Music Samples: How to Use Them Legally
by Sue Basko, esq.
Know from the start: Using samples legally is NOT an easy process. This is the kind of thing you really ought to pay a lawyer to do for you. In fact, many record companies and publishers will only deal with a lawyer.
Still, read on about the process involved:
Samples are pieces of existing recorded songs that are incorporated into a new song.
Someone owns the copyright on that recording. That is probably a record company. The songwriter(s) or their publisher own the copyright on the underlying intellectual property, which is the songwriting on the music and lyrics.
To use a sample legally, you need to do 3 things:
1) You need to get Master Use Rights from the copyright owner of the recording you are sampling. This is most likely a record company. This means you are asking the record company for permission to use the sample.
HOW TO DO THIS: You need to look and see what record company made the recording. Then you need to locate that company and contact them and ask for permission to use the sample. If it is an old recording, it can be very complicated to locate the copyright owner, especially if the record company no longer exists. The R.I.A.A. may be able to help you.
The record company will want to know exactly which part you want to use and how you want to use it. The record company can say no. If they say no, you can recreate the sample you want to use by obtaining the compulsory licensing, re-recording the part of the song you want to use, and paying statutory royalties on each recording you sell.
Why they might tell you no: Because they find you or your proposed song use offensive. Because they think you might cause people to buy your song rather than the original song. Because they have given permission to someone else to use the sample exclusively.
2) You need to get permission from the song publisher. The song publisher is the company that represents the songwriter. Some songwriters self-publish. The song publisher will want to know exactly how you plan to use the sample, and will want to know all the lyrics on the song you plan to record. They will likely reject using the sample in any song that uses profanities. Also, if you as an artist have a reputation that is objectionable, the publisher is likely to refuse your request. The publisher may want to hear a mock-up recording of what you plan to record in the studio.
The publisher/ songwriter can say no. Why they might tell you no: Because they find you or your proposed song use offensive. They might also want you to be represented by a lawyer. They might also find your approach unprofessional or think you are flaky or risky. For example, if you send them a screwy letter with misspellings and they barely know what you are talking about, they will likely reject your request. Also, if they have any reason to suspect you are not dealing on the up-and-up, they might reject your request. Also, if you have an agenda or viewpoint that they do not want to be associated with, they will reject your request.
If the publisher/ songwriter tells you no, then you cannot use the sample, or it will be very risky to do so. Why? Because the songwriter can sue you for copyright infringement for "unauthorized release of an altered version of the song." If the song goes to other nations, the songwriter might be able to sue you for violation of their artist moral rights, or droite morale.
Always be aware that if someone with a lot of money wants to sue you, they will find a basis on which to do so. That does not mean they will win, but it is more common to outspend in a lawsuit than to actually win.
HOW TO LOCATE THE PUBLISHER: You will need to locate the publisher of the song. You might be able to find the publisher on the Harry Fox database. You can search for the song on the PROs (performing rights organizations) databases and the copyright office database to try to find this information. Here are links to those sites:
Once you have located the publisher, you must call them and tell them you want to sample the song. They will tell you how they want you to apply to do so, and what they will require in your application. Most likely, they will want a letter that explains in detail how you will use the sample.
Some publishers have a website where they let you apply to use a sample, or let you apply for any other sort of license for the songs in their repertoire. If you can find a website, use that because it will save time.
You can also hire a clearance company or a lawyer to find the publisher and try to get clearance to use the sample. If you can afford this, it is certainly worth the money. This would be the sort of clearance company that is used to get rights to use a bit of a song in a movie. You can contact such companies and ask if they will try to do clearance on a music sample for use in a new song. They might offer this service and they might not. Many clearance companies only deal with synch licensing, that is licensing to use a part of a song in a motion picture, such as a movie, TV show, or commercial.
3) You also need a mechanical license to use the sample of the song in the recordings you will produce and distribute. This is the compulsory license that you pay at statutory rates, which is 9.1 cents per copy for songs 5 minutes and less. This means that for every copy of the song you sell, you will be paying money to the songwriter from the sample.
HOW TO DO THIS: Some songs are listed with the
Harry Fox Agency, which will issue you a limited quantity license for song recordings that will be produced and distributed within the United States. This service is called "Song File. " Harry Fox charges at $15.00 processing fee per song and the royalty fees for the number of copies you estimate you will sell.
The Harry Fox Songfile service can only be used for song recordings that will be produced and sold in the U.S. If the recording is going to be produced or sold outside the U.S., you need to contact the publisher directly. If you are selling online, please note the reach of the online store you are using. For example, Itunes has Itunes stores specifically for the U.S., UK, Japan, etc. Therefore, it seems safe to use Harry Fox for the mechanical licenses for songs recorded in the U.S. that will be sold on Itunes U.S.
If the song is not listed with Harry Fox, or if it will be sold internationally, or if you prefer, you can locate the publisher or copyright owner of the song yourself or ask the Copyright Office to do so. You then serve a Notice of Intention to Obtain a Compulsory License on the copyright owner (song publisher, usually) or authorized agent of the owner by certified or registered mail. You can find instructions on how to do this at the this link for the Copyright Office.
Samples Re-recorded. Some artists want to use a sample of another artist's song, but instead of taking the original recording, they re-record it themselves or have studio musicians re-record the sample. The artist must still get permission from the copyright owner of the song, which is the publisher or songwriter, and also must obtain the compulsory license and pay the statutory royalty rates. KEEP IN MIND that the song publisher DOES NOT have to allow you to use a sample of the song.
Also, please keep in mind that you might still be sued by the record company that owns the original recording of the song, on some basis or other. That is why, if you want to avoid lawsuits, you should seek also seek permission from the record company, even if you will not be using their recording. If they have said no to you request to use the original recording, it is an indicator that they will find some basis to object to you recreating the sample. For example, they might claim the part you sampled was not part of the originally written song, but rather, that is was created in the studio during their recording session. And this might be true.
CREDITS. This question came to me via email: If I get permission to use the sample and I pay the royalties, do I still have to give credit in the liner notes? Yes, you should always give credit in any situation where you can give credit. The permissions you will get from the record company and the publisher will spell out how they want you to give credit. If it is not spelled out, still do it.
One of the saddest things about Itunes is that there are no credits for songwriter, musicians, etc,, as you see on CD and vinyl. I wish Itunes would change this, at least for the music submitters that would like to include this information.
Lawsuits. Please be aware that the use of samples has led to many lawsuits, many of which have been settled with big payments. In one such lawsuit, a band called The Verve had a very popular recording called "Bittersweet Symphony." Do you remember it? In it, they used a sample from a symphonic cover of a Rolling Stones song. The string part was never in the recording made by the Rolling Stones, but was part of the cover version recorded by the symphony. The Verve was forced to pay all of their royalties over to Mick Jagger and Keith Richards. This is why you must get permission not only from the owner of the recording you are sampling, but also from the owner of the underlying intellectual property (the song), which is the song publisher/ songwriter.
Your goal should be to avoid lawsuits. Lawsuits are expensive, time-consuming, and can hold up your money-making and creative processes. A big lawsuit can end your music career.
If you use a sample and you make any money or appear to be making money, you will become a target for a lawsuit. You must be prepared. Keep in mind that although the U.S. courts have allowed some usage of sampling without the publisher's permission, it is very easy for music to travel outside the bounds of U.S. jurisdiction. In fact, most music on the internet is available worldwide. Therefore, if you want to be somewhat safer from lawsuits, seek the two permissions listed and be sure to give full credits for use of the sample and pay the royalties.
If you do not have permission from the publisher, and the song goes to other nations, the songwriter might be able to sue you for violation of their artist moral rights, or droite morale.
Always be aware that if someone with a lot of money wants to sue you, they will find a basis on which to do so. That does not mean they will win, but it is more common to outspend in a lawsuit than to actually win.
Keep in mind that some people and some companies rarely sue and are more into sharing. Other people or companies are known to sue over the slightest things and have been known to economically destroy small music artists. For example, it is often said that the Rolling Stones' book of songs has been highly litigated by its publishers. Keep in mind that if a copyright infringement is claimed, you can be sued for a great deal of money, even if you made little or no money or even if you charged no money.
To sum up -- to legally use a sample, you need permission from at least two sources -- the owner of the copyright on the recording and the owner of the copyright on the underlying intellectual property, that is the owner of the publishing (music and lyrics). Neither has to give you permission and they can set limits and charge as they please.
USING A SAMPLE FROM A MOVIE:
Question: I have an audio recording I produced myself. It's a 30 minute electronic music mix. I want to know how to ask permission to use a sample from a film which I have used within this recording before I publish this recording of mine.
Answer: If the sample is sounds from the film, such as talking, sound effects, etc., then you have to contact the owner of the film and see if they will let you use it. That is going to take some hunting down, but look at the credits or check the credits on IMDB pro. (They often have free 2 week memberships.)
www.imdb.com
It can often be hard to tell who it is exactly that would be able to give permission, but your best bet is to talk to the LEGAL DEPT of the company that owns the film.
They will probably tell you no. At that point, you can decide if you MUST have this in your song. Maybe you can create an original piece that has the same vibe without using the same words or names and record it and add SFX to make it sound like it is coming from a movie.
For example, you can write dialogue and record SFX that have a similar vibe, but that do not infringe upon the copyright of the movie. It is very easy to use filters in Garage Band or ProTools to make it sound like it comes from a movie.
If they tell you no and you use it, you are violating copyright and they can sue you. If it is a film registered under
U.S. Copyright, they can sue you and there is a fine involved, even if you made no money on your song. The fine can be $150,000. That is a whole lot of money.
So you do not want to violate copyright owned by a rich company with a big legal department with time on their hands to sue you.
If it is a song from the film, and if it is the recording of the song you want to use and not the recording of the film itself, then that is a matter of getting permission as with any sample -- from the songwriter/ publisher as well as from the owner of the recording itself.
But if you are taking a recording of a song from a film, then you need ALL of these permissions -- the film company, owner of the song master, and songwriter/ publisher. And they will tell you no, most surely -- mainly because there will be no one that has the authority to give you this right, and you do not have enough money to pay a big fee to convince them to allow it. Money and fame talk, and if you have either, you can possibly get them to say yes.
