Setting the Sample Example: Legal Tips for Sampling Success

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A guest post by Dan Chisholm, Lawyer at New Zealand’s newest Entertainment Law Office, Trollope & Co.

Some of the most memorable music of our time has included the clever use of samples – think The Verve’s ‘Bittersweet Symphony’, Beyonce’s ‘Crazy in Love’ and Vanilla Ice’s “Ice Ice Baby”. Musos, rappers, DJs and producers often wonder where they stand when it comes to sampling others’ music. Often, we’re told that if a sample is less than a few seconds in duration you’re good to go, but is that true?

Before you go adding the Rocky theme song to your next YouTube mashup, here’s quick rundown of the laws around music sampling:

Getting sample happy:

The early days of sampling saw musicians incorporating existing work into their own without permission. Rap artists in particular began to make significant amounts of money. Unsurprisingly, copyright owners were soon suing left and right as they chased down their rightful piece of the action.

Stop. Collaborate & Listen! A crash course in music ownership

Legally, copyright owners have exclusive rights to reproduce, publish, communicate and adapt their work. Anyone looking to sample the work of others needs to obtain permission.

It’s important to note that there are two distinct forms of copyright ownership – ownership in the musical works (i.e. the composition) and ownership in the sound recording (i.e. the recording itself). Often, these owners will be different.

A publishing company for example may have been assigned the rights in the artist’s musical work, whilst a record label may own the sound recording. You will need to obtain permission from both owners prior to sampling. Trying to obtain permission after the work has been released leaves you with no bargaining power!

It’s all about the vibe:

Do you need to obtain permission to sample every piece of music regardless of size? Forget breaking the sample down into seconds, the general test revolves around whether a “substantial” portion of the original work has been used. It is mistakenly believed that sampling a small portion cannot be deemed substantial.

The real test, however, is whether or not the sample captures the “essence” of the earlier work by being an important and distinctive feature of it. Just a few notes may equate to form an important and essential part of a song.

In a nutshell: If in doubt, don’t do it!

It’s common industry practice to clear musical samples from the relevant copyright owners. The laws around sampling apply to everyone in the same way, but particularly if you’re an artist with a large fan base and are releasing material globally, you should always be wary of using samples without permission.

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