What is “Sampling” ? Let’s say you are preparing to go in to the studio, or are already in the recording studio and working on your next release, and you or your producer come up with a great idea; “Let’s sample that horn lick from George Clinton’s famous album.” In fact your producer says that he can take a particular “signature piece” from a famous musician and can then further electronically alter it in any number of ways before he makes it a part of your new recording.

As the cost of digital samplers has decreased, sampling of other recordings by artists in the studio has become more affordable, accessible and commonplace. Back in the early 1980s when sampling was making its first debut, disc jockeys and mixers were merely piecing together different recordings to create a unique dance atmosphere. In more recent times, sampling has made its mark in the music world.

As far as the legalities are concerned sampling isn’t that easy. The sampling of what may even be considered inconsequential pieces of another artist’s recording can cause a tremendous legal stir. As producer of the new recording, or as the artist, your concerns should be: Do I have to ask permission before sampling? Do I have to pay anyone? Is the sampling so small a use (de minimus) that permission is unnecessary?

Uninformed artists, or producers, who utilize an unauthorized sample may find themselves in the midst of a lawsuit for copyright infringement, trademark infringement, palming off, unfair competition or violation of other legal theories. The record label that has signed the artist, or that has licensed the master recording, can similarly be found in the midst of the same suit and, of course, they will probably hold all your royalties, due to the indemnification clause.

Generally, if a third party Record Label is interested in releasing a new recording that contains a sampled recording, the first thing you should know is that liability (if any) for an infringement lawsuit against the Record Label will usually end up being the artist’s liability. In fact, any major record label interested in recording, licensing and/or distributing your product, will most likely have language in the contract very similar to the following:

In the event that any master recording delivered hereunder embodies in whole or in part any so-called “digitally or otherwise sampled segments of existing sound recordings” (“Sampled Sounds”), ARTIST shall promptly furnish to the “Record Label”, as required elements of delivery, the following:

(i) An itemized list of all Sampled Sounds embodied in the applicable master;
(ii) Written releases (in a form acceptable to “Record Label”) from all owners of sound recording copyrights in the material from which such Sampled Sounds are derived;
(iii) A written indemnification by ARTIST in favor of “Record Label”, indemnifying “Record Label” against all expenses, damages and other claims in connection with the use of Sampled Sounds in the masters.

What the above clause means in plain English is that the Artist(and/or production company) shall provide a list of all sampled recordings and shall seek and obtain written releases granting the Artist or production company permission to utilize the sampled recordings. More importantly, the clause also obligates the artist to be responsible for ultimately paying any costs and expenses incurred by the Record Label for any defense, including attorneys fees, against other parties who may claim that the sampled recordings were used without the permission of the original artist or recording company.

Similarly, the producer that is contracted by a hiring party, be it the production company or artist, is usually, and should be required to obligate himself to that hiring party for the same type of language the artist or production company must provide to the record label.

Do you really need the permission of the original artist, production company, or record label? Interpretations of the relevant laws leads one to unclear, and most importantly, uncertain results. Some lawyers say no, it is not necessary to seek permission. Others say you must seek permission.

The Federal copyright laws protect (among other things) an artist’s right to the public performance of their work, derivative works, licensing and the duplication of their work. That protection is only granted for that artist’s work. The law is basically unclear with regard to “sound alike” recordings.

If the producer takes three to seven bars of music, a yelp, a horn lick or even a snare riff that has been rearranged, recombined, or altered, is that enough of a sound to be a copy of the original artist’s actual sound, or has the sample become a new “sound alike”? Where does one draw the line?

Those artists seeking a free pass would want the original artist or record company to agree that sampling is merely like taking a sample of some product. They would state that the taking, if any, was so small as to be imperceptible and unprotectable by law. Generally, the artists who find themselves in court are those who have taken the distinctively recognizable sound, “essence”, or “hook” of another artist’s prior recorded work.

Asking for and obtaining permission to use that horn lick avoids a lawsuit. A disadvantage in asking for permission is the possible cost for the permission or the possibility or receiving no permission at all. A lack of permission mandates reunifying the time and perhaps the addition of tracks in order to replace an unlicensed sample. The cost of paying for even a small percentage of a mechanical license would clearly cut into a portion of the recording artist’s income.

As an example, in the case of M.C. Hammer’s “U Can’t Touch This,” which repeats a portion of music from Rick James’ “Super Freak,” the music publishing royalties were split 50/50 with Jobete Music, who owned the musical passage. But if you think that’s a high price to pay, you may opt to go ahead and use the sample without permission. That tactic landed the Beastie Boys in court, facing a $5 million dollar law suit. The case was settled out of court.

Furthermore, if you ask for permission and it is denied, and you use the sample anyway, you have given the plaintiff in a suit against you, some evidence (possibly an admission against interest) to establish your intentional and willful infringement (if infringement is established at all).

The many questions regarding the legitimacy and legal implications of sampling are only recent surfacing (and being answered). The decisions do not quite establish any one black and white answer. If you do decide to sample, think long and hard before proceeding without permission.

By: Bruce Colfin and Jeffrey Jacobson
© 2007 Jacobson & Colfin, PC

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