If your use of the sample qualifies as a fair use. Fair use is the right to copy a portion of a copyrighted work without permission because your use is for a limited purpose, such as for educational use in a classroom or to comment upon, criticize, or parody the work being sampled. For example, the rap group 2 Live Crew's recreation of the musical tag and the opening lyric line from Roy Orbison's "Oh Pretty Woman" was considered to be a fair use because it was limited (they only used the riff once) and it was for purposes of parody.

There's a widespread myth in the sampling community that "less than two seconds is fair use." Don't believe it. What a judge and jury will feel is fair use depends on a number of factors other than the length of the sample. Generally, when reviewing fair use questions, courts are looking for three things:

• You did not take a substantial amount of the original work.
• You transformed the material in some way.
• You did not cause significant financial harm to the copyright owner.

Also, some courts only apply this fair use rule to the musical composition copyright, not the sound recording copyright.

In principle, it's good to know these defenses, but the obvious difficulty with all of them is that they are defenses. The time you'll use them is when someone is coming after you. There is no predictable way to guarantee that you'll win your court case based on these defenses (assuming you can even afford to hire attorneys to fight the case).

You'll find yourself on safer legal ground if you seek permission. This is especially true if you're signed to a record label and your record contract puts the burden of sample clearance on your shoulders. Your contract probably contains an indemnity clause, which means that if you and the record company are sued, you must pay the record company's legal costs. Ouch!

Publicity Releases

There's an extra wrinkle if you use a sample for purposes of selling or endorsing a product (for example in a Volkswagen ad), and the sampled artist is identifiable. In cases like this, you also need to get the source artist's consent. That's because the ad creates the impression of an endorsement. Without the consent, the source artist could sue for what is known as the violation of the "right of publicity." (The same would be true if you imitated the source artist's voice without sampling it.) So when you use a sample for an advertising agency or other commercial client, be aware that a third type of clearance or "release" may be necessary.

Pre-Cleared Sample Discs

What about sample CDs -- recordings that contain sounds and riffs specifically sold to be used in samplers? Most sample discs are "pre-cleared," which means that by buying the disc, you're automatically granted permission for music usage without the payment of any further fees. However, the permitted use of pre-cleared samples may vary from one disc to another. Don't assume you can use the sample in whatever way you like: Review the documentation that comes with the CD for any license information.

Most companies that makes sample discs grant the user a "nonexclusive license" to use the samples. A "license" is a grant of permission to do something (that is, use the sample in your composition). "Nonexclusive" means that you're not the only person who can use the samples. All buyers of these sample discs share the right to use them. You're not buying the right to redistribute the samples, however, only the right to use them in musical works.

If you find that your purchase of the disc doesn't grant the rights you need, contact the soundware manufacturer to see if you're eligible for a refund.