Join Richard Stim for an in-depth discussion in this video Using samples, part of Music Law: Recording Management Rights and Performance Contracts.
- Sampling is the process of copying a piece of recorded music usually on a computer or sampler and then reproducing it on a recording. When an artist samples another recording, it is a violation of copyright law if it's done without the permission of the owner of the recording, usually the record company and the owner of the song, usually, the music publisher. There are some exceptions to this rule, for example, if the sample is pre-cleared, that is the sample was licensed to you by a sample loop company.
Sampling clearance is expensive and, for non-major label artists, difficult to accomplish. Some artists wonder if it is worth pursuing. After all, the copyright owner might never learn of the borrowed sample or might not be able to identify it in the mix or might not even bother pursuing a lawsuit if the sample is discovered. Why bother alerting the owner by seeking clearance? That's a difficult call, but when making the decision a musician should consider that the failure to disclose samples and some recording agreements might be a breach of the contract warranty leading to termination.
Second, as a general rule, the more successful the recording the more likely it is that the sample will be discovered. However, as a practical matter using uncleared samples may make sense for some artists. For example, a musician who sells less than 1,000 downloads of a recording. In that case, it's unlikely that the owner of the source recording will ever learn of the use of samples and if they do learn of it, they may not be inclined to pursue recourse against the recording artist unless they sense there are deep pockets.
Legal slang for people with substantial assets. Musicians who are concerned about sample clearance will need to enter into one or maybe two agreements for permission. Before proceeding, however, the musician may wish to seek the advice or assitance of a clearance expert. Type sample clearance service into your search engine. The cost for clearance are negotiable. There are no standard fees. Unless one party owns rights to both the song and the recording, the artist will need to negotiate and pay a music publisher and a record label.
These companies will want in advance of several thousand dollars and a percentage of the song income anywhere between 15 and 50 percent. Alternatively, these companies may also want roll-over payments when a certain number of copies have been sold. These agreements are often complex and require the assistance of an attorney or sample clearance expert as they detail approved usages, income splits, territory and complex copyright issues.
In summary, sample clearance agreements are not a DIY activity and will require expert advice.
For example, when it comes to record contracts, it's important to know how advances and royalties work, how to maintain creative control, and what happens when a member leaves a band. Rich also tackles management contracts, describing what managers can do for you—and what to do when you need to let them go. Next, he explores the basic terms, riders, and payment options in performance contracts. Then learn about releases, artwork permissions, publishing and producer agreements, and other types of legal arrangements. Rich wraps up the course with a discussion of oral agreements, attorney fees and roles, and five basic rules worth remembering for every music contract.
DISCLAIMER: This course is taught by an attorney (or other instructor) and addresses US law concepts that may not apply in all countries. Neither LinkedIn (including Lynda.com) nor the instructor represents you and they are not giving legal advice. The information conveyed through this course is akin to a college or law school course; it is not intended to give legal advice, but instead to communicate information to help viewers understand the basics of the topic presented. The views (and legal interpretations) presented in this course do not necessarily represent the views of LinkedIn or Lynda.com.
- Why bother with a contract?
- Understanding terms, options, royalties, and deductions
- Making provisions for marketing
- Including warranties and indemnity clauses
- Hiring a manager
- Understanding performance contracts
- Getting permission to use samples
- Creating a band partnership
- Record keeping
- Going through mediation or arbitration