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AS YOU RECORD YOUR HIT SONG, PLEASE DO NOT FALL PREY TO THE “FOUR NOTE” OR “FIVE SECOND”OR “ONE BAR” MYTH ABOUT MUSIC SAMPLING – YOU WILL FIND YOURSELF DEFENDING AGAINST A COPYRIGHT LAWSUIT

Updated: May 28

By Manotti L. Jenkins



In my nearly 20 years of practicing intellectual property (IP) law, I don’t believe I have heard a more widespread myth than the erroneous view that it is legally permissible to sample some very small portion of a copyrighted song without permission. Wrong. Although I am not certain about the genesis of the myth, I assume it finds its origin in a misunderstanding of the “fair use” defense in copyright law as applied to music sampling. In this post, I will attempt to eradicate that myth and clarify the misunderstanding of the “fair use” doctrine, while also imparting some important principles and historical information about music sampling.


First, a little background. Sampling occurs when an artist incorporates portions of a previously recorded song into a new composition. Sampling without permission is a blatant act of copyright infringement, which can subject the bad actor to hundreds of thousands of dollars in damages. Personally, I am a fan of sampling, especially when legally done the right way. Probably my favorite uses of sampling in the hip hop era are the electric piano riffs from my client Bunny DeBarge’s largely unknown song, “A Dream,” that are substantially used in Tupac’s “I Ain’t Mad Cha” and Blackstreet’s “Don’t Leave Me,” and Heavy D’s sample of the JB’s and James Brown’s “Pass the Peas” in his song, “The Overweight Lover’s in the House.” I appreciate sampling’s ability to keep alive many of the old school classics. And while I digress, this departure provides a good segue to allow me to dismiss another popular myth – that sampling originated with the hip hop and rap genres in the early 1980’s. Also wrong.


The roots of sampling go back as far as the 1940’s, when early sound pioneers Pierre Schaeffer and Pierre Henry began collaborating in using disc cutters to create what was then considered “revolutionary” sound collages, such as trains and mechanical noises. In the early 1960’s, musician and composer James Tenney built on that practice when he created his “Collage #1” recording by clipping out portions of, playing with the tempo of, and rearranging a then existing popular song, “Blue Suede Shoes,” by Elvis Pressley. But even prior to that, in the mid-1950’s, musicians Dickie Goodman and Bill Buchanan recorded a song, “Flying Saucer,” which comprised a playful mashup of rock and roll hits. Goodman and Buchanan later recorded other popular songs based on a similar formula, consequently inducing some of the earliest copyright infringement lawsuits involving music sampling. Notwithstanding that history, it cannot be disputed that hip hop and rap have taken sampling to a new level, with the concomitant proliferation of copyright infringement lawsuits against any impermissible uses.


When handled properly, sampling can be very lucrative for the creator of the newer composition. The process of obtaining permission from the owners of the sampled music is known as “sample clearance.” Sample clearance, which comes in the form of a license, must be obtained from two copyright sources and for two forms of copyright: (1) the sound recording copyright, which is usually owned by the record company; and (2) the underlying musical composition copyright, which is usually owned by the songwriter or the publishing company. There are two types of sampling licenses: (1) a flat fee or “buy out” license, which will give you the clear rights to use the sample by paying a flat fee to the copyright owner; or (2) a license based on a percentage of the mechanical royalty rate, which is calculated from the number of records using the sample that are manufactured. Because there are no statutory provisions or common law principles governing sampling fee amounts, the copyright owners can charge whatever they want to charge to license the sample. Flat fee licenses can range from $500 to $15,000 and mechanical royalty rates licenses generally range between 2 cents and 5 cents per record pressed. The license fee amounts vary depending on (1) how much of the sample you want to use (a quarter second is considered a minor use, while five seconds is considered a major use); (2) the actual music you intend to sample (the chorus from a Michael Jackson song will cost more than an obscure drum beat from a Rolling Stones song); and (3) how you will use the sample in your song (it will cost more if you intend to build your entire song around the sample than if you intend to give the sample only minor significance).


Now, back to the primary myth. It does not matter whatsoever how small of a portion of a sample of someone else’s music you use in your song; if you use the sample to make money and without sample clearance, there is a good chance you will find yourself in court defending against a lawsuit. One note from a copyrighted sound recording used without permission can land you in federal court. The test for infringement is whether the sample is “substantially similar” to the original and the judge and jury will make that finding based upon their listening ears. As I discussed above, I suspect this myth finds its genesis in the misunderstanding by many people of the role of the “fair use” defense in copyright cases involving music sampling. For sampling to be considered “fair use,” the threshold determination must be that the sample was used for criticism, comment, news reporting, teaching, scholarship or research. More often than not, sampling is used exclusively to contribute to the money-making capability of the overall recording, which the law does not recognize as a “fair use.” Only after it is determined that the sample was used for one of the above-referenced purposes, then and only then will the law venture to consider, as one of the “fair use” factors, the amount and substantiality of the sample that was used.


So, as you proceed to create the next major hit song and you want to sample “just a note or two” from an old Beatles, Supremes, or Temptations hit, please hire an IP lawyer and obtain clearance. Odds are you will gain far more in the long run and, indeed, by retaining a law office of skilled negotiators, you could end up paying close to nothing for the use.

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