Music Samples and Copyright Infringement Lawsuits
Many musicians take samples (or sections) from the copyrighted works of other musicians. If you plan to commercially release your music, you probably will need to get written permission from the copyright owners of any music that you are sampling. Otherwise, you could be sued for copyright infringement and prevented from distributing your music. The process of getting permission is known as sample clearance.
You do not need to get sample clearance in every situation in which you are playing someone else’s music. If you are playing music at home for your family or friends, you do not need to get sample clearance. You probably also do not need it if you are performing in a live show, since the owner of the venue will arrange for a license to cover the public performance right. More generally, you do not need sample clearance if your work is so different from the sampled work that the audience would not notice the similarity, or if the fair use doctrine applies. If you are unsure about whether you need sample clearance, you probably should try to get it because the costs of failing to obtain permission can be massive. Sometimes a record company contract will contain an indemnity clause that requires an artist to pay the costs of defending a copyright infringement lawsuit. You will want to do whatever you can to avoid this situation.
Going Without Sample Clearance
Even if you seek sample clearance, some copyright owners will deny it or fail to respond to the request. Other artists may not be able to pay for sample clearance. If you take the risk of proceeding without sample clearance, you may want to bury the sample in your music as much as possible and try to make it unrecognizable. You should avoid using the title of the sampled music in your song title. If you sell only a limited number of recordings of your music and sell them only at performances, you may not face a copyright infringement lawsuit.
If you do face a lawsuit, you may have certain defenses. One defense involves arguing that the average person would not recognize the similarities between your music and the sampled music. No infringement would occur in this situation, since you do not need permission to gain inspiration from a work.
Another defense involves arguing that the fair use doctrine applies. This allows people to copy small parts of a copyrighted work for a limited purpose. A court would consider the amount of the sampled work that was used, the extent of the financial losses incurred by the copyright owner, and the degree to which the alleged infringer transformed the original work. There are no set rules in this area of copyright law and no situations in which you will be automatically exempt from liability. This means that the outcome will be unpredictable, and the litigation may be costly because you probably will need an attorney to make this defense persuasively. You should be aware that fair use offers a defense only to an infringement claim based on the copyright in the song. It does not shield you from an infringement claim based on the copyright in the recording of the song.
Pre-Cleared Samples
Sometimes an artist can purchase a disc of music that has been previously authorized for sample use. This means that you have the right to use the music on the disc for samples without paying any fee beyond the cost of the disc. To make sure that you are following the terms of use, you should look for license information on the CD. It may impose restrictions on the way in which you can use the music. For example, you likely will not be able to redistribute the samples. You may be able to get a refund if the terms do not cover your intended use.
Challenges for Small Recording Labels
Getting sample clearance can be an uphill battle for artists who are relatively unknown in the industry and who have not signed a contract with a larger company. They may need to provide the copyright owner with a recording that shows the extent to which they will use the sampled music. This can be a waste of time if the copyright owner then denies permission.
Moreover, paying for sample clearance can pose a challenge for small independent labels with limited resources. The fees for sample clearance from the music publisher may include both a lump sum payment in advance (potentially thousands of dollars) and a percentage of the profits from the song. Meanwhile, the fees for sample clearance from the record company may include another lump sum payment and a rollover payment if sales of the work exceed a certain threshold. In other situations, the record company may ask the small label for a percentage of future royalties from the recording.
Use of Samples for Advertising and Promotions
Music often plays a key role in ads that urge consumers to buy a product or use a service. If you are creating this type of ad, you may need to get not only sample clearance but also permission to use the music from the artist who created it if they can be identified. This rule is meant to protect the artist’s right of publicity, and it applies when an ad could create the impression that the artist is endorsing the product or service.
