How to Legally Sample Music

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Table of Contents

Introduction
Current Practices and Approaches
The Profitability of Music Samples
The Role of Sampling
Recommendations
Conclusion
Reference List

Introduction

The creation of art in a commercial world encounters many challenges related to ownership and finance. Music, art, and writing are considered domains where one’s uniqueness and creativity should thrive. As a result, the use of other artists’ works, in one way or another, becomes a controversial topic that explores the issues of theft, criticism, and reimagining. Sampling is one of the ways musicians can use what has already existed – it is an ‘a process through which the music composer derives one or more musical component from any pre-existing work and incorporates those with his music creation and thus forms another musical work’ (Faisal, 2019, p. 30). Explained in simple terms, a sample is a part of a song or sound recording that can be used by a songwriter in their track.

This essay aims to examine the strategies for the record industry to improve the process of licensing the use of such recordings, using legal practices and technical or commercial approaches. This change is necessary to motivate artists to use samples in creative ways, without losing proofing for themselves and their companies. After reviewing current practices, some recommendations will be given to prepare the music industry for the future of music.

Current Practices and Approaches

Copyright

The central concept that is vital for the discussion of music sampling is copyright. It is an exclusive right of the author of creative work to reproduce it – a permission that is subject to local law in terms of longevity, transferability, and infringement. Thus, a person who wrote a song, for example, can have the legal right to distribute, reproduce, perform and transform it, as well as claim ownership and attribution (Taylor, 2012). In the case of music, copyright is usually split between two parties. The first part of the song, its composition, is owned by the songwriter or the publisher (Davis-Ponce, 2015). The second part is the actual, physical recording of the song – this copyright most likely belongs to the record label or the artist (Davis-Ponce, 2015). To use a sample legally, an artist has to ask for permission from both copyright holders – get clearance. While there are some exceptions, a failure to adhere to this rule leads to copyright infringement.

This practice has some benefits and weaknesses that affect the process of creating music. First of all, copyright is a legitimate way of protecting the song’s connection to its owners. Thus, artists can prevent someone from stealing the revenue from a track or claiming it as their own. However, the enforcement of copyright also limits the creative freedom of other artists. They may not be able to contact a major label or a famous songwriter to obtain clearance for a sample (Voogt n.d.). Furthermore, copyright law does not have any strict guidelines which may lead to some issues described further. A successful example of a band using this law to protect their creative work is the case of Kraftwerk and their song ‘Metall auf Metall’ (Faisal, 2019, p. 39). The song’s sample was looped and put as a rhythmic layer on a song; the court concluded that the sampling artist could have easily recreated the sound, thus showing the unnecessary use of a sample.

Synchronisation License and Publicity Release Sampling

New problems arise if a song with a sample gets picked up for use in a commercial or any other publicity piece that endorses a product, service, or person. To get a song in a TV show or a commercial, the artist has to grant a synchronisation license to the producer of the work. This process is necessary to separate the income channels from record sales, performances and other activities that are not directly related to the work in which a selected song may appear. The process for a producer obtaining a synchronisation license is similar to that of an artist gaining permission to use a sample, although payment details vary. Some of the benefits of synchronisation licenses and sampling are similar as well – exposure, new fans and, in some cases, additional income.

However, when an artist whose song has a sample wants to grant a synchronisation license to a company, they should approach this process with increased attention. Due to the owner’s moral right to the sampled piece, they have authority over connecting their work to a commercial product. Therefore, the consent of a sampled artist becomes an addition to previous agreements. This rule is beneficial for the owner of the sample as it protects their ‘right of publicity’ and helps them control potential endorsements. Nonetheless, it makes the process of clearance much more difficult, as three steps are needed to obtain this type of permission. Similarly, the previously mentioned obscure regulations on how the sampled piece is used are present here. The combination of sampling and synchronisation licensing occurs in the career of Snoop Dog, whose hit single ‘Drop It Like It’s Hot’ uses a sample from ‘White Horse’ by Laid Back and is also a track used in an advert for Sun Drop (Mertes, 2020).

Payment Methods

Sampling clearance usually implies that the owner of the song will receive a payment for their original work. This includes both parties with copyright, and the artist who wants to use a sample often has to pay a large sum of money, especially if the sample is popular. In contrast to the mechanical license which is given for a re-recording and is a flat fee, there are no definite regulations of the amount that a sample may cost. More than that, each publisher and record label have their own methods of payment. For instance, the sampled artist may ask for a flat fee established by the agency. One may also need to pay royalties after the song is released, depending on the size of their following, sales, and discussed rates. Another option is co-ownership – the name of the sample artist has to appear in any materials related to the song, and royalties are split according to the agreement. Finally, in rare cases, the sample owner may ask for full ownership of the new recording.

The practice of paying for samples is not discussed in any country’s law transparently. It is a massive weakness of this practice, as new artists may not have the budget to sample some popular tracks. Moreover, every publisher and company can establish their own rates due to the legal right of ownership, which is likely to drive the prices up, decreasing the demand for samples (Duhanic, 2016). Nevertheless, payment for sampling ensures that the original artist will not go unrecognised. Musicians may rely on royalties when their career is not as successful, and a new wave of recognition of their hits can be a positive influence on their lives. Most of the sampling agreements are paid, for instance, Puff Daddy paid a high licensing fee to sample ‘Every Breath You Take’ by the Police in his song, ‘I’ll Be Missing You’ (Faisal, 2019, p. 35).

Bright-Line and De Minimis

As noted above, copyright infringement does not have any clear regulatory standards, which makes the legal process difficult. Here, two main approaches are considered – the Bright Line rule and the de minimis guideline. The first one is an argument that strict guidelines should be adopted on the state and local levels to ensure that copyright infringement cases adhere to a certain set of identifiers. The most popular of these ideas is that any use of samples requires copyright. In this case, any sample would be seen as illegal if its user did not obtain consent from the original owner. The second viewpoint is less rigid – de minimis implies that, in some situations, the use of samples is insignificant and does not require legal action (Eckhause, 2019). Therefore, copyright infringement can be challenged on this basis in court.

Both approaches have strengths and weaknesses, and each of them has legal precedent in Europe and the United States. Bright Line thinking removes the uncertainties of infringement and makes the process of sampling more transparent. In contrast, de minimis does not provide any instructions as to which sample needs clearance and which does not. At the same time, it may be impossible for people to agree on the standards for the Bright Line rule, while de minimis cases are considered individually, giving each problem more attention and care.

One case of sampling went through both approaches in the court, Bridgeport Music, Inc. v. Dimension Films. In it, the first ruling concluded that the de minimis exception does not work for musical sampling. Eleven years later, the verdict was reversed, and the de minimis guideline prevailed over Bright Line thinking (Di Cosmo, 2017). The audience test confirmed that the sampled song was unrecognisable in the new track – an indicator that is strongly related to the de minimis strategy.

Fair Use

The final argument that may help to resolve some accusations of copyright infringement in sampling is fair use. The fair use doctrine is a defence tactic that can be applied in court, but it cannot protect one from being sued. It has several factors that help the court to come to a conclusion; nevertheless, the characteristics of every song are reviewed on an individual basis. The first element in the purpose of the sample and the way an artist uses it – fair use protects works of criticism, commentary, education, parody, research, and news reporting (DiCola and McLeod, 2011). Next, if the new song with a sample does not generate any profit, it is considered fair use. Third, the artist has to prove that they used only as much of the sampled work as they needed to extract all meaningful knowledge from it. Finally, the harm to the original owner of the copyright is reviewed. The new song should not replace the sampled one, and the audience should not treat them as interchangeable, in terms of purchasing one instead of the other.

This approach to copyright law does not simplify the process of clearance for most artists. It is arguable that the implementation of fair use is very narrow, which means that most samples do not fall into the category. Nevertheless, it may be of assistance to some artists whose songs had samples without the original owners’ agreement. For example, Drake was able to use it to defend the use of a sample from ‘Jimmy Smith Rap,’ a spoken recording, in his song ‘Pound Cake/Paris Morton Music’ (Faisal, 2019, p. 38). The line between fair use and de minimis is slim, but the formed offers much more concrete guidelines. Thus, although it Is harder to prove, it is easier to understand.

The Profitability of Music Samples

The music industry is unstable, depending on the artists’ skills as well as the emerging trends and people’s personal tastes. Thus, many musicians rely on any source of income that they get. In most cases, artists sign a contract with a record label that lasts two or three years or includes two to three albums (Peter Jenner on the future of music, 2010). By the end of this term, creators may change their label or be dropped – their current success often means more than their overall popularity (Peter Jenner on the future of music, 2010). Furthermore, it is common for artists not to earn much money during their first year of working with a label, as they are paying off the money spent on marketing, equipment, and management (Horsfall, 2017). This process is called recouping, and some bands and individual performers can take several years to finish it. As a result, any additional source of income becomes great and stable support that creates opportunities for the future.

More than that, as musicians’ financial state depends on their audience, a sample can determine their popularity and record sales, streaming numbers and other types of engagement. For example, if a new artist samples an older, but still active performer, the latter’s sales can increase, leading to additional revenue (Schuster, Mitchell and Brown, 2019). Thus, samples are profitable not only through royalties or advance payments but also indirectly. As part of the ownership belongs to the company, artists with sampled songs have a stronger influence on their label, supporting it as well.

If all samples were free, the original artists, publishers and record labels would suffer financially, while losing their recognition and authorship at the same time. First of all, free samples mean that an artist does not get any money for creative work that they made. This greatly decreases their income and removes a major passive source of funding. While the use of samples may be high, the risk for its creators of losing their job is not influenced positively, if their labour and creativity remain in the shadow. Samples may be included in prosperous projects, where all benefits are received by the new artists and their agency, while the original creator goes unnoticed.

Next, the use of free samples does not encourage musicians to mention the original artist. Therefore, the use of a sample is unlikely to translate into increased record sales or online streams. Furthermore, this failure to acknowledge the source of the sample is a violation of the owners’ moral rights which is difficult to enforce in court (Collopy et al. 2014). As authors have the rights to attribution, their name has to be acknowledged in some form when discussing or describing the new song. Additionally, if the new song is used in publicity products, the message of the sample and its owner may be misrepresented due to the lack of communication. While it would be still possible to sue the sampling artist for manipulating the content of the sample, the lack of an active dialogue about the financial matters and the artist’s intentions can make any legal action overwhelming and challenging.

The Role of Sampling

Nevertheless, sampling remains a pillar of such music genres as hip-hop and electro. New artists may find inspiration in older songs which are often upheld for their classic melodies, beats, and lines. Some of the most sampled tracks provide people without much training with a solid basis for understanding how record-breaking songs should sound. As an outcome, the tradition of sampling acts as a teaching tool and a factor that influences artists’ tastes and industry insight. Furthermore, well-known songs have the power to invoke nostalgia and broaden the musicians’ audience. Young and old performers can gain new fans and reflect on the past. Finally, the use of samples is a good way for musicians without sufficient corporate assistance and financial support to make high-quality music.

Recommendations

Bright-Line Rule

From the analysis of the current approaches, it is apparent that the industry is challenged by a lack of structure and an outdated way of connecting artists and companies. Thus, the first recommendation is to enforce the Bright-Line thinking that every instance of sampling is subject to copyright except for fair use cases. As Horsfall (2017) notes, each creator deserves to get paid for their work, especially when their music appears on the radio or the TV. A system that would support this rule would eliminate inconsistencies in musicians’ using samples without permission and make the regulations clear from the start. One can see that there exists a variety of copyright infringement cases with differing verdicts because each of them had different judges, juries, and songs. The proposed change would remove the need to look at each case with such scrutiny and remove the risk for new artists to be met with a lawsuit for sampling any amount of a popular song.

This does not mean, however, that artists would not be able to use samples without distribution – if one’s song is for personal use and does not gain any profit, it falls under fair use. This change would benefit owners and samplers in different ways. Creators would get paid – although the rate of samples is likely to be much lower than it is now, it would produce a stable source of income. New musicians that want to use samples would know exactly what to do and whether they can afford to use someone else’s recording in their songs. There exists a possibility of fixing the costs, similar to the mechanical license, which should make sampling affordable for all artists. Thus, the rate of lawsuits should decrease dramatically, saving both parties money on lawyers and time or court meetings.

Streamlined Communication

A simplified legal system could also lead to a change in the way artists communicate with other creators and copyright owners when discussing sampling opportunities. While the technological advancement proposed as the final recommendation should help detect the instances of sampling, direct communication between parties is still necessary for commercial projects and overall agreement on the ideas expressed in songs. Thus, the second advice is to streamline the interaction between musicians that wish to use a music sample and its owners. Currently, much of the communication is done through unofficial channels or using any potential way of communication that is available (O’Dair and Beaven, 2017). A single resource for brands may be offered to help young artists to connect with the label they need.

The initiative can take the form of a website, application, or a network of online communication channels that connect artists and representatives of song owners to discuss copyright use and details of each project. Similar to blockchain use for sample detection and automatic transaction, the answers can be standardised, increasing the speed of communication and eliminating the need for manual review (Lyons et al. 2019).

This recommendation should change the way people ask to use samples. First of all, it should eliminate the waiting for an answer or the challenges of finding the right person to talk to. It is possible that a single platform or an application for receiving feedback could increase creators’ incentive for suing samples, thus also improving the revenue stream for music owners. Labels will benefit because they will have the information on all registered sample uses, which would allow them to use this data for performance analysis and the company’s future (O’Dair et al. 2016). The sharing of private information has to be reviewed according to the local law prior to devising this framework.

Blockchain for Sample Detection

Finally, the recommendation that complements the standardised legal system and simplified communication is the implementation of blockchain technology to detect sample use and complete copyright use transactions. According to Massagli (2018), such an automated process can be implemented for digital streaming services and music that is available online. As the share of digital music listening continues to increase, such a proposition should cover a major part of the excising audience (Horsfall, 2017). Similar technology can be used for streaming and downloading music. Therefore, blockchain technology can also be utilised to access a library of sample tracks for future use in music. A standardised fee and royalties system described above can help to create the rules for the blockchain and help the government oversee its implementation according to the law.

The change will affect the way people pay for their services. More than that, since the system for detecting sampling is expected to be automated, the channel of communication can be adjusted to connect the label and the artist in case of a sample detection. Here, some issues with the reliability of such technology are still present. Nonetheless, the use of flat rates and clear laws should make the integration easier.

This change will affect all stakeholders, including new artists, sample creators, publishers, labels, listeners, and the industry as a whole. Musicians who use samples will no longer worry about breaking the law by uploading a song with an uncleared sample. The publishers’ need to search for instances of copyright infringement will be removed due to the automated search of the blockchain. Artists will not worry about their income; they will be aware of the sampling that their music gets. An adjustment that may be needed in the future is the recognition of fair use.

Conclusion

Music sampling is a process that is challenged by unclear laws and outdated approaches. One of the current legal practices that should be removed is the de minimis rule that does not make the process of sample copyright clearance transparent. While it offers a small chance for artists to regain their profits, it leads to a lack of understanding of sampling regulations, decreasing one’s desire to sample music. It also encourages illegal activity and increases artists’ spending on lawyers. Innovation is essential for businesses to grow, and the lack of clarity interferes with the music industry’s ability to improve.

Sampling is a vital part of creating music for new and established artists as well as the audience. For those musicians who have recently started, samples provide a foundation for understanding the best elements of his singles. They also grant an opportunity to save money and time. For sample owners, this activity leads to an additional source of income that also serves as a recognition of their talent and hard work. For the audience, samples can be a part of nostalgia, giving them new artists to listen to and old ones to remember.

The new innovation that should be added is blockchain technology to detect sample use and initiate transactions between the sampling artist and the music owner. This initiative should simplify the process of copyright enforcement and remove the need to pursue legal action. The combination of the latest technology and a new system of payments should make each transaction easier and cheaper for new artists. It is likely to inspire more people to sample while providing owners with money.

Reference List

Collopy, D. et al., 2014. Measuring infringement of intellectual property rights – executive summary. Newport: Intellectual Property Office.
Davis-Ponce, J., 2015. Borrowing success: how to legally sample music. Sonicbids. Web.
Di Cosmo, F., 2017. Return of the de minimis exception in digital music sampling: the Ninth Circuit’s recent holding in VMG Salsoul improves upon the Sixth Circuit’s Holding in Bridgeport, but raises questions of its own. Washington University Law Review, 95, pp. 227-251.
DiCola, P.C. and McLeod, K., 2011. Creative license: the law and culture of digital sampling. Durham: Duke University Press.
Duhanic, I., 2016. Copy this sound! The cultural importance of sampling for hip hop music in copyright law–a copyright law analysis of the sampling decision of the German Federal Constitutional Court. Journal of Intellectual Property Law & Practice, 11(12), pp. 932-945.
Eckhause, M., 2019. Digital sampling v. appropriation art: why is one stealing and the other fair use: a proposal for a code of best practices in fair use for digital music sampling. Missouri Law Review, 84, pp. 371-434.
Faisal, K., 2019. Probing into copyright infringement by sampling: from USA to EU. European Journal of Economics, Law and Politics, 6(1), pp. 30-46.
Horsfall, R. 2017. The record label of the future. Web.
Lyons, F. et al., 2019. Music 2025: The Music Data Dilemma: issues facing the music industry in improving data management. Newport: Intellectual Property Office.
Massagli, A., 2018. The sample solution: How blockchain technology can clarify a divided copyright doctrine on music sampling. University of Miami Business Law Review, 27, pp. 129-151.
Mertes, A., 2020. Music in TV advertisements: 10 examples of the best and worst. Web.
O’Dair, M. and Beaven, Z., 2017. The networked record industry: how blockchain technology could transform the record industry. Strategic Change, 26(5), pp. 471-480.
O’Dair, M. et al., 2016. Music on the blockchain. London: Middlesex University.
Peter Jenner on the future of music. 2010. Web.
Schuster, M., Mitchell, D. and Brown, K., 2019. Sampling increases music sales: an empirical copyright study. American Business Law Journal, 56(1), pp. 177-229.
Taylor, T.D., 2012. The sounds of capitalism: advertising, music, and the conquest of culture. Chicago: University of Chicago Press.
Voogt, B., n.d. Understanding the music industry: music publishers, syncs and licensing. Web.

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