At OurStage, the Hip Hop, Alternative Hip Hop, and Rap/Gangsta Rap Channels are chock full of talent so there is nothing sadder than removing a great song because an artist used an unlicensed sample. Copyright law is confusing, and the laws concerning sampling are changing all the time. Hopefully, this post will clear the air so that our artists can keep on making great music without ending up on the wrong side of the law.
Myth #1: Artist Permission = Legal Coverage
Many people believe if an artist grants permission to use a sample of their music then all the legal bases are covered. This is half right. In most cases, you do need to get permission from the song’s copyright owner. However, you also need to get permission to sample from whoever owns the actual sound recording. Usually this is the artist’s record label. There have been cases where artists have only needed permission from the owner of the sound recording copyright and not the owner of the song’s copyright (Newton vs. Diamond), but it is best to cover your bases and get permission from both.
Myths #2: The Five Second Rule
According to an industry urban legend, if you sample a small enough portion of a song — some say 5 seconds, some say 3 seconds — you don’t have to get permission from the sound recording copyright owner or the song copyright owner. The truth is, there is no magic number and this is still very much a gray area. In 2004, a Cincinnati court ruled that rap group NWA were guilty of copyright infringement by sampling a two second guitar riff from the 1975 George Clinton song “Get Off Your Ass And Jam.” The judges stated in their ruling that getting permission from the copyright holder of a sound recording is always required for sampling, no matter how small the sample. While not all courts have followed suit in strictly enforcing copyright law, it’s better to secure the proper rights now then damages later and legal fees later.
Myth #3: Standard Rate for Sampling
While there is a standard fee for covering songs, there is no standardized fee for sampling. The copyright and sound recording owners will decide usage fees on a case-by-case basis. As a general rule, popular songs cost more to sample.
So what’s an aspiring producer or MC to do? Well, you may not be able to use that P-Funk sample of your dreams, but there is plenty of material out there by artists who allow and even encourage sampling of their work, no legal fees required—you just have to know where to look. Fortunately, you don’t have to look to far. The OurStage Prod./DJs/Beats Channel sponsored by PMP is full of artists who are looking for talented MCs to rap over their original beats. OurStage is also home to artists like Arik Hayat and Rhyn who have made their music available for remixing with Creative Commons licensing. Artists who license their music with Creative Commons Attribution, Attribution Share Alike, Attribution Non-Commercial and Attribution Non-Commercial Share Alike licenses have already granted you permission to remix and build upon their work.
Another great resource for remix ready material is ccmixter.org. ccMixter hosts samples, acapellas and instrumentals licensed under remix friendly Creative Commons licenses, as well as remixes that were created using the material posted on the site. Freemusicarchive.org takes a slightly different approach, offering a collection of Creative Commons licensed music created by independent radio stations
Before you start mixing, remember that a Creative Commons license means, “some rights reserved,” not “no rights reserved.” Make sure you read the license for each song or sample carefully, as each Creative Commons license is a little different. Also, think about whether your music will be for commercial or non-commercial use, as some Creative Commons licensed music is available for both while other music is available for non-commercial music only. If you are posting a song on your Website to show off your skills, then it is a non-commercial use. But, if you are selling your songs on iTunes, then it is a commercial use. There is a search feature on the Creative Commons Website that can help you to find audio based on whether it is for commercial or non-commercial use.
For more info about Creative Commons, visit their Website here or read last weeks Creative Commons OurStage Blog post here.
This article hardly covers anything.
Do the words Fair Use even pop up once?
Nothing on sampling as an artform.
Nothing on the bullsh!t replicheck software/hardware that most duplication/replication houses use that automatically search for “sampled” material – but which are not accurate at all.
Creative Commons is a good idea, but as a crate digger, I have to say, its just not the same. There’s a reason why people sample professionally mastered music – its because it has a quality to it that you can’t get elsewhere. I can have my sax and trumpet players come in and record – but theres no way I’m getting the feeling of horns recorded in a dingy 60s studio.
And what about the White album? No one would touch Beatles’ material for fear of lawsuits, and then here comes Danger Mouse, and he blows up off it. So if you want to sample – go ahead. If you end up in court, it probably means people are listening.
Philly Slick,
Thanks for your feedback! These are all great points and things I’d like to talk about on the blog in the future. It would have been impossible to tackle a comprehensive history or sampling as an art form and its legal consequences in one blog post so I decided to focus this post on an issue close to many artist’s hearts, how to avoid lawsuits when sampling.
Fair use can and has been used in defense of sampling, but is extremely subjective. If the copyright owner of the recording you sampled doesn’t think your use of their work was fair, they can still take you to court. While artists like 2 Live Crew have won copyright infringement cases with a fair use defense, many others have lost. The only way in today’s current legal climate to be 100% sure that you will not be brought to court is to get permission from the copyright owners for your samples.
The point of this post was not to condemn sampling. Using old music to make new music through sampling is easily one of the most interesting developments in music in the past 50 years. One day I hope to see a system in place for legal sampling that benefits both the sampler and those being sampled.
I understand the point of the article is how to avoid court – but thats kinda like saying “how to protest without getting arrested” – nothing will ever change if artists decide to abide by today’s current legal climate.
I wasn’t suggesting that Fair Use was a surefire way to avoid court, just that it should have been touched on. It’s just when you put up a title like “SAMPLING MYTHS BUSTED” and “HOW TO SUCCEED AT HIP HOP” its a good idea to go a little more in depth than just pluging the beats channel (which – by the way – most of the beats are sample-based in there..) and creative commons – which is a bit of a moveon.org type deal – only people who are down with the cause join, so its kind of just preaching to the crowd.