Getting Permission for Sampling Others' Work
by Attorney Richard Stim
Failure to get permission when you sample an outside source could lead to serious consequences.
If you use samples in your music you've probably gotten the message by now: Whenever you sample an outside source, you need to get legal permission for your usage, if you're planning to use the audio in your commercially released music. Failure to get the proper permission could lead to serious consequences. Not only could you get sued, but you might not be able to distribute your music to the public at all.
The process of getting permission from the owners of the sampled music is referred to as "sample clearance." When you sample music from a pop recording, you'll need two clearances: one from the copyright owner of the song, who is usually a music publisher, and the other from the copyright owner of the master tapes, which is usually a record company.
When Sample Clearance Is Required
In general, sample clearance is required only if you're planning to make copies of your music and distribute the copies to the public (it's not required for sampling at home).
Use of samples in live shows usually poses no problems either, since you're not making copies and the usage will be covered by the blanket license fees the owner of the venue pays to performing rights organizations such as Broadcast Music Incorporated (BMI) or American Society of Composers, Authors, and Publishers (ASCAP).
There are also a few instances when you may legally sample without permission even when you plan to distribute copies to the public: when you sample an inconsequential amount of material, when an average listener would not notice the similarities between your end product and the sample, and when your use of the sample falls under the "fair use" doctrine. For more information, see "Defending a Lack of Sample Clearance," below.
Typical Sample Clearance Fees
The costs for sample clearance are negotiable, and there are no standard fees. However, as a general rule, the music publisher usually wants an up-front "advance" payment (which could be anywhere between $250 and $5,000) plus a percentage of the song income (usually between 15% and 50%).
The owner of the master recording will also want an up-front payment (usually at least $1,000), plus a "rollover." A rollover is a payment that's made when a certain number of copies have been sold. Sometimes, instead of a rollover, the owner of the master may want a portion of future record royalties (although sampling consultants advise against this practice).
Sample clearance rates have become so steep that it's often difficult for small independent labels to acquire clearance. For example, one independent artist with a recording budget of $20,000 spent $9,000 on up-front payments for two samples. As one music attorney put it, "Today, you pretty much have to be associated with a major to pay the rates."
Some owners of source music won't even deal with independent or unsigned artists because they don't sense enough of a financial return to bother. "A lot of times if it's self-released, we say come back when you have a deal," says a sampling rep at one major music publisher. In other words, the publisher or label may take a laissez faire attitude until you're making money.
Here's the Catch-22: In order to get a signed sample clearance agreement, you'll probably have to provide the copyright owners with a recording that shows how much of the source you intend to use, and how you intend to use it. So you'll likely be doing your recording first, with no permission. If you then find that you can't get permission, a lot of hard work will have gone to waste.
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Copyright 2006 Nolo
