Sampling Music & Law regarding sampling

You may have noticed that there are several song out in the world today that use parts or words from other songs, within their song.  This is particularly popular in rap songs and also as introductions into songs.  This is known as sampling.  It basically means that you are going to use a part of someone else’s song, within your song, and the original artist isn’t going to be singing it.  This can make for some very interesting music and normally sounds very original, but it can be dangerous.  Sampling without the proper permission is obviously illegal.  It is an instant copyright violation.  Also, since you didn’t write the lyrics, nor did you record it, you are violating two different copyrights.  This can get you in a mess of trouble, but there is a right way to do things.

Permission is going to be the biggest part of this process.  You will have to identify and contact the person or company who holds the copyrights for the piece of work that you are interested in sampling.  Normally this will be the publishing company and the recording company.  You must ensure that you have permission from both copyright holders, one is not good enough.  Once you’ve contacted the copyright holders, you will have to negotiate a fee for using the song.  The price for a sampling can be all over the board.  Ultimately it will depend on who you are sampling from (big name artists are more expensive than non-name bands), how long of a sample you will be using (a fraction of a second is minor, but anything more than five seconds will be major), and how it will be used in your song.  Structuring an entire song around someone else’s will be very costly, while only using brief sections will be cheaper.

Now you will have to decide how it is you are going to pay these people.  Your first option is a buy-out.  This is a simple, flat fee that you are going to pay upfront to use their music.  Again, these fees will vary depending on the artist.  Your other option is to offer a mechanical royalty fee.  This means that you will pay a portion of every sale of the song, back to the original artist.  These fees can range all over the place, and occasionally will have to in addition to some kind of a flat rate, ensuring the artist will get some money out of it.  Any variation of these two options is a possibility too.  Some artist may even off the sampling for free just to get their name and music out there a little bit.  This normally happens with a larger band wants to use a smaller bands music.

Firms are also available to assist you in the pursuit of obtaining these sample licenses.  Occasionally these firms will actually be cheaper than hiring an attorney and they will often times negotiate a fee for you.  This will help save you a little bit of time and give you the best chance of actually obtaining the license to use a sampling.  No matter how you get it, a sampling license in absolutely necessary when you are interested in using any portion of someone else’s copyrighted music.

If you choose to ignore the law and simply use a sample of someone else’s music you can find yourself in a pretty bad situation.  Some of the copyright laws are strict and the punishments for breaking them can be severe.  In most cases the judge will slap you with a massive fine.  These fees can reach into the hundreds of thousands of dollars and higher.  That alone could not only bury your band, but also you, depending on the business license you are operating under.  The artist could also demand payment for each album sold or, even worse force a recall.  This would mean that every album ever sold would have to be recalled (all that promotional money down the drain) and destroyed (all that publication work and money gone).  No matter which way you spin it, unauthorized use of someone else’s songs could be the end of your band.

Some people may have heard of a “fair use” rule that is in the music industry.  This rule says that as long as it is four notes or less, there is no penalty for copyright infringement.  That is not true at all.  No matter how many notes it is, if a jury decides that they are easily recognizable as part of the other song, you can be fined.  Even if it is something that was done unintentionally, you can still find yourself in a world of trouble.  The only songs that aren’t a part of this copyright law are the songs that have no one holding a copyright for.  This eliminates almost every song, but there are a few that are public domain.  But other than this small group of songs, you must always have a sampling license.

These problems can become even worse if you are under a record company.  The reason for this is, most record companies will have sections in their contract with you covering these types of situations.  It will basically say that you are making your own, unique music and that if the company is sued because of copyright infringement, then you are personally liable for any lose the company takes on.  This can be a huge fine, since the record company will have similar contracts with other music suppliers, radio stations, studios and producers.  That means they will have to reimburse all of those people for your mistake, and then you will have to reimburse the record company for all of it.  All in all, it’s less risky and ultimately easier and cheaper just to get the license.

Sampling Music & Law regarding sampling


About Real*Industry*Talk

Professional Page: Experience: ASCAP Real Industry Talk Independent Music Company Get It Done Blog Artist Manager Education: Full Sail University, B.S., Music Business View all posts by Real*Industry*Talk

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