Sampling: Top Considerations for Music Makers
As any Hip Hop lover is aware, sampling is a huge part of hip hop production and has been this way since many of us can remember. Sampling an old record, especially if using the actual vinyl record, gives the production a certain soulful feeling that is hard to create absent the sample. One of my favorite sample joints is Little Brother's Lovin It. *listen below* I loooooove that record because it has so much soul. (Sidenote: 9th Wonder is a wizard when it comes to the art of sampling. Check out his documentaries, The Wonder Year & The Hip-Hop Fellow, if you haven't already.)
Many producers and artists love creating that soulful sound. To some, it has become a way to pay homage to art that was created in a different time period. For those reasons, I am often asked many questions from producers and artists about sampling. The questions often include:
Do I have to clear the sample if I'm not selling the music?
Do I have to clear the sample if I only use a small part of the record?
How do I get a sample cleared? Who do I contact?
How much does clearing a sample cost?
How long does it take to clear a sample?
The purpose of this blog is to answer those questions and provide some clarity for the producers and artists out there that love and appreciate the art of sampling.
"It's a mixtape, I'm not selling the music so do I really have to get it cleared?"
Short Answer: Yes. Many think that if the music isn't being sold then you don't have to get the samples cleared. I hate to bore you but, according to copyright law, a copyright owner has the exclusive right to: reproduce the work, distribute copies of the work, perform the work publicly, create a derivative work (which is what sampling is) and publicly display the work. These rights are exclusive, meaning that no one other than the copyright owner has the right to do any of those things without the permission of the owner. The law does not state that a copyright owner's exclusive rights don't apply if the person using the copyrighted content (by way of creating a derivative work, etc.) intends to distribute it for free. Furthermore, even if you are releasing the song for free, you can still benefit financially from the release of the song by way of increased notoriety that lead to paid shows, merchandise sales, etc.
"What if the sample is less than 4 seconds?"
There is a common myth that if the sample is really short, then it doesn't constitute copyright infringement. This is incorrect as well. It is copyright infringement if you are sampling music that you don't own, whether you use 3 seconds or 15 seconds of the work.
"Okay so, if I have to get the sample cleared, how do I do that?"
In order to clear the sample, you have to get the permission from the copyright owners of the song. Sounds simple right? Maybe...maybe not. The complex part is that there are 2 types of copyright in each song:
What's the difference? The music composition consists of the melody, lyrics, harmony and rhythm of the song. The sound recording is the actual performance recording of the music composition.
Often times, the copyright owner(s) of the music composition is different than that of the sound recording. Copyright owners can include artists, songwriters, publishing companies, record labels and, if any of the original owners are deceased, they can also include family members or heirs. The music composition is typically owned by the songwriter(s) or publisher(s). The sound recording is typically owned by the record label or artist. Both the owner of the music composition and the owner of the sound recording must consent to your use of the sampled song.
When reaching out to the copyright owners, they often want to know specifics as to how you plan to use their song: how long is the sample? Is it a dominate part of your song? What is the message of the song? Etc. Sometimes the copyright owners may want to hear your song before deciding if they will allow you to use the sample and/or before deciding the fee or publishing/royalty percentage that they will request. This happened when MMG artist, Wale, was going through the process of clearing the sample used in his song, Girls on Drugs. Wale put an explicit version of the song on his Festivus mixtape. The song was well received so Wale wanted to put the song on his album. Apparently, the copyright holder of the sample required the song to be "cleaned up" in order to clear the sample. For that reason, Wale's The Album About Nothing contains the clean version of Girls on Drugs.
"How long does it take to clear a sample? How much does it cost"
One of the many issues with clearing samples, especially for indie artists, often lies in the amount of time that it takes to reach all of the copyright owners and the fee to do so. Finding and actually getting in touch with the copyright owners can be a daunting task, especially if major record labels and publishing companies are involved. This process can significantly effect the timeline for releasing your project.
Once you finally reach them, the copyright owners typically request a fee in exchange for giving you the license to sample their song. The fee typically consist of an upfront (or clearance) fee and a percentage of the revenue/royalties generated by the song. The clearance fee can range from a couple hundred dollars to thousands of dollars. Some owners may request to be a co-owner on your song and some may even demand complete ownership of your song in order to clear the sample.
In conclusion, this blog isn't meant to discourage you from sampling. As I stated earlier, I love sample production! I just want you to be aware of the things to consider when sampling and the necessary steps to take to get those samples cleared.
Until next time, happy sampling to my producers that are reading this. If you want to keep up with me and all of the new content, follow me on IG, Facebook & Twitter -- @ShadeEsq
The materials contained in this post are general, were prepared for informational purposes only and should not be considered legal advice. Transmission of this information is not intended to create and does not create an attorney-client relationship. The services of a competent professional should be sought if legal or other specific expert assistance is required.