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"Sample" Clearance Issues

By Wallace E.J. Collins III

Wallace E.J. Collins III is an entertainment and intellectual property lawyer with more than 30 years of experience based in New York. He was a recording artist for Epic Records before receiving his law degree from Fordham Law School. Tel: (212) 661-3656; www.wallacecollins.com.

Many clients ask about whether or not they can "sample" from an existing sound recording and how much is permissible to use, and whether or not they need permission to embody a sample in their new sound recording.

Sampling occurs when a portion of a prior sound recording or fixation of sound is incorporated into a new sound recording. When such a use occurs, two copyrights are involved: the copyright in the sound recording and in the underlying musical composition embodied in such recording. If sampling occurs without permission, copyright infringement of both the sound recording (usually owned by the record company and/or artist) and the song (usually owned by the publishing company and/or songwriter) have occurred.

In order to legally use a sample, one needs to contact both the owner of the sound recording and the copyright owner of the underlying musical work for permission. License fees for sampling vary greatly and depend on how much of the sample will likely be used, the perceived value of the recording from which the intended sample originates, and the intended use of the sample in the song. Although licenses can be granted "gratis", usually there is a fee, which is either a percentage of the record royalties and/or the mechanical royalties or for a flat fee paid upon execution of the sample license agreement (or a combination of both). There are no statutorily mandated rates for samples, so the copyright owner can charge whatever the copyright owner wants to charge, and does not have to grant permission to use the work at all.

Using samples without permission can lead to litigation where an infringer may be forced to pay damages to the copyright owner, which could amount to hundreds of thousands of dollars per infringement. A court can also order the user of the sample to recall and destroy all of the infringing copies and, in certain cases, can award the costs and legal fees incurred by the prevailing party in such a lawsuit.

Although the "2 Live Crew"/"Pretty Woman" infringement case turned on the issue of "fair use", I do not recommend to clients that they try to rely on that copyright law doctrine when they want to use samples in their works. Further, the idea that one can use a certain number of notes or seconds of someone's song without penalty is a myth.

The only proper way to use a sample of a prior recording in a recording is to get permission.

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This page contains a single entry from the blog posted on August 20, 2015 10:09 PM.

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