Legal/Copyright Issues When Using Samples

Samples taken from other people's records are now big business, but if you're contemplating commercial release of a track featuring a copyright sample, you ignore the legal implications at your peril. Big George Webley investigates.

This century has brought three major innovations in musical instrument technology. Firstly, the electrification of guitars (and all strung instruments); secondly, the oscillation of tones calibrated to a standard semitone keyboard (synthesizers); lastly, the sampler (incorporating all hard disk and digital recording technology).

Sampling is now a prominent tool in most composers' and producers' armouries. If you own a sampler, this article contains vital information about the current state of the sampling copyright situation. If you don't own a sampler and you make music that uses only traditional instruments and real voices, this article could be of even more interest to you. Why? Because having your work sampled can earn you colossal amounts of money, without your having to do anything for it. It doesn't even matter if your record was a complete flop.

Sampling has just started to awaken the ever sloth‑like major record companies to the minefield of copyright clearance and the generation of more money with no outlay on their part. It's a fact that most money in the music industry is earned by people who don't make music. These people make money out of music by owning copyright. And it's copyright that is at stake here. Sampling and the legal wrangling that can be involved in its clearance can be a complex issue, to say the least, is every aspect of how it can affect you is included in this article in the plainest terms possible.

Understanding What's Being Said

The term 'sampling' in this article will mean taking a section from a CD, record or video, editing it to your own personally required length and adding it to one of your own tracks.

To you, sampling might seem the best way of beefing up a rhythm track with a loop, or adding a little colour to a chorus with a vocal sample from a rare groove record by an artist long since forgotten, but the way Big Brother in the corporate world sees it is different. He sees sampling as the unauthorised reproduction of a published work, and anyone who does it without prior agreement is in big trouble.

Big Brother in the corporate world sees sampling as the unauthorised reproduction of a published work, and anyone who does it without prior agreement is in big trouble.

Luckily, it seems that permission to use a sample is a matter of course these days, and a licence for everyone to make money, given the appropriate deal. Of course, there are some artists and copyright holders who block the use of their work, period! The Beatles are the most well known — it's impossible to get clearance for any of their work, which is strange, as they don't seem to mind the fact that there are hundreds of lookalike bootleg pub bands on the circuit playing the sum total of their career with varying degrees of competence. (Better not say too much more; they might sue.)

Beat It

Michael Jackson was another artist who would block samples regardless of how tastefully they were used — until he allowed the leather‑clad black girl trio SWV to use a substantial part of one of his truly brilliant tracks, 'Human Nature' (from the fairly successful album Thriller), for their track 'Right Here'. This just goes to show that there's always a chance.

But you never can tell. Gabrielle's number one single, 'Dreams', started its life as an underground 12‑inch vinyl dance track released on a limited pressing by Victim Records. It became a huge club hit across the country. and it wasn't long before major labels were queuing to pick it up. Eventually Go Discs took on the record and planned to release it immediately into the mainstream record market. Apart from working on photo shoots and press releases, they looked into what samples were used on the track. One of them was the sweet acoustic guitar riff from the beginning of Tracy Chapman's 'Fast Car'. The clearance process began at EMI Publishing UK. who are the UK licensees of Ms Chapman. They agreed in principle but passed the request to the original copyright holders in America, Purple Rabbit Music. They point‑blank refused to do any deal for the clearance of the sample, despite the fact that it would almost certainly become a big international hit. After months of negotiations Go Discs were forced to obtain the master tapes for the track, remove the sample altogether and replace it with a similarly textured instrumental hook (rather brilliantly, too).

How Do You Get Started?

This, and all other sample issues in Great Britain, went through the MCPS (Mechanical Copyright Protection Society) Sample Clearance department. It's are the only organisation on the planet that has a dedicated team of experts to deal with every aspect of sample clearance. Although they won't negotiate a deal between you and one of the majors, they will find out who owns the copyright of any song ever registered, what their phone number is, probably give you a name to contact, and advise you on what you're getting into. They know the going rates and type of deals being struck (we'll come to that later), how you should approach a company, or how to deal with a company that is coming after you because you went ahead and used a sample without permission. And the best bit is that this service is completely free! All you have to be is a member of the MCPS, which is also free; you need to be selling your work somewhere to qualify for membership.

As for samples off the Internet, exercise caution: you could find samples labelled 'Copyright Free' — but they might not be.

These days, organisations like the MCPS, the PRS (Performing Right Society) and the Musicians Union are very aware of all aspects of the business, even yours. You wouldn't be the first bedroom producer to have a number one record across the world. The MCPS Sample Clearance department has four full‑time staff who work closely with the Dance Repertoire and Dance Copyright department, as well as possessing accurate information about all genres of music. This is a truly fantastic service run by totally cool people who know exactly what they're talking about on all angles of the modern ways of making music.

Obviously, you wouldn't want to waste anyone's time: so how do you decide when to get in touch with the MCPS and ask for their help on sample clearance?

When you get 200 copies of your track pressed?

If a track has the potential to be released and it contains a sample, that sample should be cleared. So even if you're getting only 10 copies pressed up you must get clearance. That's the official line, anyway.

When the track gets into the charts?

If a track of yours gets into the charts — any chart — and you haven't cleared a sample, depending on how well known it is you should expect a phone call from a music business lawyer.

When you first start getting the track together?

If you're doing tracks for your own amusement then you don't need anybody's permission. But if you're getting a track together which is destined for release and which includes a sample, the sooner you apply for clearance the quicker things can progress (and it will probably be cheaper for you too).

Will the sample even need clearing?

Every sample you use should be cleared. Even if it's a millisecond long. Another official line.

Is it safe to not bother at all, as no‑one will ever notice and if they do find out, let them sue me?

There's an old saying: "Where there's a hit, there's a writ". It means that if you sample one snare beat from a dodgy old '50s record and it becomes a worldwide smash you can pretty much bank on the fact that someone, somewhere, at some time is going to notice it. The owner of the recording (who, remember, is not necessarily the artist or composer) will demand a settlement on their terms, otherwise the full weight of international law could come down on you and take every penny from what might be your one‑hit wonder.

Bargain Bin Records

But what if you sample something from a record that has no information printed on it whatsoever, and you have no idea of who the artist might be or anything to go on at all? The MCPS have no alternative but to advise you not to use it. But in reality who's to know? Ignorance is no defence in law, but if the original copyright owner does come out of the woodwork, and proves the point (take nothing on trust), there's a good chance they'll be open to a reasonable offer.

On the whole, samples can be cleared without too much fuss, once you've got through to the right person.

Some of the most notorious records using samples have involved blatant, wholesale lifting of other people's works: one example of this was MC Hammer's 'You Can't Touch This', which was based around a rap vocal over the instrumental break of Rick James' 'Super Freak'. Another example was DNA's superb backbeating of the Suzanne Vega acapella 'Tom's Diner'. So taken was Vega with the concept of this unauthorised treatment of the last track from her second album that not only did she allow its use, she also got her publisher (and the owner of the copyright) to put together a whole album of versions of said tune by the top remixers of the day. Not unexpectedly, the idea wore a bit thin and the record was never seen again. A very similar fate befell the Utah Saints: they carved out quite a career for themselves in the early '80s by grabbing huge chunks of classic hit records and making something completely different out of them — rather well on the whole, even if they do sound a little dated now.

Free Samples

A lot of the samples used by producers and artists come from breakbeat sample CDs (on sale in this very magazine). These CDs cost around £60 for audio and £100 for CD‑ROM. In theory, you don't actually buy them — you license them from the makers. For a one‑off fee, the CD producers will allow you to use as many samples as you like without the need to pay any more, even if your record becomes a massive worldwide smash hit. Looked at in this way, they're not as expensive as they seem. One thing you're definitely not allowed to do when you license these CDs is use any of the sounds on another sample CD, no matter how much you manipulate the samples.

As for samples off the Internet, exercise caution: you could find samples labelled 'Copyright Free' — but they might not be. If you do use such a sample, always get the copyright situation confirmed in writing from a source that has a real postal address. People get prosecuted for material gleaned from the Internet every day.

The temptation to use samples without permission is very alluring and with no single agency policing the situation it may seem like an unstoppable urge. But beware: the law of copyright will always be on the side of the original owner.

It's A Fair Cop Guv

So what can happen to you if you get caught using a sample without permission? Firstly, the the owner of the sample can, and most probably will, slap an injunction on you. This means that the manufacture of your record will be stopped immediately and all copies on sale will be withdrawn from the market. The next step an infringed party can take is to have all existing versions of the track that features their property (the sample) confiscated. This includes master tapes and demos, as well as all copies of the record which have been pressed and are still in the shops or at distribution warehouses. Once this has been done, the question of damages is the next thing on the agenda. Obviously, it's in a court's power to seize any and all monies earned to date from the record's sales, but more worrying is the question of costs. These can be enormous. So far, no one has been sent to prison for using a sample, but give it time.

On the whole, samples can be cleared without too much fuss, once you've got through to the right person. It's usually someone in the legal affairs department of a major publishing company (the MCPS's help in matters like these is invaluable). These people are renowned for not returning phone calls, but be persistent and friendly — remember, these are people you intend to do business with. They won't take kindly to someone leaving dozens of offensive messages on their answerphone. If they don't return your calls within a week, send them a letter outlining which sample you wish to use and send it by recorded delivery. They will get in touch, eventually.

So far, no‑one has been sent to prison for for using a sample, but give it time.

At some point you'll need to send them a cassette copy of the track containing the sample; it's also worth including the sample you're using — which they own the copyright to — on its own. The reason for this is that in the event of a bargaining situation about how much they want for the use of the sample, they will argue that it constitutes a 'substantial part' of the track. This is a very grey area and is judged on how often the sample is used in the track, how loud it is in the mix, and whether the track would still stand up withut the sample.

Your argument would be, say, that the sample only has a duration of one second and the entire track lasts five minutes, therefore the sample constitutes only 1/300th of the track. But, out of the goodness of your heart, you'll give them more than the third of 1% of the track that the sample takes up, and offer them a royalty payment of half of one percentage point. They, in turn, will counter that the sample is integral to the track and demand a 30% royalty — and so on and so on. This is what business is all about: bartering.

Copyright Made Easy

The law of copyright could literally fill 20 years' worth of Sound On Sounds, and record company lawyers know most of it off by heart. But here are some basic principles relating to samples.

There are three owners of the copyright to a sample:

• The publisher of the original piece of music.
• The record company (or film company, if the sample is from a film or video) who released it and therefore own the performance of that music (or speech).
• The owner of the moral rights to the copyright.

Points one and two are obvious: permission from both is needed, and is usually given. It's the third point that can cause problems. The moral rights to a piece of music lie, ultimately, with the original composer. These days, most music‑related contracts have a clause that states that the composer waives the moral rights to their work. Having said that, there are two issues that a composer, or the custodian of their copyright, can insist on. One is the right of 'Paternity', which means that they can insist on being fully credited as part of the songwriting credits. The other — and this is the sticky one — is the right of 'Integrity'. This means if they don't like the track, for whatever reason, or simply don't want to be sampled, they can block the use of their work. In fact, if any of the three owners of the copyright refuse permission for you to use their property there's nothing you can do about it. Two out of three isn't enough.

A curious and, frankly, unfair aspect of copyright is that it doesn't run to the person actually playing or singing the sample. So the drummer who played the 'Funky Drummer' beat for James Brown, or the bass player on Lou Reed's 'Walk On The Wild Side' aren't entitled to a penny of the millions of pounds paid in settlements and copyright clearance deals. But no‑one said life was fair.

One of the laws of copyright that wouldn't normally apply to sampling states that a person's work is protected for a number of years after their death; the actual number varies from country to country. A recent case involving the Fun Lovin' Criminals track 'King Of New York' fell foul of this situation. The track has a sample of the Deodato version of Richard Strauss' 'Also Sprach Zarathustra', better known as the '70s funky version of the theme to the film 2001: A Space Odyssey. The band are from America, the track was recorded in New York and all the relevant clearance and royalty rate of payment were negotiated and cleared with Sony Music Entertainment (who seem to own the planet). The problem arose when the record was released in the United Kingdom. In this country, unlike America, copyright lasts for 70 years after a composer's death. Unfortunately for the Fun Lovin' Criminals, Richard Strauss died in 1949, which means that his copyright is still in force in this country until 2019. This meant that, despite clearing everything they needed to in their home country, the band had unwittingly infringed the copyright of a long‑dead composer. The holders of this copyright are Peters Editions, who, once they found out, went ballistic. But all's well that ends well and, thanks to the fabulous people at the MCPS Sample Clearance department, there was no need for an injunction or seizure of assets.

In fact, in the world of sample clearance, most situations can be resolved fairly easily, just as long as you approach the problem in a businesslike manner. The main types of deal you can strike with companies are:

• A BUY‑OUT FEE

This is a one‑off payment for the use of the sample. Breakbeat CDs work on this principle.

• A PERCENTAGE DEAL

There are two ways in which this kind of deal works:

a. The owner of the sample will become co‑owner of your track and be paid royalties direct.

b. You will pay the owner of the sample an agreed royalty rate on every copy pressed.

The difference between the two is that in the second case you will still own the copyright to your track, as opposed to owning only a percentage of it. This is known officially as 'Financial Participation'.

• A ROLL‑OVER FEE

You pay an agreed amount of money for the number of records pressed. This saves having to calculate royalty payments.

Everything is open to negotiation, including whether you need to credit the source of your sample; usually this is required. Of course, you may be able to come to some other arrangement which is agreeable to all sides — sample clearance is still in its infancy. Whatever deal you strike, get it in writing and stick to your side of the bargain!