DIGITAL SAMPLING

The controversy surrounding digital sampling has generated quite a bit of misunderstanding among musicians. For instance, many musicians are under the misperception that it is OK to sample anything less than 4 bars of another song. In fact, sampling just a few notes may be enough to cause legal problems.

IS DIGITAL SAMPLING LEGAL?

Most legal experts believe the issue of digital sampling was resolved in 1991, when a Federal District Court ruled that Biz Markie's use of a few notes from the chorus of Gilbert O'Sullivan hit song "Alone Again, Naturally" amounted to copyright infringement. In addition to citing to the Ten Commandments ("Thou shalt not steal"), the judge barred any further sale of Biz Markie's album and referred to matter to the U.S. Attorney for possible criminal prosecution. Another court later ruled that sampling phrases like "ooh" "move" and "free your body" may also be enough to find copyright infringement.

Digital sampling may not just violate copyright laws. Failure to obtain permission before sampling a distinctive voice may also violate certain state laws recognizing that famous personalities have a "right of publicity." A few years ago Tom Waits successfully sued Frito Lay for using an imitation of his distinctive vocal style in a commercial. Bette Midler also won a lawsuit against Ford Motor Co. for imitating her voice in a television commercial without her permission. Sampled artists may also have a claim for unfair competition if their voice or "persona" are used without permission.

IS DIGITAL SAMPLING PROTECTED AS FAIR USE?

So far, no court has ruled on whether digital sampling may be protected as fair use. However, legal experts agree that for a sample to qualify as fair use, it must be used for purposes such as parody, criticism, teaching, news reporting, research or some non-profit use. Using a sample merely because it sounds good is simply not enough to qualify for protection as fair use. [Note: For more information on music and fair use, click back to my recent Fine Print column on the fair use exception to copyright infringement.]

OBTAINING SAMPLE CLEARANCES

To legally sample a song, it is necessary to obtain permission from the copyright holder of the sound recording (usually the record company) and the copyright holder of the composition (usually the song's publisher). Permission from the owner should also be sought when sampling a television show or motion picture.

Artists should obtain permission from all copyright owners before any song containing a sample is distributed publicly. Waiting until after your record is distributed can result in lost income, expensive legal fees and the removal of your record from the market. Releasing your record before obtaining clearances also reduces your bargaining power if you later attempt to negotiate a sample license.

HOW TO CLEAR A SAMPLE:

Music attorneys often clear samples, although this can be somewhat expensive. Clearance agencies are usually cheaper, and many are familiar with licensing samples. Record companies can also clear samples for their artists, but the cost of negotiating and obtaining clearances will later be deducted from any recording advance or royalties the artist may be entitled to.

Of course, you may decide to obtain a sample license yourself. To clear samples, it is necessary to write to the record company and publisher of the sampled song. ASCAP or BMI will likely have the publisher's current address. In your letter, ask for a quote for a clearance fee, and identify the song you are sampling and how much is used. Don't forget to include a tape of the original song, as well as a copy of your unreleased song using the sample.

In granting a license, a record company may seek a flat-fee of anywhere from $100 to $5,000, or possibly more. Record companies may also seek a royalty (from $.01 to $.07 per record sold) as well as an advance. Music publishers may also ask for a flat fee or a percentage of income from the new song, or both. Depending on how the sample is used, some publisher may also demand a percentage of copyright ownership in the new composition. Because copyright owners are not obligated to grant clearances, you may have no choice but to comply with the owner's asking price, or remove the sample. Of course, a copyright owner may also deny permission to use a sample.

Different factors affect how much money a record company or music publisher will want for a sample. Price may vary depending on how much of the sample is used, how many other samples are used, whether your song has already been released, and the type of rights a record company is willing to grant. For example, a music publisher may choose to license a sample for sound recordings only. In this case, you would be unable to use your song containing the sample in a motion picture, video or CD-Rom without an additional license from the music publisher.

Finally, to keep costs down, some artists choose to create their own samples by first recording their own "cover" version of the sampled song. By using this technique, an artist avoids having to obtain a clearance from the original record company. Nevertheless, when creating your own sample based on another song, you will still need to obtain a clearance from the music publisher of the original composition.

CONCLUSION:

Scratching and sampling has created some of this century's most vital and expressive music, bridging the gap between popular and experimental composition. Nevertheless, using a sample without permission violates two copyrights - the copyright in the sound recording and the copyright in the underlying composition. Because the cost of legitimately clearing samples cuts into an artist's record advance and royalty rate, it is understandable why many young artists later create their own samples in the studio after they become established acts.

While a sample of 1 or 2 notes is OK only if it is taken from a non-essential or commonly used phrase, another sample of 1 or 2 notes may be infringing if taken from a musically significant part of a song. Thus, taking the recognizable word "Help" from the Beatles' song, or appropriating the distinctive style of an artist's performance, such as James Brown's unique scream, would constitute an infringement. Because there is no hard and fast rule on what is safe to sample, the best advice is "When in doubt, obtain a license."

Alan Korn
Law Office of Alan Korn
1840 Woolsey Street
Berkeley, CA 94703
Ph: (510) 548-7300
Fax: (510) 540-4821
email: Alan Korn
www.alankorn.com