How to Mess Up Getting Music Samples Cleared

Thursday, December 5th 2019. | letter

How-to-Mess-Up-Getting-Music-Samples-Cleared-scaled How to Mess Up Getting Music Samples Cleared


How to Mess Up Getting Music Samples Cleared

Samples have long been used in recorded music. For example, the 1967 Beatles recording “I Am The Walrus” used a BBC radio program in their mix. Unfortunately, most people have no idea about copyright and samples. Mistakes are expensive and it is usually cheaper to ask first. Here are some ways to mess up music samples and cost more money than you can afford.

Only one release for a sample

The music you want to use is protected by two copyrights. A copyright for the performance (which was recorded) and the other copyright for the musical composition (the song, in whatever form). The copyright for the performance usually lies with the record label (long ago there were these profitable companies that sold music) that originally released the recording. The copyright for the composition usually lies with the author of the song or, more likely, with the publisher (this is often a company that does not humming a tune but can certainly make money with the tune). Just because you’ve got approval from the owner of the song requires approval from the recording owner. It gets even more complicated when publishing belongs to several companies. Then you have to make a deal that everyone likes.

Take your own sample again

You may not want to be bothered with the clearance for a rehearsal. You just want to bring out a song and be done with it. So you think, “I can play by ear, I can easily figure out how they did that riff, look, I learned how to beat the bass like that, that’s all they do.” Not so fast. You may create a new recording (Performance), but you may still use a copyrighted song. You can not just finish the melody on another instrument in a different style while standing on your head.

You can play the tune yourself or hire someone to do it (there are companies that specialize in this area) to pay no royalties for recording, but you still need to get approval for the song. If you violate the copyrighted song, you must pay lawyers to fend off the publishers.

Change the speed of the recording or add some effects

No dice. This would be a “derived work”. You have derived your recording from the original recording. If you could only accelerate or slow down a song to avoid copyright infringement, we would hear nothing but chipmunk songs on the radio because the broadcasters prefer not to pay for the songs they play. Remixing an original work will not help. They still use the recording and the song. Again, if that were allowed, the radio stations would only play remixes.

Use only a very small sample

People are repeating things they do not know to be true, but they sound good. People love to shake off some ideas that you can use a certain maximum number of bars of a song or recording or a certain number of notes. If you believe that, then rob a bank and tell them that you only want to rob a very small amount of money.

Piggyback from the sample release of another person

You may hear a song everywhere, e.g. On the radio, on television, in movies, in shopping malls and elsewhere. Just because it’s used by everyone does not mean that they have not been approved or that you do not need approval. Yes, if you race in a pack of other speeder, the cop can only issue you as a ticket. You lose if you defend yourself: “But everyone else has driven faster than me.” Yes, that’s not fair. However, life is not fair and once you find that out, you will be more at peace. A sample release clears the person who is allowed to use the sample. If you do not have a piece of paper that confirms your use, it will not be deleted, regardless of whether the release was given to your bandmate, friend, neighbor, or anyone else. In a recent example, Rianna was given permission to play Michael Jackson’s “Wanna Be Startin ‘Something” tune that sings “mama-say mama-sa ma-ma-coo-sa”. However, MJ got this song from a rehearsal of a recording by another person, a Cameroonian musician named Manu Dibango. When Rianna believed that she had been completely cleared in releasing the MJ song, she found out through Manu Dibango’s complaint that she still had to deal with it, since MJ’s song (allegedly) contained a derivative sample.

Wait, there is good news

Now that you know what you’re not supposed to do, turn around and make music without getting in trouble as long as you take care of your business. Between 70% and 80% of requests for use of samples are granted. Just ask. Nice. Before you spend the music. And be prepared to sign a check.

Frederic M. Douglas is a litigation litigation attorney dedicated to solving problems related to patents, trademarks, copyrights, trade secrets, and other areas of law. Mr. Douglas is an Irvine, California-based intellectual property lawyer with clients around the world.