Last month, we shared some tips on using the Akai MPC series of samplers, drum machines, and sequencers to make masterful, sample-based music. But that came with a warning: “Don’t infringe on copyrights!” If your forte is creating beat-driven masterpieces that use other people’s work as source material, how do you ply your craft and share your art without getting in trouble? Let’s dive into the murky waters of legality and copyright ownership.
Understand copyright law
For better or worse, the law is pretty clear when it comes to using sound recordings that are owned and copyrighted by someone else. If you use someone else’s copyrighted work without their permission, says music attorney and author Michael Ashburne, you run the risk that action could be taken against you.
Ashburne points out that most recorded songs have two separate copyright owners that you must deal with – the person (or people) who wrote the composition and whoever owns the sound recording itself. “If you’re sampling a major label artist, for example, to do it correctly, you would have to approach the major label that owns the master recording and say what you’d like to do, how much of the song you’d like to sample, and so on,” he says. “You’d also have to approach the publisher of the composition and get permission there as well.”
“The law isn’t ambiguous,” Ashburne continues. “If you don’t get those permissions and you go forward, you have essentially violated the rights of the copyright owner. Most of the important cases concerning copyright have already been decided and I don’t think the landscape has changed much over the past several years. The copyright owner has great legal control over how his or her work is interpolated in other people’s work.”
Factor in money and risk
Ashburne points out that, unfortunately, licensing costs for samples can often be prohibitive for independent artists and small labels. “Given that you can record a whole album for $150 in your basement, lots of labels are faced with risk analysis of whether to clear a work or not,” he says. “If they release a work that has uncleared samples, and if the work is successful enough, then they might come to the attention of the copyright owner, and then the copyright owner has to decide whether or not to spend money chasing them, sending a claims letter, and trying to get things resolved. If a track doesn’t become terribly well known, the likelihood of a conflict is reduced. More and more indie labels are running the risk of making their music and dealing with a claim notice if it happens.”
What does happen if a copyright owner challenges a sample-based musician for using uncleared work? “Quite often, you can negotiate in that situation,” says Ashburne. “A publisher might say, ‘if you’d contacted me initially, I might have given you the license for 25%, but now I want 50% because you didn’t get permission,’ so a more aggressive demand is a definite possibility. All in all, the likelihood is that, if a copyright owner does contact you about using unlicensed material, you’ll probably be able to work out a mutually agreeable license arrangement and that will be that.”
(Editor’s note: Be aware that when it comes to CD manufacturing, you cannot get your CD pressed if your project contains any material owned by a third-party without the proper licensing. If your master contains any form of sampling, you are required to purchase “Master Use Licensing” and include proof-of-purchase with your project. Sampling a portion of another artist’s work, regardless of the length, from TV shows, movies, commercial sound bites, or music and video clips of any kind, requires licensing. Learn more about the requirements for manufacturing on Disc Makers’ “Copyrights and Licensing” web page.)
Try a sample clearing company
So you’ve sampled a track from a major label artist on your latest production and want to clear the material – but when it comes to asking the label and publisher for permission, where do you start?
“Sample clearance companies are a logical place to look,” says Ashburne. “These are not lawyers. These are people who have experience in this particular area. Their rates aren’t terribly high, and somebody who licenses material on a regular basis will be able to help you.” Ashburne also points out that an experienced clearance company can likely tell you what the cost and likelihood of success will be, given your request – especially since some major artists simply don’t like having their music sampled. “It’s better to know that up front, so you don’t waste your time and money,” says Ashburne.
Companies like DMG and RightsFlow are potential sources of help. With any company, be sure to ask around within your musician and production community. Chances are that at least one musical colleague of yours can recommend a reputable service to approach.
Check out creative commons material
Before you get too attached to a sample from a major label artist, be sure to check out music that might be free to use, with no licensing hassles to speak of. Believe it or not, there’s quite a bit of it.
“I highly recommend that artists sample music that’s been given a Creative Commons license,” says Ashburne. “The owners of any sound recording can elect to use a Creative Commons distinction that, quite often, lets other people sample that work and use it in numerous ways without contacting the original owner. While you’re not likely to find major label artists using a Creative Commons license, you will find a lot of independent works, where the creators are happy to have other people use their music as samples.”
Before you begin sampling, chopping, and recording, be sure to read the fine print, as some licenses specify whether the material can be used for commercial purposes, whether and how it can be adapted and modified, and what sort of credit needs to be given. (Check out this video for more background.) To search for music that you can legally manipulate and chop up in your own work under the Creative Commons License, explore here.
One of the biggest benefits of using Creative Commons source material in your samples it that, “It’s totally legit and you don’t have to worry about someone making a claim, since everything is designated up front,” says Ashburne. “This kind of thing is becoming more and more popular among independent artists who just want to get credit for their work.”
Try to license from another indie artist
If you want to sample “Satisfaction” by the Rolling Stones, good luck — chances are you’ll have to spend a good deal of time (and money) going through a large number of gatekeepers to even get your request considered. If you’re interested in sampling from another independent artist, though, your path could be a much less treacherous one.
“Indie artists often write their own material and own their own masters, and it’s always easier to clear something when you’re dealing with just one person,” says Ashburne. “Independent artists are also quite often more flexible and willing to license their work. It’s much easier than if you’re dealing with a major record label.”
Even if you’re working with a fellow indie artist who is thrilled to have his or her music sampled, remember to get a formal written agreement, Ashburne advises, to avoid any miscommunications or differences in expectations.
Consider re-recording the track
Since licensing a sample often involves getting permission from multiple parties – the copyright owner who holds the rights to the composition, and the owner of the sound recording, who holds the right to the specific recording – you can potentially simplify things by cutting one of them out of the equation entirely.
“Let’s say the sound recording belongs to Sony Music and it’s going to be expensive to clear, but the composition was written by a single writer who you’re comfortable approaching,” says Ashburne. “It’s entirely reasonable to reach an agreement with the writer and then create your own sound recording of the same track.”
Given that many major-label releases make use of the top session musicians and mixing and mastering engineers in the business, getting an exact duplicate may be difficult, but you may be able to come quite close when it comes to vibe, groove, and emotional impact. And though this approach definitely isn’t for everyone, given the right track, it might save you significant money and headache overall.
Keep and eye on new technology
“One of the major developments in the last few years that impacts the use of samples is a new type of music detection technology,” says Ashburne. “Some internet services can now gratuitously analyze recordings and try to identify all the samples that are in them, and then publish that information. That makes it easier for publishers who suspect that their works have been used without permission to track down potential offenders.”
Ashburne also points to a company called TuneStat as a harbinger of things to come regarding detection of unlicensed sample use. “For a fee, they will track digital publications of a song on the internet,” he says. “I don’t think that they can identify parts or samples of a work yet, but that’s the direction it’s going in. It’s going to become easier and easier for people to use analytical or technical means to monitor what’s going on around the web and see if their works are being used illegally.”
Keep up with the latest
As the digital world continues to develop, laws regarding copyright of digital media might change, so stay clued in to new developments. Your local Grammy chapter is a good place to start, and communicating with organizations like ASCAP and BMI can keep you in the loop as well when it comes to major developments that affect musicians and producers, large and small alike.
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Disc Makers’ regular contributor Michael Gallant’s debut trio album Completely received a four-star review from DownBeat magazine and a five-star review from Critical Jazz, which stated: “This, my friends, is the future of jazz. Fresh, invigorating, progressive – there are simply not enough positive adjectives to list here.” Learn more, download through iTunes, jam along with the new JamBandit app, or purchase through CD Baby. Follow Michael on Twitter at @Michael_Gallant or on Facebook.