questions on the topic of sample clearance, and while I do have some limited experience in clearing samples, I thought i’d ask my friend Juan Lopez, a legal advisor at music & media law firm Avenant Law and co-founder of MusicLawContracts.com, whether he could share his expertise on sample clearance with you. Fortunately he said yes, and without further ado, here’s his nuggets of wisdom!
The key principles of sample clearance
- Sampling is a form of copying someone else’s music (sound recording and underlying composition)
- Only use a sample with permission of copyright owner.
- Copyright owner can consider licensing use and decide whether to grant the license or not and determine the fee. Copyright owner is entitled to refuse permission.
- You will be required to pay a fee and/or royalties and credit (mention) the original writers/ copyright owner from which the sample is taken as a condition of any licence.
- Music which was made or released within the last 50 years (life of copyright) will still be in copyright and can only be sampled with permission from the copyright owner of the recording.
- In addition, a license from the copyright owner of the underlying composition (music and words). A license for the composition will not be needed if you RE-RECORD the composition.
- Sampling will infringe copyright in the music and/or the sound recording, if a ‘substantial part’ of the original and used without permission. Sample considered ‘substantial’ by reference to quality rather than length.
Westbound Records and Bridgeport Music v No Limit Films (2004)
The case centred on the song 100 Miles and Runnin, which samples a three-note guitar riff from Get Off Your Ass and Jam by George Clinton and Funkadelic. The song was included in the 1998 movie I Got the Hook Up by No Limit Films In the two-second sample, the guitar pitch has been lowered, and the copied piece was “looped” and extended to 16 beats. The sample appears five times in the new song.
A US federal appeals court ruled that recording artists should licence every musical sample included in their work even minor, edited, unrecognisable snippets of music. The court posed the question “If you cannot pirate the whole sound recording, can you ‘lift’ or ‘sample’ something less than the whole?” The Court’s answer to this was NO; and the court added “Get a license or do not sample – we do not see this as stifling creativity in any significant way.”
How Not To Clear a Sample
- You cannot clear the underlying composition in a sample by re-recording the sample. If you choose to re-create the use, you still need the publishing clearance.
- Altering the sample (even to the point of making it unrecognisable) does not get you out of clearing it.
- Sampling a track which already cleared its samples doesn’t get you out of clearing them.
Sample Clearance FAQ
How much of a song can I use before I need clearance?
It doesn’t matter how long the sample is. It could be two seconds and you’d still have to clear it.
How do I approach a Record label or Publisher in regards to obtain a clearance?
Give information about your planned releases e.g. label the tune will be released on and how many copies pressed. Record company or publisher may say yes, ultimate decision is sometimes up to the musicians.
Sampling from a small label artist
A small record company may want a flat fee, known as a ‘buy-out’.
If you’ve sampled a relatively unknown tune and it’s quite a short release you might end up paying just around £500 but they may build in a condition that another fee is payable if you want to press more records.
Sampling from a large label artist
A larger label or bigger artist may want a royalty – usually 1 to 3 per cent.
They’ll probably want an advance against that – which, for a major artist it may be several thousand pounds. You may be able to reduce the royalty by paying a larger advance or reduce the advance by offering a larger royalty.
What difference does it make if the of the sample is used little or a lot?
If the sample is extensive and underpins your tune to such an extent that the track won’t really work without it, you’re in a weak bargaining position. In such case, a Record company can demand a much higher royalty – as much as 50%.
How do you get clearance for published samples?
Publishing companies will typically want a royalty but not an advance. For light usage of a minor artist this can be less than 10%. For a larger artist it may be 50% or more – up to 100%.
How does sampling affect my royalties?
The royalties for samples will be deducted from your record sales share of royalties and publishing royalties. You may also have to give up some of your Performer’s Royalties to the people who performed on the record you sampled.
What if I cannot find the copyright owner?
Do not proceed with use until you have obtained clearance in writing from all copyright owners concerned and all clearance terms and conditions agreed. To proceed without all necessary clearances in place will equal breach of copyright.
Can I approach the band/writers directly?
Clearance must be sought and obtained from the copyright owners. In most cases this is the record label and publisher.
How long will it take to get an answer to my request?
Publishers will often discuss the clearance request with writers of the composition that has been used. If writers are recording, touring or working on other projects the clearance can be delayed.
If the composition that you wish to use is not U.K copyright, the publisher may need to liaise with a foreign publisher who in turn may need to liaise with the writers.
What can I do if my request is denied?
You must remove the sampled/re-created use from your work. To proceed without all necessary clearances in place may well result in action being taken against you for breach of copyright.
Image Credit: thiscomerecords