M.E.L.O.N.: Sampling Q&A

What is Sampling? Sampling has several definitions, but the one used most commonly in music today is the practice of taking a section of recorded music, such as a guitar riff or a horn flourish, and inserting it into a new recording, often with some modification and in a loop. The use of samples in music can vary. Some samples are a straightforward reproduction of a familiar section of a popular song set to a new style of music. Examples of this approach are MC Hammer’s “U Can’t Touch This,” Vanilla Ice’s “Ice Ice Baby,” and Kid Rock’s “American Badass,” which sample Rick James’ “Superfreak,” Queen’s “Under Pressure,” and Metallica’s “Sad But True” respectively.

At the opposite end of the sampling spectrum are artists who approach the practice as a sort of musical collage, an established practice in the visual arts, where artists modify a sample, such as a change pitch or tempo, and combine it with a number of other samples to create a wholly unique sound or atmosphere. The Beastie Boys, Nine Inch Nails, and Beck often use samples in this way.

Permission to Sample

Because samples are pieces of recorded music, understanding the rules regarding sampling requires a quick discussion of how copyright law applies to sound recordings.

“Copyright” is a blanket term that covers a number of specific rights that apply to creative works. Among those rights is the right to make and sell additional copies of the work, the right to make other works derived from the original work, and the right to show or perform the work publicly.

The courts have had varying approaches to sampling as cases have arisen, but the current legal standard is that all samples must be properly licensed from the copyright owner. In the past there were allowances for minimalist uses, which did not require a license. However, that is no longer the rule. All samples must be cleared by the copyright owners. Samples of any length, modified or not, recognizable or not, must be licensed.

Where Do You Go To Get a License?

In order to figure out who to talk to about getting a license, we have to talk more about copyright and how it applies to music.

Copyrights relating to music can be a bit tricky. There are two sides to the copyright coin with respect to music. On one side you have the song itself, which is comprised of the music, the arrangement, and the lyrics. For copyright purposes, this is called the “composition.” On the other side of the coin is the specific captured performance of the song as it is recorded onto some form of media. For copyright purposes, this is called the “sound recording.” Whenever a song is played on the radio we think of it as a single thing (the coin), but in reality it is really a fusion of the composition (the song as written by the songwriter) and the sound recording (the performance of that composition as captured by the musicians, producers, mixers, etc. in the recording studio).

The effect of this is that there are two copyrights that protect a sample. One copyright covers the composition, the musical notes or lyrics that comprise the sample. The other copyright covers the recording of someone playing the music in the recording studio.

Oftentimes the owners of the composition and of the sound recording are different entities. Tracking down the music publisher who owns the copyright to the composition and the owner of the sound recording from the studio isn’t always easy. There are companies that assist artists in obtaining clearances for their samples. Contacting the label to request a license provides an opportunity for the requesting artist to be put in touch with the owner of the composition. The performance rights associations, ASCAP, BMI, and SESAC, also have searchable lists of songs. Since many publishers work with these groups they are likely to have the contact information of the copyright owner.

In other words, there is no single clearinghouse to go to for a license for a sample. It requires a little searching, but it is a relatively straightforward process and is far from impossible. Remember, the copyright owners want artists to get a license before they sample, so they want to be found.

How Much Does the License Cost?

Licensing costs are variable and depend on several factors such as the popularity of the original recording or how recognizable the sample is, how much of a song is being sampled, who and how popular the requesting artist is, and so on. Some samples are licensed for a flat fee, others for a percentage of sales, and sometimes a combination of both. Unfortunately, the answer to the question of cost is, “it depends.”

However, despite the very real costs of licensing samples, they are almost always less than the cost of litigation, damages, and having your record pulled from distribution.

Tony Berman of Berman Entertainment and Technology Law will be speaking further about sampling at a panel at the Future of Music Coalition Policy Summit, October 4-6 2009 in Washington, D.C.