Let's talk about certain legal aspects of Sample Clearance
If you've graduated from "bedroom producer" to producing local artists , this may be helpeful . Don't stunt your creative growth ,and be afraid to sample (espacially if you're good at it ) because you're scared of being sued .Here are a few facts that might help you ...
... If you have heard or lived similar situations ,please be kind to share . Thanks .
Under the copyright law, you may be in the clear in the following situations:
If your use of the sample isn't considered infringing. If you altered a sample so that an average listener comparing the two works (your composition and the source) can't hear any substantial similarities, then there's no violation of the law. For example, a court determined that Run DMC's use of a drum sample from the 1973 Honey Drippers recording of "Impeach the President" was not infringing.
If your use of the sample is inconsequential. When the Beastie Boys recorded the song, “Pass the Mic,” they repeated a six-second sample from a song entitled “Choir” from an album by the award-winning flautist James Newton, Jr. The sample consisted of a three-note pattern: C, D-flat, C. Newton simultaneously sang and played these notes, a method known as vocalization. The Beastie Boys obtained permission to sample from the owner of the sound recording copyright (the record company) but not from Newton, the owner of the musical composition copyright. Newton, sued, and in 2002, a federal judge ruled that the three-note pattern from “Choir” was not, by itself, a protectible composition and that permission from Newton was not necessary. In other words, the three-note pattern, even though it included Newton’s rare vocalization skills, was not original enough to merit a payment and it was labeled “de minimis”
Note that according to a Sixth Circuit ruling (Bridgeport Music Inc. v. Dimension Films, No. 02-6251 (6th Cir. 2004)), this "de minimis" argument may apply only to musical copyrights, not sound recording copyrights. In the Bridgeport case, the appeals court held that using any identifiable musical sound recording segment without permission -- even as small as two seconds -- was a violation of copyright law.
If your use of the sample qualifies as a fair use. Fair use is the right to copy a portion of a copyrighted work without permission because your use is for a limited purpose, such as for educational use in a classroom or to comment upon, criticize, or parody the work being sampled. For example, the rap group 2 Live Crew's recreation of the musical tag and the opening lyric line from Roy Orbison's "Oh Pretty Woman" was considered to be a fair use because it was limited (they only used the riff once) and it was for purposes of parody.
There's a widespread myth in the sampling community that "less than two seconds is fair use." Don't believe it. What a judge and jury will feel is fair use depends on a number of factors other than the length of the sample. Generally, when reviewing fair use questions, courts are looking for three things:
- 1 -You did not take a substantial amount of the original work. - 2 -You transformed the material in some way. - 3 -You did not cause significant financial harm to the copyright owner.
Also, some courts only apply this fair use rule to the musical composition copyright, not the sound recording copyright.
In principle, it's good to know these defenses, but the obvious difficulty with all of them is that they are defenses. The time you'll use them is when someone is coming after you. There is no predictable way to guarantee that you'll win your court case based on these defenses (assuming you can even afford to hire attorneys to fight the case).
1. "What about sample CDs ..." In response to Reply # 0
What about sample CDs -- recordings that contain sounds and riffs specifically sold to be used in samplers? Most sample discs are "pre-cleared," which means that by buying the disc, you're automatically granted permission for music usage without the payment of any further fees. However, the permitted use of pre-cleared samples may vary from one disc to another. Don't assume you can use the sample in whatever way you like: Review the documentation that comes with the CD for any license information.
Most companies that makes sample discs grant the user a "nonexclusive license" to use the samples. A "license" is a grant of permission to do something (that is, use the sample in your composition). "Nonexclusive" means that you're not the only person who can use the samples. All buyers of these sample discs share the right to use them. You're not buying the right to redistribute the samples, however, only the right to use them in musical works.
If you find that your purchase of the disc doesn't grant the rights you need, contact the soundware manufacturer to see if you're eligible for a refund.
3. "RE: If you sample and do not get clearance, you will be sued." In response to Reply # 2
>Many artists have had their publishing taken because of this. >Get the sample cleared first.
First of all , you can not have your publishing "taken ". I'm not sure if you're familiar with the legal aspects of recording and publishing . If not , please let the people who have something to contribute to this post , share their experiences .....
5. "Bitch, you ain't making no money from music!!!" In response to Reply # 3
Don't be coming on here talkin' wild and trying to front. You broke and unknown like errbody else in this bitch. You a lwayer or something? Hell naw. Fall back and stop acting smart. You ain't nobody in the world, mothafucka!
6. "RE: so, can a record company based in the US sue a non-American" In response to Reply # 4
>in a U.S. court over copyright? > >Not that the ruling would matter, but it could create a >problem if said person wanted to travel to the US. > >I've wondered about this, I hope I worded it clearly.
It would certainly matter ,if you plan on releasing and distribute your work in the US , and/or plan on working "legally" in the music biz. Otherwise , it would be pretty much like a parking ticket violation sort of situation .
No offense dude but you have no clue what you are talking about. At first I thought you did but now I think you are just guessing this shit.
First off yes you can alter a sample but it has to be masked a great deal, you cant just sample it and say its your. Under copy law you are not allowed to sample voice or melodies. Second you need a mechanical license MSA license, otherwise you cant sample anything. These laws apply pretty much world wide. Europe South America. Asia etc. The only difference is other countries have different laws but the copyright laws are pretty much the same. And what this crap about publishing right??? There is no such thing as publishing rights. When a song is made it is split 50/50 between the artist and the publisher. that's it. If you sample someones music you are just going to pay out the ass in court. Your not going to loose anything. well maybe your house and your 401k but that depends on who you sample from. Whatever book you are reading i think you should reread it or have some translate it for you.
umm.. you're not entirely right.. i can't speak to courts outside of the US, but here, copyright infringement is VERY subjective... and as the original poster noted, there are different factors that go into it (i.e. there's nothing that says voices/melodies are off limits).. when deciding copyright cases, there actually is an element of "fairness" involved... copyrights don't exist to protect the actual recording/design/etc., theyre meant to stimulate and encourage creation in "the arts"... so the underlying question in all copyright cases is "is this kind of use/copying going to lead people to stop creating?" even if its unstated/unconscious.. so, if you alter a sample so much that people wouldn't recognize the original or wouldn't confuse the two, it might be ok.. but u have to remember that there are *ppl* making these decisions, not necessarily strict rules making the decisions..
and just to answer the question, yes. you can be sued in a US fed. court if you're from/in another country
7. "" Sample Clearance "" In response to Reply # 0
• Recreate the sample. Some artists have avoided paying part of the sampling clearance fee by re-recording the sampled section. You will still need to seek permission from the music publisher, but not from the owner of the master recording. How does this work? Let's say you want to use a six-second sample from "Green Onions." Instead of sampling the original recording, you play the parts yourself and re-record the music to sound exactly like the original. In that case you have not infringed the master recording. (Due to a quirk in copyright law, you can only infringe a master recording if you actually copy it -- not if you imitate it). You will not need to seek permission from the master owner, and you don't need to pay any fees to the master owner.
• Find sample-friendly copyright owners. Some copyright owners are happy to clear samples -- so much so that they encourage the process. For example, copyright owners of songs by the Average White Band and the Gap Band have pro-actively sought to promote their music for sampling. Tommy Boy Records has also made it easy to acquire clearances.
• Contact the artist or songwriter directly. If you run into problems with a music publisher or owner of a master, you may have better luck contacting the artist directly. This works if the artist still has some say or control in what gets cleared. For example, Janet Jackson , for her song "Got 'Til It's Gone" (featuring Q-Tip ) , she had to call Jonie Mitchell For example, Shirley Manson of Garbage wanted to use the line, "You're the talk of the town," at the end of a song. Lawyers for the band ordered her to drop it, but Shirley called up Chrissie Hynde, who sent the following letter to Garbage's attorneys: "I, Chrissie Hynde, hereby allow the rock band Garbage to sample my songs, my words, and indeed my very ass."
8. " Sampling "The Beattles"" In response to Reply # 0
Here is an aricle that might be of interest .....
The Wu-Tang's "The Heart Gently Weeps" and Ja Rule's "Father Forgive Me" feature not original Beatles samples, but rather reworked (or "interpolated") versions of "While My Guitar Gently Weeps" and "Eleanor Rigby" (see "Wu-Tang Clan's 'First-Ever Cleared Beatles Sample' Claim Is Incorrect") — it was hardly news. After all, these are the songs of the Beatles (and the myriad of corporations, limited partnerships and publishing companies associated with them) we're talking about here. They can't be had without a fight.
"If a recording artist wanted to build a song around a Beatles sample, they have to go through three different license holders," said Janice Brock, a spokeswoman for Sony/ATV, the music-publishing company that owns the famed Lennon/McCartney Northern Songs catalog (and as such, also owns roughly 90 percent of the entire Beatles song output). "They have to go to the original master-license holder, which is EMI Records. They have to go to the Beatles themselves, who are represented by Apple Corps Ltd., and they have to go to Sony/ATV, which represents the song itself.
"It's a fairly difficult, lengthy process, which is why most people probably don't bother," Brock continued. "And as you know, the Beatles have never granted a master-license sample."
And it's that challenge, that finality, which makes an original Beatles sample the Holy Grail of song-building. Which is probably why both the RZA and Ja made big noise about clearing Beatles samples — even if, you know, they actually hadn't. There's a certain amount of swagger that comes with even securing permission to rework a Beatles song into one of your own. After all, even that doesn't come for free.
"With a sample, it's not an issue of difficulty of clearing it. If somebody doesn't want to let you have it, you can't use it," said Todd Brabec, a vice president at ASCAP, the international society of composers, songwriters and music publishers. "A lot of songwriter/publisher deals give the writer the ability to approve usage. And in the case of a sample — using someone else's song to make a new one — it's a negotiation of what your share of all this new song's earnings is going to be. In the case of most high-profile compositions, the new songwriter forfeits all their songwriting royalties."
"If you're going to put someone else's song in your song and build a song around it, you'd have to give away 100 percent of the copyright," Brock added. "So you don't actually earn songwriter royalties for doing that. It generally goes to the original writers. In the case of Ja Rule's the song sample is an interpolation, it's not an original master use, so in turn for doing that, his songwriter royalties go to the Beatles."
So just for reworking a pair of Beatles compositions in their new songs, both the Wu-Tang Clan and Ja Rule agreed to turn over all songwriting royalties to the original songwriters — in this case, the estate of George Harrison and Lennon/McCartney, respectfully. Also, for each copy of the Wu's The 8 Diagrams or Ja's The Mirror that is sold or downloaded, the rappers will pay both the original writers and their publishing companies (Harrisongs and Sony/ATV) 9.1 cents, an amount mandated by federal law.
Is it all worth it? Well, we guess that's up to the artists themselves. But just getting to this point has been a battle. Then again, nothing in the realm of music publishing — and all its marvelous facets, including sample clearances and statutory fees — is simple.
Publishing is probably the least understood, most complicated (and most unsexy) aspect of the music industry, yet it's also one of the most lucrative: a near billion-dollar-a-year business that's as much about corporations and copyright law as it is creativity and compositions. It's the bizarre point where artists looking to make a statement crash directly into songwriters looking to make a living. And as record sales continue to bottom out, artists trying to have their music heard (and get paid) are exploring every facet of publishing ... which means it's only gonna get more, uh, complicated from here.
"Most people think of the music business only as records, but the big money — the continuing money — is in writing and publishing songs. Because now a song can be used in several TV series, a lot of films, video games, ringtones — all these different uses, not just in the U.S. but throughout the entire world," Brabec said. "And you're getting royalties every time you get one of these new uses. And it's only going to get more interesting. Record sales are going down the tubes, but I'm optimistic about all the other areas in which songwriters can exploit — in the best possible way — their songs.
"Radio and TV performances are the biggest areas, but you can make a lot of money on just having a song in a singing fish doll," he continued. "You'd rather have a singing fish doll than a million-seller, believe me."
And with more and more money up for grabs, does that mean we can expect to see less of these high-profile sample battles? It's doubtful.
"I think there's a certain quality to some of these songs, that no matter how daunting it might seem, there's always going to be an artist who wants to use a sample of them," Brabec said. "There's always going to be a desire for that timeless quality."
10. "Depends on what type of artist you are, if you stay underground" In response to Reply # 0
like releasing 12 inches, white labels, etc, they are not going to come after you. Its a waste of time. I know a lot of underground artists that have used the beatles, especially, like cats in drum and bass and dub step.
I think when you do pop and rap, things are more on the radar, because people know how much money can be made off of it. But I think you are in the clear when you are in other genres, like breakbeat, drum and bass, dubstep, house, etc ....
They dont go after cats in those genres I notice. I think they would lose money just trying, because there is so much material out there that the shit would be frustrating just to hunt down.
I hear remixes and all types of shit in house music and dubstep, and you know damn well elton john didnt give clearance for his voice to be on a dubstep mix or some mash-up.
14. "RE: Depends on what type of artist you are, if you stay underground" In response to Reply # 10
>I think when you do pop and rap, things are more on the radar, >because people know how much money can be made off of it. But >I think you are in the clear when you are in other genres, >like breakbeat, drum and bass, dubstep, house, etc ....
You're right , like I said : " If you've graduated from "bedroom producer" to producing local artists , this may be helpeful . Don't stunt your creative growth ,and be afraid to sample (espacially if you're good at it ) because you're scared of being sued . "
12. "all this seems correct but all stah is right" In response to Reply # 0
as long as you ain't breakin major bread you'll be cool. nobodies gonna sue you unless they can fill their pockets in the process. i know mad hiphop cats on indi labels, CEOs, presidents, etc. of indi's who don't clear shit. these cats put out CDs with no citations of any sample usage. shit atmosphere NEVER clears samples, though they've been sued multiple times... but them cats ain't hungry that's for damn sure.
21. "RE: " Sample Clearance "" In response to Reply # 0
I will be chiming in on this more this weekend - when not racing thru OKP - but the laws have recently changed to include sample sources - even those that are "genetically modified" (hee hee!) so even if it sounds completely unrecognizable, it's actually still considered an infringement (a lot of labels have sample hunters and remember what can be done electronically can be undone, so I do recommend highly that you get ALL samples in all shapes and forms CLEARED!)