Music sampling is one of the most frequent — and controversial — practices in the music industry. It involves taking pre-existing sound recordings and repurposing them in a new musical composition. The extent of the music sample can range from the entire chorus of a song to just a few notes.Slick Rick and Doug E. Fresh's 1985 hip-hop classic "La Di Da Di" has been sampled hundreds of times by artists ranging from Notorious B.I.G to Miley Cyrus. However, samples don’t always come from chart-topping hits; with the explosion of YouTube and other websites, using a piece of another song, whether it's recorded in a basement or a major studio, can be as easy as clicking a mouse.
When seeking to “borrow” part of another song, it is imperative to understand the legal rights involved.
A song typically involves two copyrights, one for the musical composition and one for the sound recording. As described by the U.S. Copyright Office, a musical composition consists of music, including any accompanying words. The author of a musical composition is generally the composer, and the lyricist, if any. A musical composition may be in the form of a notated copy (i.e., sheet music) or in the form of a phonorecord (i.e., cassette tape, LP, or CD).
A sound recording results from the fixation of a series of musical, spoken, or other sounds. The author of a sound recording is the performer(s) whose performance is fixed, or the record producer who processes the sounds and fixes them in the final recording, or both. In many cases, the copyrights may be registered by two different entities.
Grounds for Infringement
A successful copyright infringement claim requires proof of two elements: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original. The first element is readily satisfied if the copyright is registered with the United States Copyright Office. With regard to the second element, courts typically examine (1) whether the alleged copier had access to the copyrighted work and (2) whether the works are substantially similar. Since most songs are widely available via the Internet, most cases revolve around whether the works are substantially similar.
If you fail to obtain the proper licenses, you may not be able to release your song and may face a costly copyright infringement lawsuit.
In music sampling cases, the inquiry largely focuses on how much of the song is used. In a 2006 case involving a N.W.A. rap song that sampled a Funkadelic riff (Bridgeport Music, Inc., v. Dimension Films), the Sixth Circuit Court of Appeals held that any music sampling is too much. According to the court, "Get a license or do not sample. We do not see this as stifling creativity in any significant way."
However, in 2016, contrary to the Sixth Circuit rule set forth in Bridgeport, the de minimis exception to copyright infringement was used in the music sampling context. The Ninth Circuit ruled that Madonna’s song “Vogue” sampled a horn hit, less than a second in length, from the 1976 song called “Love Break.” The Court held that the sampling was de minimis, small enough to be trivial, and was therefore not copyright infringement.
Legal Implications of Music Sampling
De minimis or not, unauthorized music sampling can carry significant penalties.
First, the Copyright Act empowers courts to award attorney’s fees and costs to successful litigants, meaning the unsuccessful litigant will have to pay for the other party’s attorney’s fees. 17 U.S. Code § 505.
Second, for each work that the defendant is found to have infringed, the plaintiff copyright owner is entitled to receive its choice of actual damages plus the infringer’s profits or statutory damages. The Copyright Act provides for statutory damages from $750 to $30,000 per act as the court considers just; and up to $150,000 if the court finds that the infringement was committed willfully. 17 U.S. Code § 504. If the copyright owner elects, it may recover the actual damages suffered as a result of the infringement, plus any profits of the infringer that are attributable to the infringement. 17 U.S. Code § 504.
Penalties may also include payment of a publisher’s royalty to the copyright owner, meaning the infringer will have to account to the copyright owner for a determined amount of money any time that song is sold, performed, or covered.
Obtaining Sample Clearance
Given the risk of liability, it is advisable to seek written permission to use the sample. In most cases, you will need to obtain written clearance from the copyright owner of the musical composition (often a music publisher), as well as from the copyright owner of the sound recording (often a record company). Most record and publishing companies will want to hear how you will use the sample before granting permission. In addition, expect everything to be up for negotiation, including the amount of music that you can use and how much it will cost. Typical payments include both flat fee and royalty-based licenses.
Given the significant legal issues involved, it is always advisable to consult with an experienced intellectual property lawyer who can walk you through the sample clearance process and negotiate on your behalf.
If you are still confused about the copyright laws involved in music sampling or would like to discuss this matter further, please contact me, Crystal Prais.