Producers: How To Clear Sampled Beats

If you’re a record producer and you ever want to make any real money on those tracks you created from your Dad’s old vinyl collection (that you can keep in anyway), then at some point you’re going to have to get clearances for the samples used in your works.
Here’s some very helpful information I pulled from a few noted resources.

Record the song. The copyright owners will want to hear how you’re using the work, and how much of it you’re using.
Find the Copyright Owners. This means you’ll need to get in touch with the copyright owners of the works you sampled. You’ll need to find the owner of the song itself, as well as the owner of the masters. This usually is a music publisher and record company respectively.

Help is available. You can solicit the assistance of sampling consultants who can take you through the process and help you track down the necessary parties. They’re familiar with the procedures, and may also be able to advise on ballpark price estimates.

Expect to spend money. The owners and publishers can basically charge you whatever they want. Expect to pay an advance plus royalties on sales. Most indie and unknown acts may have to pay up front in order to convince them to provide clearances.

Be prepared to share. The publisher may require partial copyright ownership plus royalties for the original songwriters.
Sample, submit request, repeat. If you sampled multiple songs in your one work, you’re going to have to repeat this process for each song you’ve sampled, paying out for each sample.

Plan, plot, and strategize. Samples aren’t subject to compulsory licenses, so use of the sample can be denied by either the publisher or the owner of the master. Sample clearing can also take too much time, or cost too much money for you to work out an agreement. Have a backup plan, like recreating the sample by playing it yourself or hiring musicians. You’ll only need permission from the publisher if you go that route.

Are you on Point? The law regarding music sampling

Sampling is the use of portions of prior recordings which are incorporated into a new composition. Sampling has become an integral part of many genres of music today. When you sample someone's song without permission, it is an instant copyright violation. It is the unauthorized use of copyrighted material owned by another. Sampling without permission violates two copyrights-the sound recording copyright (usually owned by the record company) and the copyright in the song itself (usually owned by the songwriter or the publishing company).

If you want to use a sample legally, you must obtain permission from the copyright owner. The copyright owner is usually a publishing company or record label. Remember that you must obtain permission from both the owner of the sound recording and the copyright owner of the underlying musical work. The fee for a license to use a sample can vary tremendously. The fee will depend on how much of the sample you intend to use (a quarter second is a minor use; five seconds, a major use), the music you intend to sample (a Madonna chorus will cost more than an obscure drum beat), and the intended use of the sample in your song (it is more costly to build your entire song around the sample than to give it only minor attention).

There are two different ways to pay for a license. First, you can pay a flat fee for the usage. A buy-out fee can range from $250 to $10,000 on a major label. Most fees fall between $1,000 and $2,000. The other way to pay for the license is a percentage of the mechanical royalty rate. The mechanical royalty rate is the amount a person pays to the copyright owner to make a mechanical reproduction (copy) of the song. A license which is a percentage of the mechanical royalty rate is generally between ½ ¢ and 3¢ per record pressed. Everything is negotiable and it is not unusual to get a license for free, if you ask.

If all of this sounds confusing, there's hope. There are businesses devoted entirely to securing and negotiating clearances for samples. These firms charge less than an entertainment attorney would charge and are generally more knowledgeable about the going rates for uses.

If you use samples without obtaining the proper clearance licenses, you have to be aware of the penalties. A copyright infringer is liable for "statutory damages" that generally run from $500 to $20,000 for a single act of copyright infringement. If the court determines there has been willful infringement, damages can run as high as $100,000. The copyright owner can also get a court to issue an injunction forcing you to cease violating the copyright owner's rights. The court can also force you to recall all your albums and destroy them.

There is also a rumor going around that you can use four notes of any song under the "fair use" doctrine. There is no "four note" rule in the copyright law. One note from a sound recording is a copyright violation. Saturday Night Live was sued for using the jingle, "I Love New York" which is only four notes. The test for infringement is whether the sample is "substantially similar" to the original.

Remember, a judge or jury is the one who determines this and these people may be much less receptive to your music than your fans. My point is you cannot rely on fair use as a defense.

Sampling can also have tremendous consequences if you have a record contract. Most record contracts have provisions called "Warranties", "Indemnifications" and "Representations". These provisions constitute a promise that you created all the music on your album and an agreement to reimburse the label if it is sued. These same provisions are included in all contracts throughout the entertainment distribution chain. The record company has them with the artist, the distributors with the record company, the record stores with the distributors, and so on. Well, all these warranties point back at the artist who is responsible to everyone else! Therefore, if you violate someone else's copyright, you will be paying all the bills of your record company, distributor and any stores which incur expenses as a result of your infringement. This can run into serious money as you can imagine. You will also be in breach of your record contract. Read your record contract carefully before using any samples.

Michael McCready represents clients in all areas of the music industry including music, radio, television, stage, and book publishing. His music law practice includes representing bands, record labels, production companies, recording studios, promoters, and music publishers. His work includes copyrights, analyzing and drafting contracts, trademarks, publishing, and litigation.

www.copynot.org <--- VERY INFORMATIONAL

Contrary to popular belief and practice, sampling of an original copyrighted song without permission of the copyright’s owner is illegal copyright infringement.

Unauthorized sampling actually violates two potential legal rights. First, the instant you sample a portion of someone’s song (no matter how small), it constitutes a violation of the copyright in song itself - the © symbol - which is owned by the song writer or the music publisher. Second, sampling violates the sound recording copyright - the symbol - which is usually owned by the record company or recording artist. Thus, sampling without prior permission subjects the illegal copier to a copyright infringement in federal court by the original author (or publisher) and by the record company.

How To Copyright Your Music

There is a TON of misinformation out there about this topic. The good news is that the answer is simple. As soon as you fix an original song to a fixed, tangible medium, you automatically are the owner of its copyright. What this means is that when you come up with a song that is original, and doesn't have any samples of other people's songs in it, all you have to do is record the song, or write down the lyrics and music (you can just write out the chords and melody), and you are the exclusive and sole copyright holder. You now have all the rights that go along with being the copyright owner.


It's important to note however, that if you write with someone else, or with an entire band, you must determine the fractional ownership of the song. Many people split it 50/50 between the person who writes the music and the person who writes the lyrics, but you can divide it any way you like. R.E.M., for example, when they had four band members divided all of their songs four ways (25% each), no matter who wrote what.


Even though you have copyright simply by fixing an original work in a tangible medium, there are some other things you should do to protect this work in case there is a dispute. The best way to protect the work is register your songs with the library of congress. Following this link will take you to the site where you can download the necessary forms: http://www.copyright.gov/.


Additionally, you should submit your work to the performing rights organization (ASCAP, BMI, SESAC) with whom you are affiliated. For more information on performing rights organizations, check out the resources on the Artists House site. Registering with the Library of Congress, and submitting your song(s) to a PRO gives you great security that if someone claims to have written your song, that you will win in the dispute.


This leads me to my next point. You might have heard of people mailing themselves a song. This is called "Poor Man's Copyright," (I used to do this!) and the reason people do it is because it sets a date of creation. In other words, if you write a song and mail it to yourself, as long as you don't open the envelope, you have some form of proof - because of the postmark date - of when you created the song. This way, if someone claims to have written it before you, you can just pull out your unopened envelope and prove your date of creation. Of course, with laser printers being what they are it's certainly possible to forge postmarks, so, the best way to establish the date of creation is by registering with the Library of Congress.

MUSIC BUSINESS 101: What EVERY "Artist" Should Know

What is ASCAP, BMI, SEASAC and/or Other?
ASCAP stands for The American Society of Composers, Authors and Publishers (ASCAP) which is a not-for-profit performance rights organization that protects its members' musical copyrights by monitoring public performances of their music, whether via a broadcast or live performance, and compensating them accordingly.

What is BDS?
Nielsen Broadcast Data Systems, better known as BDS, is a service that tracks monitored radio, television and internet airplay of songs based on the number of spins and detections. The service, which is a subsidiary of ACNielsen provides the basis for Nielsen Media publication Billboard in the United States, while in Canada, BDS helps determine the Canadian BDS Airplay Chart and the Canadian Hot 100 chart, which is published by Jam! and in the website for Canadian Music Network, in determining their radio airplay music charts and determines the chart movement in Billboard's Hot 100 chart when combined with single sales from Nielsen SoundScan. From August 2006 to its final June 2009 publication, BDS also provided chart data for R&R after Nielsen acquired the trade. On September 10, 2009, the website Radio-Info struck a partnership with Nielsen BDS to provide radio airplay charts and related data for over 20 formats.

What is Copyright?
Copyrights are huge in the music industry.  Everywhere you turn when dealing with music you will come across different copyright laws and requirements.  That said, it is extremely important for you to know and understand what is all involved in copyrights.  You will also need to know how to obtain one to protect the music that you and your band create.  This is relatively simply and most of the forms can be found at the US Copyright Office website, www.copyright.gov

What is an EPK?
An electronic press kit (or "EPK") is a press kit equivalent in electronic form. In business, electronic press kits are more commonly referred to as online or electronic media kits. They are used to promote artists and businesses via mass media. (Must be .DOC, .PDF or similar Format)