Sampling is the use of previously recorded material within a new work. The word “sampling” was coined in the 1970s by the creators of the CMI Fairlight synthesizer, which could record and playback sounds. In the 1980s, pioneering disc jockeys (DJs) sparked an explosion of sampling as they would loop or “sample” beats from records in real time. In short time, sampling would become the bedrock of hip-hop production and a transformative tool within the music industry. Sampling though came with legal implications that required artists to acquire permission and compensate original copyright owners, a process known as “clearing the sample”. If your creativity involves sampling, you’ll want to understand the clearance process. The cost of clearing a sample can vary depending on the fame of the sampled song and artist, how essential the sample is to the new work, and what the original copyright holders deem a fair fee. Without properly clearing a sample, you risk legal consequences like lawsuits, increased fees, and takedowns or removal of your work. We’ve put together this article to show you how to legally clear a music sample step-by-step.
1. Identify the Rights You Need to Clear
The first step is understanding there are two copyrights in every recorded work: the musical composition copyright and the sound recording copyright. The composition copyright belongs to the writers of the music & lyrics or the producer in the case of a beat. “Music” in the composition context does not refer to the recorded music, but rather the underlying chord progression or musical elements – not the specific recording.
The sound recording copyright on the other hand belongs to the person that owns the specific recording of the work, also known as the "master". We explain the types of copyrights more in depth in musical copyrights explanation blog. It’s important to understand the difference between the two since both need to cleared to legally use a sample.
2. Research Who Owns the Right
The next step is to figure out who owns the two copyrights. Each is typically owned by a different person or entity. The composition’s copyright is often owned by the songwriters or beat producers of a work, while the sound recording’s copyright is usually owned by the record label that financed the song’s production. When artists own their own sound recordings, they are said to “own their own masters” in addition to the musical composition copyrights.
The best place to start your search for composition copyright owners is the performing rights organization (PROs) such as ASCAP, BMI, or SESAC. If the ownership information is registered with a performing rights organization, you can find it in their databases. The PRO may also indicate if there are multiple writers and importantly may have each writer’s publishing company listed (more on this in the next section). If you can’t find the information through the PRO, try the database at the U.S. Copyright Office (www.copyright.gov), album listing, or try an old-fashioned internet search. You have to find the proper copyright owner and their publishing company, so keep going.
For the sound recording (or master) copyright, find out which label released the record or if it was self-released. Another good place is the Soundexchange database (www.soundexchange.com) that pays out digital sound recording royalties and should have the information listed.
If you still can’t find the copyright owners, you can reach out to sample clearinghouses like Rightsify, DMG Clearances, Clearance 13 or use an attorney to help you seek out the proper copyright owners. And remember, you’ll have to find this information for each copyright owner, which might mean multiple searches. If your production requires multiple clearances, it can be wise to outsource the process.
3. Request Permission to Use the Sample
If you’re lucky, finding the copyright owners is a breeze and you can move on to the next step, which is to seek permission. I mentioned publishing companies earlier. To earn royalties for composition copyrights, all writers must register a publishing company with the PRO. The PRO pays the publishing company who then pays the writer. Publishing companies often have a request form on their websites. You’ll have to request permission from each publishing company involved. In your request, you’ll want to outline the critical details of your sample: the song information, length of use, type of use, distribution plans, and other relevant details. Your first contact can be simply to ask about permission, or you can approach with a fee in mind. If there are multiple writers, it can be beneficial to get permission from all parties before discussing fees. It’s entirely up to you.
4. Negotiate the Licensing Terms & Fees
If you’ve been granted permission to clear the sample, the next step is to discuss terms and fees. Fee structures for sample are usually one of several types: flat fees, royalty-based fees, or a hybrid of both. A flat fee is a one-time payment and common for advertising and other limited use formats, while royalty-based fees are an ongoing percentage of revenues and often used for perpetuity formats like commercial music releases. The size of the fee will depend on the various terms and conditions. Commercial releases with wide distribution may cost significantly more than limited uses. The number of content types might also play a factor. It’s heavily dependent on how the original copyright owners feel about it. For multiple copyright owners, it’s usually easier to contract for one fee structure which the publishers can then split amongst themselves.
5. Draft a Licensing Agreement
Next you’ll need draft the license agreement with your negotiated terms. We discuss the top ten essentials of licensing agreements in another blog post here. Large publishing companies have their own attorneys and legal stipulations so this a good place to use an attorney, especially if your deal is complex. Using an attorney through the negotiating phase can make drafting much easier too.
The more details in your contract and the more volume of work the publishing company has to handle, the longer the process this will take. The review and signing phase can take up to 4 to 8 weeks, but don’t be surprised if it takes even longer.
6. Document Everything
The last step is to organize and safeguard all contracts and important contracts related to your clearance. Tuck them away someplace safe and make digital copies you can keep on your backup hard drives. Leaving copies with your manager or attorney is a good idea too. You’ll want to continue to record documents regarding royalties through the life of your licensing agreement as well. Disputes go so much easier if you can get right to the substance and don’t have to fish for documents. You’ll thank yourself later!
Conclusion : Have Patience
Clearing a sample isn’t a quick process. Even a simple clearance can take 4 to 8 weeks from start to finish. If it’s a complex clearance like a film production with extensive distribution rights, you may be looking at three months or more for the entirety of your process. You should consider this timetable when clearing samples. Don’t butt your process up against a release deadline without a plan, otherwise you’ll be up the proverbial creek without a paddle. If you have questions or need legal advice, you can always reach out to us for help.
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