The Law Regarding Sampling
By
Michael McCready
Attorney at Law
Sampling
is the use of portions of prior recordings which
are incorporated into a new
composition. Sampling has become an integral part of many genres
of music today. When you sample someone's song without
permission, it is an instant copyright violation. It is the
unauthorized use of copyrighted material owned by another.
Sampling without permission violates two copyrights-the sound
recording copyright (usually owned by the record company) and the
copyright in the song itself (usually owned by the songwriter or
the publishing company).
If you want to use a sample legally, you must obtain permission from the copyright
owner. The copyright owner is usually a publishing company or
record label. Remember that you must obtain permission from
both the owner of the sound recording and the copyright owner of
the underlying musical work. The fee for a license to use a
sample can vary tremendously. The fee will depend on how much of
the sample you intend to use (a quarter second is a minor use;
five seconds, a major use), the music you intend to sample (a
Madonna chorus will cost more than an obscure drum beat), and the
intended use of the sample in your song (it is more costly to
build your entire song around the sample than to give it only
minor attention).
There are two different ways to pay for a license. First,
you can pay a flat fee for the
usage. A buy-out fee can range from $250 to $10,000 on a major
label. Most fees fall
between $1,000 and $2,000. The other way to pay for the license
is a percentage of the
mechanical royalty rate. The mechanical royalty rate is the
amount a person pays to the
copyright owner to make a mechanical reproduction (copy) of the
song. A license which is a percentage of the mechanical royalty
rate is generally between ½ ¢ and 3¢ per record pressed.
Everything is negotiable and it is not unusual to get a license
for free, if you ask.
If all of this sounds confusing, there's hope. There are
businesses devoted entirely to
securing and negotiating clearances for samples. These firms
charge less than an
entertainment attorney would charge and are generally more
knowledgeable about the going rates for uses.
If you use samples without obtaining the proper clearance
licenses, you have to be
aware of the penalties. A copyright infringer is liable for
"statutory damages" that generally run from $500 to $20,000 for a
single act of copyright infringement. If the court determines
there has been wilful infringement, damages can run as high as
$100,000. The copyright owner can also get a court to issue an
injunction forcing you to cease violating the copyright owner's
rights. The court can also force you to recall all your albums
and destroy them.
There is also a rumor going around that you can use four
notes of any song under the
"fair use" doctrine. There is no "four note" rule in the
copyright law. One note from a
sound recording is a copyright violation. Saturday Night Live
was sued for using the jingle, "I Love New York" which is only
four notes. The test for infringement is whether the sample is
"substantially similar" to the original. Remember, a judge or
jury is the one who determines this and these people may be much
less receptive to your music than your fans. My point is you
cannot rely on fair use as a defense.
Sampling can also have tremendous consequences if you have a
record contract. Most record contracts have provisions called
"Warranties", "Indemnifications" and
"Representations". These provisions constitute a promise that
you created all the music on your album and an agreement to
reimburse the label if it is sued. These same provisions are
included in all contracts throughout the entertainment
distribution chain. The record company has them with the artist,
the distributors with the record company, the record stores with
the distributors, and so on. Well, all these warranties point
back at the artist who is responsible to everyone else!
Therefore, if you violate someone else's copyright, you will be
paying all the bills of your record company, distributor and any
stores which incur expenses as a result of your infringement.
This can run into serious money as you can imagine. You will
also be in breach of your record contract. Read your record
contract carefully before using any samples.
Michael McCready
represents clients in all areas of the music industry including
music, radio,
television,
stage, and book publishing. His music law practice includes
representing bands, record
labels, production companies, recording studios, promoters, and
music publishers.
His work includes copyrights, analyzing and drafting contracts,
trademarks,
publishing,
and litigation.
Michael McCready
Attorney at Law
1900 Chicago Road
Chicago, IL 60411
McCready@music-law.com
(708) 754-6212
Fax: (703) 754-8658
