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Obtaining Permission Before Sampling Music

Are you a songwriter trying to remix your new song with an old hip-hop classic? Are you an artist trying to create a cover song? Do you want to know more about the music industry? You may wonder what legal permissions you need before using someone else's song. This article will cover the nuances of obtaining consent before sampling music.

Sampling music is the act of reusing a part of another sound recording. Many musicians sample others' music, whether unique percussion combinations, vocal hooks, or distinguishable guitar riffs.

By obtaining permission from the original musician or owner of the rights to the music, many musicians can avoid legal trouble, such as an injunction not to use the sample or even monetary damages. Obtaining permission for music sampling can be tedious but will save you from legal action you could face if you sample without permission. Here are some tips to get permission before sampling music.

Music Copyright Protection

Copyright protection gives a creator of an original work exclusive rights over its use and distribution. Music copyright refers to the legal protections of musical compositions and sound recordings. Music copyright covers the composition and any recorded performance of the composition.

Sample Clearance and Licensing to Avoid Copyright Infringement

Sample clearance refers to the process of getting permission from the owners of the copyrighted music. The artist asks permission to sample the copyrighted music in a new song.

To get these sample clearances, you will first need to find the copyright owners of the song and master recording. Sampling music requires two sample clearances:

  • Clearance from the copyright owner of the song, typically the music publisher
  • Clearance from the copyright owner of the master recording, typically the recording company

The owner of the song or master recording can give the artist a license to use the copyrighted music.

Find the Music Publisher

The music publisher is typically the easiest to find, so start there when seeking sample clearance. Performing rights organizations, such as Broadcast Music Incorporated (BMI) and the American Society of Composers, Authors, and Publishers (ASCAP), collect money for public performances of artists' music. That makes these organizations an excellent place to locate a publisher. You can find which organization controls the rights for the piece you are sampling online by visiting these performing rights societies.

Once you're on these websites, use the search database to find the source song of the music you are sampling. If you are struggling to find the song on the websites, try calling the individual organizations and asking for the song indexing department. Then, once you know the source, contact that source to ask for clearance for sampling the source music.

Keep in mind that some publishers have policies against granting permission to samplers. Many publishers refuse to grant sampling clearance to artists they do not know or have never heard of. If you can offer to pay them upfront and show your ability to pay, they may be more inclined to speak to you.

Find the Master Recording Owner

After obtaining sample clearance from the music publisher, you must obtain sample clearance from the owner of the master recording, sometimes known as "masters." The owner is typically the record label.

Here are some tips to help you find that owner:

  • Ask the publisher.
  • Ask the record company that releases the source music.
  • Do additional research through the U.S. Copyright Office.

Finding the master recording owner can be difficult. Once you think you're on the right track, you may find that the record label sold its copyright to someone else or that the rights to the song have reverted to the original artist.

You can pay sampling consultants to help you through the sample clearance process if you need help. Although experienced sampling consultants can be expensive, in the end, they can save you time and money. These consultants are familiar with the procedures, the costs, and the people at the publishing companies who grant license rights.

Compulsory License

A compulsory license is a type of license that allows someone to use copyrighted work without getting permission from the copyright holder. A compulsory license is typically used to reproduce and distribute musical compositions. This type of license is often utilized for cover songs. It allows artists to record and distribute their version of a copyrighted work without seeking permission from the original copyright owner.

When using a compulsory license, the user may pay royalties to the owner for using their creative work. A notice must be sent to the copyright owner or the U.S. Copyright Office if you cannot find one within thirty days of creating the cover song. You must take this action before the distribution of the cover.

Plan Ahead

Getting pre-cleared before using someone's copyrighted music is your best bet. Pre-clearance means obtaining permission in advance from the copyright owner. Planning and leaving alternatives is important in case the publisher denies your sample request. Obtaining permission for sampling can be a very long process, taking months or more.

Don't forget that a lot of copyright owners have a no-sampling policy. If the music you plan on sampling has a firm policy, there will be no way to get permission to sample. Planning and considering alternatives is wise if you cannot use the sample you want.

Alternative Solutions if Sample Clearance Is Not Granted

You may have other options if the copyright holder doesn't give you permission to use their song.

Recreate the Music Sample

Many artists re-record the music they want to use instead of using the prerecorded master. This means the artist plays and records the music to sound exactly like the original one they want to sample. According to copyright law, infringement only occurs when you use the original master recording. If you mimic or re-record sounds from another artist, you may be in the clear. This is a great solution if you cannot obtain sample clearance from the owner of the master recording.

You still need permission from the music publisher because the song itself has a copyright. However, you do not need clearance from the owner of the master recording.

You may be familiar with Taylor Swift re-recording her songs so she can own her "masters." Taylor holds the publishing rights since she wrote and composed the songs. Therefore, she has the publisher's permission. She can re-sing her songs to create new "masters" of that particular performance.

Seek Copyright Owners Who Are Happy to Clear Samples

Some copyright owners want their music sampled, so they encourage other artists to use their work. These are good samples to find and use since the process will be easier and likely end with you having a sample.

Contact the Artist Directly

If the artist still has some control over what sampling gets clearance, you may have better luck contacting them directly. This is especially true when the copyright owners of the master recording and the publisher are not helpful.

Fair Use in Music Law

While fair use is a common application in copyright law, it is generally not applicable to sampling in the music industry. Fair use is a legal doctrine that gives individuals limited use of copyrighted material without obtaining permission from the copyright owner. The fair use doctrine typically applies to education, parody, criticism, or commentary.

Use Musical Works in the Public Domain

Using a musical work or composition in the public domain does not need advance permission to sample. Works with outdated copyright protection or expired copyrights are available for use.

Hire a Lawyer to Help with Music Sampling

Obtaining permission for music sampling can be a long and tedious process. Yet legal claims of copyright infringement could mean that you cannot use the music sample, and you may even have to pay money for damages. Contact an intellectual property attorney to help you get sample clearance and avoid legal trouble.

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