Are you a music artist, musician, or producer?
Do you use samples in your music?
Do you want to avoid facing serious legal trouble?
Welcome to this guide “How to Get Sample Clearance: How to Ask Permission to Sample a Song”
My name is Sam Mollaei, Esq. and I’m a music lawyer. Over the past 5 years, I have helped numerous music artists, just like you, get found and make a career doing what they love — which is making music.
I have been a producer and musician for the last 15 years and I live and breath music just as much as you. I frequently give lectures on music law so I decided to combine all of my teachings and share my secrets in this guide.
Sampling music is the act of reusing a portion of another song. Many music artists sample other music but it’s illegal and a serious issue to ignore to get permission from the original owner of the songs.
By the end of this cguide, you will learn how to ask permission to sample a song on your own without having having a representative do it for you.
The world of cover songs, sample clearances, mechanical licenses, and music law has complex rules and regulations for the casual music creator.
However, one thing always holds true: If you ever have a question — don’t be afraid to ask! That’s why I encourage you to post your questions on the course discussion board.
With that being said, let’s get started!
Introduction to Sample Clearance
So you made an awesome track using a sample from another piece of music by another artist, and want to shop it to labels to release it for profit – what do you do next?
Artists like Vanilla Ice, Two Live Crew, Bashmore, and Baauer have all faced allegations of unlawful sampling with some cases even going to the US Supreme Court. As a small time or professional producer how do you approach sampling and when do you decide that it is in your best interest to get sample clearance?
To sample or not to sample?
This is the question many a DJ, producer, and songwriter must grapple with on an almost daily basis. Sampling is fun, and in the era of the ubiquitous digital audio workstation, very easy to do. But is it always a clever move from a legal and business perspective?
In this guide we’ll consider how to go about sampling within the law, how to avoid getting sued, and consider some of the pitfalls of falling foul of copyright law.
Sampling music is the act of reusing a portion of another sound recording. Whether unique percussion combinations or distinguishable guitar riffs, many musicians sample other’s music. Without obtaining permission from the original musician or owner of the rights to the music, many of these musicians face legal trouble, such as inunctions to not use the sample or even money damages.
If you’re a hip hop artist or producer, odds are you either have or will be faced with the issue of using a sample in your music. The biggest problem with this is that most people wait until their music project is completed before they start dealing with the legal aspects associated with clearing those samples.
If you plan to use samples in your musical compositions, you may need to get permission to avoid legal trouble. Unfortunately, getting permission is not always easy. Here are some ways an independent artist can obtain sample clearance.
The process of getting permission from the owners of the sampled music is referred to as “sample clearance.”
Failure to get the proper permission could lead to serious consequences: lawsuits or the inability to distribute your music to the public.
Many clients ask about whether or not they can “sample” from an existing sound recording and how much is permissible to use, and whether or not they need permission to embody a sample in their new sound recording. Learn the do’s and don’ts of sampling in this course.
Using someone else’s recording in your music without permission can lead to disaster. We explain the ins and outs of copyright law, and guide you through the process of clearing your samples.
The Golden Rule of Licensing: if you don’t own or control it, you likely need a license to use it.
There are a few exceptions (such as public domain compositions), though the golden rule is a common sense guideline that can help determine when licenses are needed.
So I’ll begin to walk you through the proper steps for getting samples cleared…
What is Sampling & Sample Clearance?
So before we get started, we need to explain what sampling and sample clearance are…
What is Sampling?
Sampling involves taking an existing piece of copyrighted music and combining it with another to create a new work. In other words, sampling is using or incorporating someone else’s sound recording with your own.
In today’s digital world, sampling is the practice of digitally copying or transferring parts of a pre-existing song to make a new song. For instance, an artist will take a piece of a pre-existing song and use that piece to create a new recording.
Sampling exists mostly in electronic dance music, rap, hip-hop, or dance records. A producer may sample any element in a song — a string, bass line, or even a drum loop. Whether unique percussion combinations or distinguishable guitar riffs, many musicians sample other’s music.
A prime example of a successfully sampled song is the huge MC Hammer hit single, “U Can’t Touch This,” which was a sample of Rick James’ prior hit, “Super Freak.”
What is Sample Clearance?
Sample Clearance is the process of getting permission from the owners of the sampled song.
When sampling occurs, two copyrights are involved:
- The copyright in the sound recording
- The copyright in the underlying musical composition embodied in such recording
For example, if you want to sample the synth line from Calvin Harris’ “Outside”, you would need to secure licenses from the record label (for the sound recording), as well as the music publisher (for the underlying musical composition). We’ll go more in depth about these two aspects of copyright later in the course.
Without getting permission from the original artist or owner of the rights to the music, you can face serious legal trouble, such as injunctions to not use the sample or even money damages.
Sample clearance requires directly negotiating with all parties. The cost can range depending on the sample being used. Without licensing from the appropriate copyright owners, you are liable for copyright infringement and can be sued for substantial sums of money.
Obtaining permission for music sampling can be tedious, but will save you from legal action you could face if you sample without permission.
It seems most music these days, especially electronic dance music, is sampled from other songs. So it’s really important to know how to get sample clearance.
Why is Sample Clearance Necessary?
The creative act of sampling is nothing new.
Sample clearance is essential in avoiding two instances of copyright infringement, firstly against the original creator and secondly the content owner. The use of samples can be subtle or make up the hook of a track, so it is a way of acknowledging those responsible and paying them accordingly.
But what’s the problem with sampling?
First of all, failure to get proper sample clearance could lead to serious consequences: lawsuits or the inability to distribute your music to the public.
The legal headache, as far as the producer, artist or songwriter is concerned, comes from using another person’s original sound recording without prior permission, since this is clearly copyright infringement.
The act of sampling without permission infringes copyright in four distinct ways:
- First, it’s a breach of copyright in the original sound recording.
- Second, it’s a breach of copyright in the underlying music and lyrics,
- Third, it constitutes an unauthorized use of one or more of the performances in the original work, such as a guitar riff, vocal hook, or drum part.
- Lastly, the moral rights of the original artist may be infringed, if sampling is undertaken in a way that the artist objects to, or if the artist isn’t credited.
So to summarize, in order to prevent possible lawsuits or the inability to distribute your music to the public, sample clearance is necessary, along with other crucial but necessary reasons why it’s important to get permission to use a sample.
When is Sample Clearance Required?
In general, sample clearance is required only if you plan to:
- Make copies of your music, or
- Distribute the copies to the public.
When is Sample Clearance NOT Required?
Sample clearance is generally NOT required if:
You are just using the sampled music at home. So if you’re a bedroom producer and you’re just making music sampling other artist’s music and just experimenting, you generally don’t need sample clearance.
Also, you generally don’t need sample clearance if you’re using the sample in live shows. This is because, usually, you are not making copies and the owner of the venue pays the blanket license fees to performing rights organizations such as Broadcast Music Incorporated (BMI) or American Society of Composers, Authors, and Publishers (ASCAP).
So there’s no copyright infringement if you’re using samples in your live shows. Live gigs present the simplest situation when it comes to copyright law as, in most cases, the venue looks after all of the legal aspects for you. So whether you’re using a playlist or playing your own compositions, there’s generally no issue with live performance.
And the last situation when sample clearance is generally not required is if you plan to distribute copies to the public but meet one of the following:
- An average listener would not notice the similarities between your end product and the sample, or
- Your use of the sample falls under the “fair use” doctrine. We’ll go into great detail of what the Fair Use doctrine entails and how you can sometimes use copyrighted samples in your music later in this course.
If you’re simply making music for your own entertainment in the privacy of your own home then you needn’t worry, but if you plan to release or perform your work publicly then it is advised to clear your samples, sooner rather than later.
What is Music Copyright?
Copyright is not just a form you fill out, it exists prior to that.
Songs are automatically considered copyrighted as long as they are original and in a tangible form. Original means what you think it means and that it can’t be identical or substantially similar to other songs.
Also, when a piece of song is put into a fixed form, (for example, if you export an audio file or if you post it on Soundcloud) copyright law protections technically kick in.
When you fill out the official forms and register your song – that’s when you get a presumption that you own the copyright to that work.
How Long Does Music Copyright Last?
Copyright lasts the life of the copyright holder plus 70 years.
If you are dealing with a larger label they will ask you if you are using samples and if they are cleared. Even if they don’t ask, in the contract it will state that you, the artist, are responsible and present to them a clear and free work. Also, if you are using a sample pack, check what the license says – especially if it involves vocals.
So in summary, a song is technically considered copyrighted as soon as you create it in a tangible way. That’s all you need to know at this point.
What is the “Fair Use” Doctrine of Copyright Law?
So you may have heard about Fair Use. But what does it mean exactly?
Fair Use is a defense to a claim of copyright infringement and it lays out situations in which you do not need to get the song owner’s permission to use his or her material.
In other words, Fair use means you can use existing, copyright content like a sample clip in new ways that provides value beyond the original.
When it comes to music, courts look for 4 factors when considering Fair Use:
- What is the purpose or context of the work? Is it for profit or is it for a non-commercial non-profit use? Are you making it for any educational purpose? Or is it used to criticize or give commentary?
- Second, what’s the nature of the work? Is it published or not published?
- Third, how much sampling or copying was done? Did it or did it not use a substantial amount of the original work? Was a little copied or a whole lot of the original song?
- And lastly, what’s the effect on the value of the original work? Is the sampled or copied song just a substitute for the original or does it not affect the original song? Did it or did it not cause significant financial harm to the copyright owner?
What’s important to know about Fair Use is that Fair use is based on fairness and it’s decided on a case-by-case basis. So that means there’s NO bright line rule and that each case falls on its own facts. In fact, the Supreme Court has made it clear that all factors must be considered in any given case.
You can use the 4 factors in order to defend yourself against a lawsuit for sampling without permission. The problem is that you won’t know for sure which way the judge will rule. And, most likely you’ll have to hire an attorney to represent you in court.
Fair Use does not allow you to steal other people’s work. Rather, the purpose of Fair use is to promote creativity and to allow people to make more original creations.
So we’ve covered the basis of the Fair Use doctrine — which is one of the most important, if not the most important defense to sample and copyright infringement.
However, it’s always better and more safe to attempt to get permission from the original copyright owners as this will show good faith on your part to prevent copyright infringement.
What is the Risk of Not Getting a Sample Clearance?
Failure to get permission when you sample music could lead to serious consequences.
So What’s the risk? Using a sample without clearance is always risky.
As a practical matter, if your recording becomes popular at clubs or on the radio, or if a major label wants to pick it up, you’ll have to deal with sample clearance.
Unauthorized sampling actually violates 2 potential legal rights:
First, the instant you sample a piece of someone else’s song (no matter how small), it constitutes a violation of the copyright in song itself.
Second, sampling violates the sound recording copyright which is usually owned by the record company or recording artist. Thus, sampling without prior permission subjects the illegal copier to a copyright infringement in federal court by the original author (or publisher) and by the record company.
Using samples without permission can lead to litigation where an infringer may be forced to pay damages to the copyright owner which could amount to hundreds of thousands of dollars per infringement.
A court can also order you to recall and destroy all of your infringing copies and, in certain cases, can award the costs and legal fees incurred by the prevailing party in such a lawsuit.
Also, if you sample without permission, not only are you violating US Copyright laws, you may also be in violation of your own recording contract. If you are signed to a major label, most recording contracts contain several provisions called “Warranties,” “Representations” and “Indemnification,” in which you promise all the material on your album is original and agreeing that if your label are sued for copyright infringement, you agree to reimburse them for all their court costs, legal expenses and attorney’s fees.
Similar “warranties” and “indemnification” clauses exist in the distribution agreements between your record company and the retail stores. Thus, when you violate a copyright by sampling it without consent, all the warranties point back to you as the artist.
Therefore, if you sample illegally, be prepared to possibly give out substantial amount of money to not only the copyright owners, but also possibly to your label and their distributors and retail outlets.
In addition to these costly legal problems, the penalties for copyright infringement is harsh. If you sample somebody’s song without obtain proper clearances, you may be liable to the author for “statutory damages,” which generally range from $500 to $20,000 for a single act of copyright infringement. If the copyright owner proves you willfully infringed their music, you can be liable for damages up to $100,000.
The copyright owner also has the right to obtain an injunction against any further infringements, forcing you to stop your further violation of the copyright owner’s rights.
There is also a destruction procedure, which forces the infringer to recall all the illegal copies of the song in the albums and destroy them. Finally, you may even face criminal charges from the U.S. Attorney’s Office if you engage in intentional copyright infringement.
So in summary, if your song contains a sample and you don’t clear it, you are infringing the original owner’s copyright – and you’ll be caught red-handed.
If they do discover your release and if they contact you and point out your infringement, then in most cases, you’ll be facing many of the risks we just discussed.
Step-by-Step Directions of How to Get a Sample Clearance
So let’s give an overview of how to get a sample clearance before we go into detail for every step.
In order to legally use a sample, you need to get permission from two sources:
- One from the copyright owner of the song (which is typically the music publisher)
- One from the copyright owner of the sound recording (which is typically the record company).
The copyright for the song protects your lyrics and melody only and the copyright for the sound recording covers that particular recording of the song. The sound recording copyright usually belongs to whoever pays for the recording. In traditional music business, the sound recording copyright is always owned by the record company.
So in other words, you need to find and contact and ask permission from both the copyright owner of the underlying musical work and the copyright owner of the sound recording. Then you need to negotiate and come to terms with an agreement for using another artist’s sample in your work.
If you find that to be confusing, think of a situation when a music artist (let’s call him Andy) sings a song written by a songwriter (let’s call him Bob).
Bob creates the copyright which is the song — it can be written on sheet music before it’s ever performed and recorded. Then, when it is performed by Andy, he (or his record company) have created another different copyright in that recording of that performance.
Hopefully you can see that these two copyrights give rise to two income streams – one for the song and one for the recording.
Bob gets paid for every radio or live performance of the song and he gets paid for every record made (that’s called a mechanical royalty and is paid by the record company – we’ll talk about that in another time so that it won’t get confusing!).
Andy only gets paid for every record made and sold – that’s the record royalty.
So when you sample a piece of that recording, you are also sampling the underlying song and you need to get the permission (or clearance) of all the owners of the copyright in the recording and the song.
That means contacting the record company that owns the recording you have sampled but also all the songwriters and/or their music publishers.
Generally the record company will take a fee and a per unit royalty for every record sold and they may also ask for limitations on the use. The songwriters and music publishers will usually take a percentage share in your new song that has sampled theirs. The amounts depend on negotiation between you and the music publisher and the record company.
License fees for sampling depend on how much of the sample you intend to use, the perceived value of the recording you intend to sample from, and the intended use of the sample in your song. Licenses can sometimes be granted for free but usually there is a fee.
There’s also no standard rate for samples so the copyright owner can charge whatever the copyright owner wants to charge and does not have to grant permission to use his work at all.
The thing is that they have some leverage over you. What I mean by this is that once you’ve sampled their work and told them, they can ask for whatever they want.
Once you have the agreement of the copyright owners of the song and recording, you’re set.
Step #1: Find & Ask the Music Publisher
So where do we start? In order to get these sample clearances, you will first need to find the copyright owners of the song. The music publisher is typically the easiest to find; so let’s start there.
We first need to start by researching the artist and track you plan to sample. The best way to locate a publisher is through the performing rights organizations, such as Broadcast Music Incorporated (BMI), the American Society of Composers, Authors, and Publishers (ASCAP), and The Society of European Stage Authors and Composers (SESAC). These organizations collect money for radio, TV, and other public performances of songs.
You need determine which organization controls rights for the song you want to sample. You can also use Harry Fox’s website.
Once you’re on these websites, look for the “song indexing” section and search the title or artist name, revealing the track title, performer, the song writers, as well as the publisher names. You’ll need to find out who the original writers of the work are, and which publishers, if any, represent their interest or share of copyright in the song.
If you can’t find the song on the websites, you can try calling the individual performing rights organizations and asking for the “song indexing” department.
So next you need to search for the contact information of the publisher online.
Once you know who the publisher of the song is, the next step is to contact them and ask if it will grant clearance for the source music. In your request you’ll want to include:
- all the information you found on the performing rights organization website
- a copy of the original sampled work
- what you sampled (how long the sampled portion is, time, seconds/bars)
- a private link to your track
- the length of the track
- what the tentative release date is
The publisher is then in a position to consider price, contact the original composer for permissions concerning rights, and start negotiation over copyright ownership and royalty splits on the new record.
Keep in mind that a lot of publishers refuse to grant sampling clearance to artists that they’ve never heard of or do not know. If you can offer to pay them upfront and show your ability to pay, they may be more inclined to speak to you. We’ll talk more in depth about this later in the lecture.
Also again, if you cannot find the publisher’s information, or you do not get a response, or just have a phone number, don’t be afraid to call to get the correct contact information!
Step #2: Find & Ask the Owner of Master Recording
Anytime you make a recording, there are two copyrights in play:
Copyright for the Song itself
The copyright for the song protects your lyrics and melody only and the copyright for the sound recording covers that particular recording of the song.
Copyright for the Sound Recording
The sound recording copyright usually belongs to whoever pays for the recording. In traditional music business, the sound recording copyright is always owned by the record company.
Now days, it’s more common to see writers or publishers owning the sound recording because it’s easier to self distribute than it used to be and because the sound recording is valuable.
So after you’ve obtained the sample clearance from the music publisher, you have to obtain a sample clearance from the owner of the sound recording.
Typically, as we already discussed, the owner of the sound recording is a record company.
So the record company must be asked for permission to use the original sound recording.
So how do you find the owner of the master recording or the record company?
Here are some ways to find the owner of the master recording:
You can ask the publisher. Locating master owners is harder — record companies often fold or sell their copyrights to other companies. Also, sometimes rights in masters revert to the original artists after a number of years. The most likely person to know about who owns the master recording is the publisher.
You can also look up online record stores for this information.
However, if you want to be efficient with your time, I would highly recommend using a clearance expert.
Finding the Record Company that currently releases the music can be tricky. The best advice I can offer you is to use a Clearance Expert who will guide you through the clearance process.
There are a lot of clearance experts online but some of the more widely-used services are DMG Clearances.com and BZ Rights.com. There’s a lot more other clearance experts so I suggest doing a Google search and finding one that works for you.
For an hourly fee, sampling consultants will guide you through the clearance process — reviewing your use of samples and advising you 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.
Also keep in mind that master rights have their own price tag, and sometimes artists or labels will simply refuse to give their permission to use a sample — and they needn’t give reasons. If no permission is given, or the price tag is too high, you don’t need to abandon your project altogether: as long as you can license the publishing rights, sample recreation companies should be able to make an authentic–sounding reproduction of the recording.
Step #3: Costs of Sample Clearance?
Let’s talk about the costs associated with sample clearance.
The costs associated with sample clearances really depends on many factors. It really comes down to negotiations and how popular the artist is. And even in some situations, some artists won’t let you use their music regardless of the situation.
While there are no standard fees to get sample clearances, the Music Publisher usually wants:
- An up-front “advance” payment (which could be anywhere between $250 and $5,000), and
- A percentage of the song income (usually between 15% and 50%).
The owner of the Master Recording will want:
- An up-front payment (usually at least $1,000), and
- A “rollover” which 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 will ask for a portion of future record royalties. However, keep in mind that some sampling consultants advise against this practice.
In the normal course of events, when permission to sample is given there will be a fee for the privilege. The value of a sample, as well as the method of payment, will be determined by a range of factors, including:
The popularity and success of the original record and prominence of the sampled work in the new record. Puff Daddy’s ode to Biggie Smalls, ‘I’ll Be Missing You’, sampled the worldwide Police smash ‘Every Breath You Take’, so Puff Daddy had to give half a million dollars in publishing royalties to its author, Sting.
Also, it will depend on the likelihood of your success with your record. The territory, format of distribution, status of the artist and marketing spend all affect how your new version will be perceived, and therefore how much you’ll be charged for the sample.
Contrary to popular myth, samples aren’t billed on a per–second basis like some phone calls — nor are they free when under three seconds long. The overall impact of the sample, together with all relevant commercial factors, means that each sample is evaluated on a case–by–case basis.
A major artist will be able to charge top dollar for the right to sample their work.
For a producer looking to issue a limited self–release, it’s best to obtain a buy–out of all rights in the sample for a one flat fee. This would allow the producer to release the record and not incur further expense were the track to be picked up by a major label or licensed on compilations worldwide.
However, most publishers are more reasonable when approached with sample clearance requests. But keep in mind that it can be a time–consuming process, especially if rights holders are based overseas, or where the track sampled has itself sampled another work.
It won’t be enough to get permission for the second–generation sampled work — you’ll also need to clear all original samples. And, of course, where you sample too extensively, it could end up costing you all profits in your track.
Don’t worry if you won’t be able to pay an upfront fee. You can ask and negotiate if they will take a percentage of the royalties. As long as you show them that there is something in it for them and have done the groundwork, it will be easier to negotiate. Be up front.
You could also seek the counsel of a music lawyer, such as myself. Some may charge by the hour to handle this for you. Some have a flat rate. While it doesn’t guarantee success, it CAN save you time and headache.
Also note that 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
Step #4: What to Do if You Can’t Get Sample Clearance?
Should you fail to clear a sample, or not even bother trying, you could still release your record and hope it goes unnoticed — although you’d be in breach of copyright.
But what happens when an underground release becomes an unexpected hit?
At this point the original copyright holder will crawl out of the woodwork and demand that you recall the record from the shops and pay damages, and if you’re very lucky you’ll be able to re–release the record, only with the offending sample removed.
Quite apart from the legal nightmare of injunctions, lost profit, and damages claims, the delay alone could cost you sales and your reputation would certainly be hurt.
We also need to cover what you can do just in case you can’t get sample clearance.
It’s important to plan ahead and leave yourself alternatives in case your sample clearance is rejected. Obtaining permission for sampling can be a very long process. Don’t forget that a lot of copyright owners have a no-sampling policy.
If the music you were planning on sampling has a no-sampling policy, there will be no way to get permission to sample. It is wise to plan ahead and have alternatives in mind, in case your clearance is denied and you can’t use it.
A common mistake among music artists 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 have a no-sampling policy. If the sample request isn’t approved, be prepared to replace the sample with something else.
Alternatives to Getting Sample Clearance
Recreate the Sample
First, you can use different instruments or a similar sequence or any way to try to make it different.
Some artists avoid paying part of the sample clearance fee by re-recording the sampled section, instead of using the pre-recorded master. This means that the artist actually plays and records the music to sound exactly like the original one they want to sample.
However, you still need permission from the music publisher, but not from the owner of the master recording. This is a neat trick so let me explain –
Let’s say you want to use a six-second sample from “a certain song.” According to copyright law, infringement only occurs when the original master recording is used, but not when the sound is mimicked and re-recorded. So 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. So you won’t need permission from the master owner.This is a great solution if you cannot obtain sample clearance from the owner of the master recording.
You still need permission from the music publisher, because the song itself is copyrighted. However, you do not need clearance from the owner of the master recording.
You could also employ the services of a Sample Recreation Company to work around the problem. Companies like Rinse Productions and Replay Heaven offer to re-record the sample, and can do so to such a high standard that the original version and the new one are practically indistinguishable.
High quality re-recordings have the all the hallmarks of the original, but are quicker and easier to clear as there’s only the publisher to consider, and no prospect of stalemate over competing interests with the record label.
Make it Unrecognizable
While this is not completely suggested, you can also make the sample unrecognizable by distorting it and using a lot of effects to make the sample unrecognizable. Keep in mind that this is not full-proof so only use this tactic sparingly and as your last resort.
Burying it in the Mix
You can also bury the sample into the mix so that it becomes less prevalent and less recognizable. A lot of people suggest not using the sample as the groove or hook.
Not Using the Title of the Source Music in the Title of your song
Of course, you shouldn’t and don’t want to use the title of the source music in the title of the song. While again, this isn’t a full-proof way to protect yourself, it’s one minor way you can avoid getting in legal trouble for using sample.
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.
Seek Sample-friendly Copyright Owners
Some copyright owners are happy to clear samples — so much so that they encourage the process. Seek these out.
For example, some music artists pro-actively seek to promote their music for sampling. These artists are out there so spend some time to ask around and search for those artists who are eager to let you sample their work.
Even if you believe you can process, edit, or otherwise disguise a sample in the mix, you still need permission to sample.
Obtaining permission for music sampling can be a long and tedious process. However, legal claims of copyright infringement could mean that you are unable to use the music sample and you may even have to pay money damages. To avoid this legal trouble, be sure to get sample clearance.
What You Can Get When Someone Samples Your Song
When someone steals your song or uses a samples from your song, they have infringed your copyright meaning they’ve used it without your permission. Some of what you can get is peculiar to the copyright world.
Here’s how it works:
1. You get the fair market value of the use they made. For example, if they rip off your song in a commercial, and that use of the song is worth $10,000 in a marketplace deal, you can get $10,000.
2. You can recover the infringer’s profits. This is not a common remedy and is extremely valuable It means that if the person who infringed on your work made a profit using your work, you can recover his profits, which may be more than the fair market value of the usage.
3. You can get an injunction which means the court prohibits the infringer from using the infringing work. If they continue to use it anyway, they’re subject to big fines, and sometimes even jail.
4. You can recover statutory damages, which is a real copyright original. This is where you can’t prove actual damages — for example, your infringer was not only a thief, but also an unsuccessful businessman, and he lost money with your rip-off. Or maybe his profits are so well hidden that you can’t find them. In this case, the court can give you anywhere from $750 to $30,000 for a single infringement.
In other words, you can get a single amount per act of infringement and not the number of copies actually made. For example, putting out 20,000 CDs with your songs is still only one act of infringement The judge can even raise this to $150,000 if it’s intentional infringement, and can lower it to $200 for an “innocent” infringement.
5. You can also get your court costs, and, to a limited extent, recover your attorney’s fees. Attorney’s fees is usually rare because you normally don’t get attorneys’ fees when you win a lawsuit.
Cover Songs: How to Ask Permission to Cover a Song
Cover songs provide an easy way to target a new marketing base when placed alongside your own original works. In the digital age, cover songs can act as effective search engine optimizers for music (especially when you’re covering artists who don’t currently appear on iTunes, Amazon, etc.).
As a professional songwriter, you may already be aware that anyone who wants to record a version of your song needs a mechanical license from the copyright owner, usually you or your publisher.
Similarly, if you chose to record your own version of someone else’s previously recorded and distributed music, you would need to secure a mechanical license. A mechanical license is actually a “compulsory” license granted to users under United States copyright law. Usually, music users obtain these licenses through a music publisher or agent.
There are several services that can help in clearing mechanical licenses and ensuring songwriters get paid.
Limelight is one of the services you can use to clear any cover song in order to distribute by means of digital downloads, physical albums, and streaming. You can finalize your mechanical licensing and royalty accounting needs for a service fee of $15 per license plus required statutory publishing royalties as set by law.
Artists, bands and other musical groups can clear any song and ensure 100% of royalties are paid to the appropriate publishers and songwriters.
Publicity Releases: What You Need if Your Song is Part of an Advertisement
There’s an extra wrinkle if you use a sample for purposes of selling or endorsing a product (for example in a Toyota 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.
Sample Packs & Pre-Cleared Sample Discs: Can You Use them as Samples?
Sample Packs and Sample CDs — recordings that contain sounds and riffs specifically sold to be used in samplers — can be a good alternative for bedroom producers and small labels.
Most sample packs and 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 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 don’t buy the right to redistribute the samples, 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 manufacturer to see if you’re eligible for a refund.
So there we have it — we’ve covered what sample clearance is and how you can get permission when you sample a song.
Music is a creation that represents the artist and belongs to everyone’s ears, but when it comes to paying the bills, everyone is willing to go the extra mile to protect their work.
If you’re sampling or remixing another artist’s work, some of the sampled artist may feel entitled to compensation; some may not. My recommendation is to get permission before you invest a lot of time in your own work.
Let’s review some of the points we made in the course:
We’ve discussed why sample clearance is necessary? And the reason is that if you don’t get permission to use samples, this could lead to costly lawsuits or the inability to distribute your music to the public. No only does using someone else’s sample infringe on the copyright of the owner of the original sound recording, but it also breaches the copyright in the music and lyrics.
The main point I want you to learn about music law is that you need 2 clearances: one from the copyright owner of song (which is typically the music publisher) and one from the copyright owner of the sound recording, which is typically the record company.
Then you also need to find and ask the owner of the master recording. The best way to find the owner of the master recording is to ask the publisher or you can use a clearance expert if you can’t really find it otherwise.
The cost of sample clearance really varies so make sure you review the topic on the costs of sample clearance to know what to expect when you’re negotiating with both the music publisher and the record label.
We also talked about what to do if you can’t get a sample clearance. You can try recreating the sample, making the sample unrecognizable, buying it in the mix, not using the title of the source music in the title of the song, contacting the artist or songwriter directly, or seeking sample-friendly copyright owners.
As we already discussed, you’ll be on safer legal ground if you get permission permission, especially if you have a record contract that puts the burden of sample clearance on your shoulders. Even if you don’t have a record contract, you should still ask for permission every time you sample a song, especially if the song means a lot to you.
Most labels, publishers and artists are happy to give their permission to artists looking to re–work their music for a fee.
The world of cover songs, sample clearances, mechanical licenses, and music law has complex rules and regulations for the casual music creator. However, one thing always holds true: If you ever have a question — don’t be afraid to ask! That’s why I encourage you to post your questions on the course discussion board.
I hope you benefited from my guide!
Sam Mollaei, Esq., music lawyer, can be reached by email [email protected]