From the course: Music Law: Recording, Management, Rights, and Performance Contracts

Using samples

- 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.

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