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Sampling: Legally Ambiguous Like Whoa

This post focuses on the practice of sampling and its legal ramifications.

Sampling has, for years, been a routine practice in the music industry.  Sampling is taking a part of an already recorded musical composition and repurposing it in a new composition.  It used to be that people would simply sample freely, release the material, and pay up if they got caught.  But, there were a good number of high profile court cases in the early 90s that showed that this wasn’t a very legally sound practice. The whole process of sampling is complex because the owners of the composition (the publisher or the artist) and the owners of the masters (probably the label or the artist) don’t have to let you use the material at all.  This means that they can essentially ask whatever they want from you if you a) approach them with an offer or b) get caught after releasing a sampled track.

The Dudly Do-Right Method

Major record labels have tons of money and are rather risk adverse.  Therefore, if a producer on a major decides to use a sample, it gets licensed… period.  Usually this just comes out of the budget of the project if the fee is a fixed dollar amount.  It’s not uncommon to have this be several thousand dollars, depending on the prominence of the use.  Holders of the rights can even request to be given a portion of the composition’s intellectual property.  This is a little nutty, in my opinion, but it’s true.

The Rest of Us

Most of us don’t have several grand lying around for licensing purposes.  This simple fact has produced a precedent in law whereby generally people won’t bother you if they know they can’t get anything from you.  But, as soon as you get successful they’ll take you for all they can.  This means that, if you’re gonna sample something, make it obscure and unrecognizable.  Sample simple chords or notes, or single drum hits.  Those things aren’t enough material to be considered a musical motif, and therefore probably won’t be liable with regards to publishing (only with regards to the recording… which still seems like a stretch to me).  Change the pitch.  Slice it up.  Distort it.  Do SOMETHING so that it won’t catch the ears of someone who has deep pockets and a grudge.  Don’t pull an MC Hammer or Vanilla Ice and sample a song outright without paying up.  Generally, if the bit you’re sampling is the hook of a song, it’s not a good idea because it constitutes a considerable portion of the value of the original composition.

(Shhhh.  If you are using a sample that is not recognizable, don’t declare that it is a sample in your liner notes as this will surely indicate that you consider it a significant usage, which will cause legal hellhounds to descend upon you.)

What it Means

I want you to know that this is NOT legal advice by any means.  I am not an attorney.  But, we’re largely back to the place we were prior to all the lawsuits.  If nobody notices your sound is a sample and can’t reference the original source, you won’t get in trouble.  Every case is different.

So it’s still ambiguous.  Sorry.  Modern US copyright law sucks. Don’t you just LOVE legal crap?

2 Responses to :
Sampling: Legally Ambiguous Like Whoa

  1. Keith Handy says:

    Copyright law aside, changing something to the point where it’s unrecognizable is a creative act in its own right, and it’s good and fun to be creative. (I don’t know if everyone in the music scene realizes that it’s actually “good and fun to be creative”, so I have to spell it out in simpleton terms like that.) :)

  2. Dan Connor says:

    Keith – That’s right. I thought about mentioning that but I didn’t want to offend any Hammer fans in the audience. Hammer, don’t hurt ’em…

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