Image via Complex Original
These days, original production seems to be key; hell, Daft Punk spent a million on hiring musicians to create original material for Random Access Memories. That said, there are times where a great sample is just what the doctor ordered. You can't escape the feeling some of those original sounds provide; we've heard producers attempt to recreate a sample and just not get the desired effect. The problem with all of this? Legal mumbo jumbo, of course!
Many producers have attempted to get away with sampling by many means, from releasing the track for free to putting so much filter and effects on it that it'd be difficult to figure out the source material anyways. It's hard to hide on the Internets, and those legal watchdogs will catch you out there slipping if you let them.
Justin Chapman (of The Law Office of T. Justin Chapman, LLC), who you may remember as being the lawyer that helped us figure out what to do if you think your music has been stolen, recently wrote a piece giving sample-using producers some suggestions on how to still get their music heard, and gave us permission to post it on DAD. Take this info in and figure out how you can operate in these changing times... legally.
This article should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult a lawyer concerning your own situation with any specific legal question you may have.
Use Legitmix
Legitmix provides a platform that actually allows producers to sell songs incorporating samples without asking for a license and without violating copyright laws. Legitmix uses a program that requires consumers to purchase both the original songs sampled and a Legitmix file for your work. A Legitmix file works like digital instructions enabling consumers to recreate your work using their own copies of the tracks you sampled. You receive 70% of the sale price of your Legitmix file and rights holders are compensated from the sale of the iTunes tracks you sampled consistent with copyright law. If the consumer already purchased the song you sampled from iTunes, he does not have to do so again.
Legitmix only enables you to sell your work to individual consumers. These songs cannot be synced into TV shows, commercials or movies and you cannot make them available to stream on Youtube, Spotify, Rdio, Pandora or other platforms.
Identify the rights’ holders and ask permission
It is difficult to clear samples, but that doesn’t mean you shouldn’t try. Don’t just assume you won’t get permission until you ask. You’re trying to make it in the music business so you should be accustomed to trying to do difficult things. Still, you should be aware that if you ask permission and it’s denied and you release your track anyway you are potentially facing damages for “willful infringement.”
Don’t forget to seek permission from both the owner of the copyright in the recording, which is typically a label, and the owner of the copyright in the composition, which typically a publisher. Sometimes both are owned by the same individual or entity, but remember you have to get permission to use both the recording and the composition.
If you can’t clear it, shop your track to someone who may be able to
If you think you have a great track, incorporating a sample another artist or a label with more clout and connections may want to use it. If you believe in it, shop it.
Don’t ever bury your head in the sand
Don’t ever ever sell or license a track containing samples to anyone and just hope the samples go unnoticed. You should always notify the other party of the samples you used. Even if the sample is difficult to notice, failure to notify the other party of the samples you used can have serious consequences and ruin a relationship.
If you license it to a vocalist, you may be able negotiate the burden of clearing the samples to the vocalist and insulate yourself from liability.
If a label is releasing it, you are probably breaching your contract with the label if you do not notify the label of the samples. Further, your contract with the label most likely holds you responsible for all damages and attorney’s fees related to defending a potential suit. Your contract also likely permits the label to withhold your royalties to cover the damages and fees.
Hope the law changes
There has been a lot of debate concerning copyright reform recently. The current law is outdated and the U.S. government is already holding hearings reviewing copyright law. Hopefully, the current laws will be replaced with laws that make it easier for producers to legally create new works with samples. If this is an issue that you care about, contact your congressman’s office and voice your concerns.
