One of the most colorful and exciting practices in modern pop music is the way genres can cross-pollinate, influencing each other and borrowing elements from seemingly distant musical cousins to create something new and exciting. The most iconic and well known way pop music has evolved and built upon its past in the last 50 years is the invention of Hip Hop/Rap and the method of building tracks and songs off of samples or sampling.
But what exactly is a sample? What are the legal implications of releasing music that uses samples? And what are ways around sampling if the copyrights necessary are too expensive, or flat out off the table?
A sample is a copy of an already existing sound recording edited into, or forming the basis of, a new sound recording. Originally created by physically making loops of cassette tape, sampling is now done on physical sampler machines (some producers like to collect old ones from the 80s and 90s) or in digital audio workstations such as ProTools or Logic.
Hip Hop was created by DJs in New York City who would mix together elements of multiple records, such as the drum beat from a James Brown record and the melody from a classical record. By manipulating the playback speed, different effects could be achieved.
This was all well and good at block parties and events, but when Hip Hop became commercial and the records began seeing millions and millions of copies, artists like The Beastie Boys record label Def Jam began fielding lawsuits a plenty for the artful samples that composed a majority of their recordings.
HOW TO LEGALLY GO ABOUT SAMPLING A SONG
Ask and Pay
This first route is the safest and the one guaranteed to keep you out of legal trouble. In order to legally sample a recording you need to obtain permission to use the copyright for the Master Audio Recording itself (usually owned by a record label, such as Republic) as well as the copyright for the song as a composition (usually owned by a publishing company, such as Glassnote). Both of these entities have the right to grant you permission or to reject your request.
If they reject you, you may need to consider one of the options discussed later in this article.
If they both say yes, you will be welcome to use our sample in your recording for a nominal fee of their choosing. Depending on the popularity of the song, artist, and what part of the recording is being used, the company can as for an up-front advance anywhere from $1000-$100,000 or more. They will also usually want a cut of your song in perpetuity, maybe a 15-20% royalty for using a beat or melody throughout, sometimes even up to 50% if the sample includes the original song’s most important or recognizable part.
As you can see, sampling is expensive business, but the more obscure and unknown the source material is, the better your chances of being approved and being able to afford it. So, sorry, but sampling Prince may never happen in this lifetime.
WHAT TO DO IF YOU CAN’T SAMPLE: INTERPOLATION
The next option if you, say, want to use a sampled melody but can’t afford to pay for the copyright, is a method called interpolation or replay. In this situation, you don’t use the actual snippet from the original recording, but instead play the desired melody or beat yourself using a synthesizer, drum machine, or whatever instrument necessary.
In this situation you still need permission, and probably still have to pay, but this time you only need permission from the owner of the songwriting copyright, either the artist or publisher. These permissions tend to be easier to receive and cost less than getting access to the master. Then you are free to play the melody, or beat, or musical arrangement in your new work.
For example, when Michael Jackson quoted lyrics from “Soul Makossa”, by Manu Dibango, in his hit “Wanna Be Starting Something”, he did not sample from the 1979 recording, but recorded himself and background singers performing ‘ma ma se, ma ma sa, ma ma coo sa” about forty times in the outro of the song. Michael and his team did not ask for permission to interpolate his composition however, and so when Dibango sued he won and was awarded payment and royalty shares on the MJ hit.
But when Black Eyed Peas wanted to use the same part in their song “Clap Your Hands”, they asked for permission and paid to interpolate the same part. And when they did they even took it a step further, changing the articulation, stretching it out over a longer period of time than the original composition does, and only using it once. Using it for such a short time and adding transformational value to the part makes their usage more fair than MJ’s.
ONE MORE OPTION FOR THE RISK TAKERS – FAIR USE
Since the Black Eyed Peas transformed the part by manipulating how it is performed in multiple ways, they may have actually gotten away with the interpolation without asking and paying, under a concept in law called Fair Use, but it is by far the riskiest option and exposes you to possible legal action, no matter how short the sample.
Fair Use allows for portions of copyright material to be used for limited purposes, mainly for educational, critical, or parodic purposes. It doesn’t specifically protect producers or musicians when using uncleared copyrights, but there are ways of making your usage as fair as possible.
When the usage is relatively short. A four second sample is more fair than a thirty second one. But be careful, despite what people say and believe, there is no 10 second or 5 second rule.
When the usage does not damage the copyright holder. Using a sample of a grindcore drum break in a Hip Hop song or vice versa is more fair than grafting a famous Hip Hop hook into your Hip Hop track.
It is not the most important or creative part of the new work. (The Verve had to relinquish 100% of the royalties to “Bittersweet Symphony” because the one violin line they lifted from a rather non-noteworthy Rolling Stones song is the basis of the entire song and repeats hundreds of times throughout the new recording.)
Most important, when you change details about the sample to add transformational value by manipulating the speed to be slower or faster, re-creating elements of the sample yourself (interpolation), or adding further instrumentation or a countermelody.
A FINAL WORD ON SAMPLING, INTERPOLATION, AND FAIR USE
There are so many wonderful ways to create music these days, and spring-boarding off of classic vibes to make new sounds is totally cool if you take the right precautions. Fair Use is a thing, but it’s a slippery slope, and if you want your music to go far, you will ask for permission and at least interpolate using your best skills and practices.
These days when you upload a single to a distributor for Spotify or iTunes, the form asks you whether or not the song contains a sample, so be truthful, even if you lie there are programs with algorithms that can scan through databases and find copyright infringements.
It’s always better to ask and pay. And if you really want to rage against the industry and sample without asking or paying, look into the vast troves of public domain folk and blues recordings in the Library of Congress. They’re free, they’re thousands of weird and cool funky recordings, and you may find something that inspires you— free of charge.
Working with a knowledgeable music promotion team will help you as you navigate the weird world of music copyrights. There’s a lot to know – And Planetary can help! Call us at (323) 952-5050 or contact us here to let us do the dirty work, so you can get back to focusing on the music.