By Richard Salmon
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.
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 article 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 involves the incorporation of another sound recording into
your own new record. A producer may sample an underlying element in a
record — for instance a string or bass line, perhaps borrow a drum loop,
or even lift several bars wholesale from a classic soul record — and
write a chart–friendly melody over the top.
The creative act of sampling is nothing new. Much of the Beatles’
late–’60s output owes a great debt to the sound–collage and
tape–splicing artistry of production legend George Martin. Nor should
sampling be a worry, when the primary source of the sample is
self–created. Be it a vocal drone, birdsong recorded and cut up into
your dance tune, or as in the case of the Nile Rogers’ inspired vocal
stutter, ‘No... No... Notorious’. Rodgers had sampled Duran Duran’s
vocals and edited them into an immediate radiotastic hook, as he’d
already done on 1984’s pitch–shift sampled intro to ‘The Reflex’.
Modern–day producers such as Timbaland and Pharrell Williams aren’t
averse to incorporating their own homegrown beat–box elements into major
airplay hits. The Williams–produced ‘Rock Your Body’, for instance, is
liberally peppered with Justin Timberlake’s own down–the–mic percussive
elements.
The legal headache, as far as the producer, artist or songwriter is
concerned, stems from using another person’s original sound recording
without prior permission, since this constitutes copyright infringement.
The act of sampling without permission infringes copyright in three
distinct 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 lyrics, and thirdly, it constitutes an unauthorised use of
one or more of the performances in the original work, such as a guitar
riff, vocal hook, or drum part. In addition, 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.
In UK law, under the Copyright Designs and Patents Act 1988, in order
for infringement to take place a ‘substantial part’ of a copyright work
must have been used. Substantiality in UK law differs somewhat from its
US counterpart, the doctrine of ‘substantial similarity’. Moreover, US
copyright law permits the defence of ‘fair use’, which has been invoked
in a number of recent cases, although not always successfully (see ‘Case
Dismissed’ box).
Regarding the question of whether a ‘substantial part’ has been
copied, the UK case of Produce Records Ltd vs BMG Entertainment Ltd
(1999) established that a 7.5–second sample of ‘Higher And Higher’, a
track originally recorded by the Farm and owned by Produce Records,
constituted infringement when appropriated by veteran Latino duo Los Del
Rio, for their summer hit ‘Macarena’. BMG settled the case out of
court, thus avoiding trial, with the major label appearing to concede
that Produce had an arguable case.
Robbie Williams blends into the crowd at a Stoke City home match.
In
Ludlow Music Inc vs Williams (2000), a two–line lyrical ‘sample’ of the
song ‘I’m The Way’, written by Loudon Wainwright III and published by
Ludlow Music, formed the basis of a copyright dispute, when Robbie
Williams used very similar lyrics in his own song ‘Jesus In A Camper
Van’ — there was no use of the original recording, so the dispute only
concerned copyright in the song itself. At considerable expense to the
record label, the judge ruled that the Robbie song be removed from all
future pressings of his album
I’ve Been Expecting You. Robbie
also lost out on 25 percent of the publishing income on ‘Jesus In A
Camper Van’ to Ludlow Music, a figure said to be somewhere in the region
of £50,000.
Despite the fact that the judge actually described Loudon
Wainwright’s own song as a parody of an earlier Woody Guthrie song, he
was of the view that the extent of the copying was substantial,
“although not by much”. Compare the following lyrics and decide for
yourself! Loudon Wainright’s lyric goes:
Every Son of God gets a little hard luck sometimes, especially when he goes round saying he is the way.
The Robbie lyric went:
I suppose even the Son of God gets it hard sometimes, especially when he goes round saying I am the way.
Over the pond, the recent US decision by the Sixth Circuit in
Bridgeport Music vs Justin Combs Publishing (2007), confirmed copyright
infringement liability against Sean ‘Diddy’ Combs and his Bad Boy record
label. This case concerned the title track from The Notorious BIG’s
1994 album
Ready To Die, which sampled the song ‘Singing In The
Morning’ by ’70s funk outfit the Ohio Players. The Biggie record
sampled just five seconds of horns from ‘Singin’ In The Morning’, but
very bad boy Diddy had failed to obtain a licence for its use.
The song’s copyright owners Bridgeport Music and Westbound Records
sued for infringement, with a US jury awarding $733,878 in damages to
Bridgeport, and punitive damages of $3.5 million to Westbound. Allowing
common sense to prevail, the trial judge overturned the award, ruling
instead that Bridgeport should receive $150,000 in statutory damages,
with Westbound receiving $366,939 in actual damages. Still, that works
out at over $100,000 per second of music — a brief yet very costly
mistake!
Dr Dre, another big name from the US urban scene, has also spent his
fair share of time in the legal spotlight. In 2003, Indian composer
Bappi Lahiri and Saregama India Limited sued Dre and Universal Music for
$500 million, over the use of an unlicensed sample on ‘Addictive’, the
debut single from Truth Hurts’ album
Truthfully Speaking. Dre
was also slapped with an injunction preventing the continued sale of the
record, which by then had already shifted over 200,000 copies.
Dre and his producer DJ Quik had used a sample of an old Hindi song,
‘Thoda Resham Lagta Hai’, without permission from the Indian copyright
holder Saregama. The plaintiffs alleged that in addition to ‘borrowing’
the distinctive vocals, Dre and Quik had helped themselves to the hook,
the melody and the rhythm.
Dre has also recently incurred the wrath of one Madge Ciccone.
Madonna’s publishing company are up in arms over Dre’s alleged copying
of her 1983 hit ‘Holiday’ on the single ‘Not Today’, featured in the
film
Barbershop 2. They are demanding a refund of £7m from Dr
Dre and his collaborators, artists Mary J Blige and rapper Eve. The
publishers allege that parts of ‘Not Today’ include “several obvious
instances of reproduction”.
Not all court cases go in favour of the copyright holder (see ‘Case
Dismissed’ box), but it’s always advisable to obtain a licence and
permission from the copyright holder before sampling another’s work.
Moreover, what may be acceptable in one country may constitute an
outright infringement of copyright in another, and defences such as
‘fair use’ are not universally available everywhere. This needs to be
borne in mind when releasing records internationally. So which rights
should you be concerned with when sampling?
Even if you believe you can process, edit, or otherwise disguise a
sample in the mix, you still need permission to sample. This means that
the producer or artist must first gain sample clearance from the record
label for use of the original sound recording and featured performances.
Usually, you will also need permission from the publisher(s) for the
use of the underlying composition (ie. the words and music). If
copyright wasn’t originally assigned to a record label or publisher,
then you’ll need to track down the respective copyright owners — or
their heirs, if deceased — and seek their permission instead. Where, for
example, a song has a number of co–writers or publishers, this is no
easy task.
Alternatively, you could employ a sound–alike company to recreate the
sample you’re after (see the ‘Recreation Grounds’ box). In this case
you wouldn’t be infringing an original sound recording copyright, and
would only require one set of permissions from the publisher of the
music and lyric.
It’s ironic that in an era of rampant piracy and the downloading of
‘free’ music, those making records still need to clear and pay for
samples — whereas the end consumer can enjoy an entire album free of
charge. Still, as a business–to–business activity, sampling is a
lucrative business for those companies sitting on valuable copyrights,
and in corporate–speak, can often give rise to valuable ‘synergies’.
Kanye West, like many hip–hop stars, has used sampling extensively in his work.
Witness
the recent release of Sean Kingston’s ‘Beautiful Girls’. Not only did
Sony/ATV–signed writer Jonathan Rotem help write and produce the track,
but the song sampled the Sony/ATV–owned Ben E King classic ‘Stand By
Me’. The fusion of old recordings and modern technology helps publishers
to safeguard future revenue streams by creating such chart–friendly
hybrid copyrights. Rapper Kanye West has also topped the charts with his
latest album offering
Graduation, but much of the album’s
royalties will actually find their way into the pockets of ’70s acts
Steely Dan and Elton John, thanks to West’s bountiful sampling of these
artists.
Should you fail to clear the original sample before releasing your
own record, you may be faced with a number of unwelcome legal
consequences. You could be sued for damages for copyright infringement
and face an injunction stopping you from continued sale of any
infringing copies, as well as having to recall and destroy any CDs or
DVDs incorporating uncleared samples. Your record label could even
lumber you with the costs of this remedial work.
If you produce or remix records for other artists, it’s usually your
responsibility to clear any samples introduced during the recording
process. The artist or their label will probably make you contractually
responsible for doing so as a pre–condition of accepting delivery of the
final record. Where the record label asks or insists that you include a
particular sample, you should request that they pay for the related
clearance costs. In other cases, sampling will add to the overall
recording cost, and may be deducted from your earnings unless agreed
otherwise.
If you already have a record deal, then you’ll need to address the
issue of whether any sample clearance fee, royalty payment or advances
paid to third–party copyright holders should be recoupable from your own
royalty earnings, or whether the record company should split all or
some of the expense. Some labels take the view that sampling costs are
part of recoupable recording costs, whereas others take a softer line.
However, it’s never advisable to ignore the issue and release a record
carrying uncleared samples. Further down the line, the record company
may invoke the artist’s warranty clause in the recording contract and
set about recovering sums direct from the artist, should the label be
sued for copyright infringement.
During recording sessions, producers and artists should keep detailed
notes of samples used, along with their source, and their timings on
the record. This can be used for notification purposes on delivery of
your final mix.
It’s also sensible for producers and writers to hire out their
services through a limited company, then through an employment agreement
with this new company, assign copyright in the songs that they produce.
Should they be sued for millions in a copyright infringement claim,
they’ll then be protected from personal bankruptcy!
In more general terms, in order to clear samples you can either use a
sample–clearing company to assist you, or do the job of gaining
permissions yourself. Sample–clearance companies such as Sample
Clearance Services Ltd (
www.sampleclearance.com)
can often negotiate better rates than individual producers or DJs. Such
companies can sometimes assist in providing legal advice and expertise
in dealing with overseas labels and publishers, and may also be able to
clear all future uses of the sample. Where, for example, your club tune
crosses over, and you find you have a hit on your hands, you would then
be free to license the record for film, TV, Internet or advertising
usage, without seeking further licences.
Sample–clearance companies usually charge a flat rate: for example,
Sample Clearance Services’ web site states that their “standard fees for
sample clearance are £275–£300 per clearance”. Bear in mind that one
sample may require two clearances: one for the sound recording and
another for the publishing.
Whether you use a clearance company or the DIY route, these steps should be taken:
Major
music publishers such as EMI are used to dealing with requests for
sample clearance and have procedures in place to streamline the process.
- The publisher of the original work must be contacted. You’ll
need to find out who the original writers of the work are, and which
publisher(s), if any, represent their interest or share of copyright in
the song. In the UK, the MCPS/PRS can help you with this. They operate a
vast database of registered works, and also have a sample–clearance
team to assist you. Once you know the publisher and authors, you provide
them with a copy of your new record, a copy of the original sampled
record, and an isolated copy of the sample in question. Providing extra
details, including the release label and size of the release, will help
them evaluate your proposed use and speed up the process. The publisher
is then in a position to consider price, contact the original composer
for permissions concerning moral rights, and start negotiations over
copyright ownership and royalty splits on the new record.
- The
record company must be asked for permission to use the original sound
recording. 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 needn’t abandon your project altogether: as long as
you can license the publishing rights, sample recreation companies
should be able to construct an authentic–sounding reproduction of the
recording. See the ‘Recreation Grounds’ box for more details.
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 notoriety 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’, thus sacrificing £500,000 in publishing royalties to its author,
Sting.
- 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.
For the dance 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–off 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.
A major artist will be able to charge top dollar for the right to
sample their work. They’ll probably expect an advance payment running
into thousands of pounds, as well as future royalties of approximately
1–5 percent on every record sold. These additional costs should be
factored into your budget for the release.
Similarly,
a stubborn or opportunistic publisher may demand 50–100 percent of the
publishing income for the privilege of using their words or music. Rock
band the Verve learned this lesson the hard way, when following the
release of
Urban Hymns in 1997 they were obliged to give up 100
percent of the royalties on album opener ‘Bittersweet Symphony’ to
Abkco Records. The Verve had sampled
The Last Time, a Rolling
Stones / Andrew Oldham Orchestra record from 1965. In the court
settlement, entire copyright ownership of the the Verve’s song went to
Abkco, with full songwriting credit going to Mick Jagger and Keith
Richards.
Most publishers are more reasonable when approached with sample
clearance requests. But bear 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 sufficient to
gain 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 eroding all profits in your track anyway.
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 chart position — a fate suffered by Rui Da Silva, who was sued by
BMG records and obliged to remove an uncleared sample of Spandau
Ballet’s ‘Chant No. 1’, from his dance hit ‘Touch Me’ featuring
Cassandra.
Don’t let these cautionary tales put you off sampling, though. Most
labels, publishers and artists are only too happy to give their
permission to artists looking to re–work their music — for a fee.
Moreover, not all unauthorised sampling ends in tears. ‘Tom’s Diner’, an
a cappella song written by Suzanne Vega, was known only to fans who
bought her 1987 album
Solitude Standing. Then, in 1990, DNA
sampled Vega’s voice over a sparse beat–laden track. The results were so
popular that Vega and her label decided to issue it as an official
remix, achieving worldwide acclaim and a top five single.
2 Live Crew making a statement with their bodies.
Not
all copyright disputes over uncleared samples are resolved in favour of
the sample’s copyright holders.
One example is the US case of Newton v
Diamond (2003). In this case the Beastie Boys had actually obtained
permission from ECM Records to sample a six–second, three–note sequence
from James Newton’s flute recording
Choir. The Beasties then incorporated the sample as a loop into their song ‘Pass The Mic’, which featured on the album
Check Your Head.
Unfortunately, the composer of the tune, James Newton, sued, as he
hadn’t given his permission for use of the underlying composition.
On
appeal, the court confirmed an earlier ruling that no infringement had
taken place. The court was of the opinion that the use of the sample was
minimal, the two records weren’t substantially similar, and also that
the public wouldn’t recognise any appropriation of Newton’s composition.
(Though it should be stressed that recognition alone is no legal
barometer of whether another work has indeed been copied.)
Other
defendants on the receiving end of sample infringement claims in the US
have been able to rely on the defence of ‘fair use’. Fair use is a
doctrine not recognised in UK, which permits copying for the purposes of
criticism, reporting and review. The aim of the US legislators who
enshrined this in law in 1976 was to allow authors to build upon, and
transform existing works, but without the requirement of buying a
licence to do so. The rights accorded to the copyright holder needed to
be balanced with the broader cultural benefits of allowing artists to
borrow from, re–work, and comment upon existing works of art. If Andy
Warhol could re–work the images of Campbell’s soup or Marilyn Monroe,
then a fair use defence would argue that today’s gangsta rappers should
be free to sample their source of musical inspiration to produce new and
original work.
The scope of the fair use defence was explored by
the US Supreme Court in Campbell vs Acuff–Rose Music (1994), which
concerned 2 Live Crew’s infamous parody of the Roy Orbison classic ‘Oh
Pretty Woman’. Rather than dismissing 2 Live Crew’s claim on the basis
that they’d used Orbison’s music for commercial gain, the court looked
at the factors of acceptable fair use, ruling that parody constituted a
fair use, despite the fact 2 Live Crew had benefited financially.
Guidelines
that the court considered in evaluating fairness of the use included
the purpose of the use and its commercial potential, the nature of the
copyrighted work, the size of the sample taken in relation to the
copyrighted work as a whole, and the effect of the sampling upon the
market value of the original work. In general, cases of sampling will be
more deserving of fair use protection where they represent true
creative effort on the part of the producer, and don’t threaten the
market of the original record. In this case, 2 Live Crew’s buying public
were considered to be of a sufficiently distinct demographic to Roy
Orbison’s older fanbase.
Sample–recreation specialists can help in situations where the owner of a recording can’t be found, or refuses to license it. If
the owners of a sound recording flat out refuse to license your sample,
or insist on a ridiculously high fee, you could employ the services of a
sample–recreation company to work around the problem. Companies like
Rinse Productions (
www.rinseproductions.co.uk, or as interviewed in
SOS September 2003 at
www.soundonsound.com/sos/sep03/articles/rinse.htm) and Replay Heaven (
www.replayheaven.com)
offer to re–record the chosen sample, and can do so to such a high
standard that the original version and the new one are practically
indistinguishable. These musical skills have helped secure a string of
dance hits for labels like Ministry of Sound, who recently benefitted
from Replay Heaven’s recreation of sections of Steve Winwood’s ‘Valerie’
on Eric Prydz’s million–selling dance tune ‘Call On Me’.
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. One such example was the recreation of the Human League’s ‘Don’t
You Want Me’, featured in a Fiat Puto ad depicting a lovers’ tiff played
out in a Midlands garage forecourt.
Talking of re–recordings,
there’s been much rumour of late in the press that Wu–Tang Clan have
achieved the impossible, and obtained rights to sample the Beatles’
‘While My Guitar Gently Weeps’, for inclusion on the WTC release ‘The
Heart Gently Weeps’. This story has garnered welcomed publicity for the
group, but the reality is somewhat different. WTC’s new track in fact
includes re–created or interpolated elements of the Beatles’ original.
Wu–Tang weren’t able to secure rights to the original master recording
from EMI records or Apple Corps, and in fact their agreement sees them
giving up 100 percent of all songwriting royalties, simply to re–record
the Beatles composition. All publishing royalties will go to the estates
of George Harrison and John Lennon, Northern Song owners Sony/ATV, as
well as to Paul McCartney and the publishers of his share.
Published
March 2008
