Even if you only use samples from sample CDs, you could still find that you need to clear these with the CD manufacturer before using them on any commercially released track — not all sample CDs are entirely free from copyright restrictions.
I am trying to recreate similar drum sounds to those used on Michael Jackson's 'Billie Jean' — the snare is tight and has bite, the hats are sharp and prominent without being piercing, and the kick is deliciously punchy. Somebody suggested to me that, seeing as the album version has a long intro, I ought to just sample the individual hits and create a drumkit from them, but is that legal?
Kevin Sebastian
If I have a Novation Super Bass Station and create a 'killer' bass patch identical to that used by someone else five years ago, I am perfectly entitled to use it myself now. Surely, it's therefore just as legal to create the same sound by sampling it off the five‑year‑old record instead?
Paul Hoffmann
Assistant Editor Mike Senior replies: The issue of sample legality is less to do with the ethics of sampling (which is a subject fraught with controversy) than it is to do with the letter of the law. Legally speaking, you're skating on thin ice if you attempt to release commercially any recordings that use uncleared samples of other people's records — in fact, even if you use such samples in a public performance of any kind! To be safe, you have to clear the use of every single sample you've used with its copyright owners, who will usually wish to be remunerated for the use of their work.
This applies no matter how short a sample is. However, the shortest samples which have been the basis of successful prosecution have been vocal and pitched instrumental snippets, and it hasn't yet been viable or worthwhile for anyone to enforce copyright on a single percussion hit. That might just be because it hasn't yet been worth the risk: I'm sure that if Britney Spears' hit 'Baby One More Time' (the biggest‑selling single of last year) had used uncleared samples from the introduction of Michael Jackson's 'Billie Jean' then Jackson's lawyers would have been on to that like a shot, given the amount of money that they would have stood to gain. Basically, you're not very likely to get into trouble over single‑hit percussion samples, as long as you're not planning on being very successful. However, should you have a sudden hit, you could find yourself in hot water when you really ought to be enjoying a glass or two of champagne...
Sampling a sound is also not made any more legal if the same sound can be had out of a synth preset. It's fine that you can use the same synth preset as was used on a copyright recording: that is within the law. However, if it can be shown in court that you have taken any sound (even if it is a synth preset) from a copyright recording rather than from the actual gear, then you are liable to lose any case of infringement against you. Once again, though, it is questionable whether it would be worth anyone's while prosecuting you, unless the financial pay‑off for doing so was substantial.
Copyright at the level of small samples can seem a little bit anal and often seems to be favouring the letter over the spirit of the law, but this makes it even more important to understand the legal standpoint if you wish to avoid all possibility of getting into any trouble when your next song goes platinum! In short, any recording has an innate copyright, regardless of whether it has any original sounds in it at all, and regardless of whether this copyright has ever previously been enforced.
Even though you can't legally use uncleared samples in a commercial release, this doesn't mean that sampling your favourite albums isn't still an invaluable way to learn about recording and mixing. In the case of 'Billie Jean', sampling the drum sounds (even the whole loop) in order to compare them with your own sound design is legally pretty much beyond reproach, and there is still a great deal that anyone can learn by directly comparing sounds in this way. It can be a sobering experience, for example, when a sound that seemed to breathe life into a commercial track sounds lifeless within the context of your own arrangement! Even when using sounds from sample CDs, it's often still worth sticking solely to this type of use — many sample CDs still retain a certain amount of copyright control over their contents, and you could find yourself getting stung if you use them without clearing sounds with the sample CD manufacturer.
Finally, uploading a few complete commercial tracks to your DAW for reference purposes while mixing your own material can also be constructive, while not violating copyright restrictions. Doing this allows you, at any time, to quickly regain a sense of perspective when balancing instruments and when tweaking the overall spectral mix of your work.
