A Guide To Clearing Samples In Music Production

So you made an awesome track using a sample from another piece of music by another artist, and want to shop it to labels to release it for profit – what do you do next? Artists like Vanilla Ice, Two Live Crew, Bashmore, and Baauer have all faced allegations of unlawful sampling with some cases even going to the US Supreme Court. As a small time or professional producer how do you approach sampling and when do you decide that it is in your best interest to get sample clearance? Read on to find out from guest writer, lawyer, and producer Saleem Razvi.

“[In] truth, in literature, in science and in art, there are, and can be, few, if any, things, which in an abstract sense, are strictly new and original throughout. Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before.” – Emerson v. Davies, 8 F.Cas. 615, 619 (No. 4,436) (CCD Mass. 1845)

This article does not constitute legal advice + should serve as a guide for clearing a sample.

URBAN LEGENDS OF SAMPLING

bauuer-copyright

Sampling and artist influences are always a part of the music-making process, consciously or subconciously. Before 1991, it was a sample-whatever-I-get-my-hands-on music world. Biz Markie and Warner Bros. were hit with a lawsuit and an injunction, which a pulled a track off Biz Markie’s third album. The presiding judge in this case even referred them for criminal prosecution, stating, “Thou shall not steal.” Shortly after, MC Hammer and Vanilla Ice found themselves in trouble with Rick James, Queen and David Bowie for unlawful sampling.

Everyone has heard the myths on sampling:

  • I sampled only 4 bars, or 8 bars!
  • I changed the sample by using FX so I am good to go!

Actually, if the sample is identifiable – no matter how short in length – you should get clearance. It could even be one note! Beastie Boys suffered a setback in the 90s for a six second, three note sample in Pass the Mic. The court ruled in favor of the Beastie Boys, since the sample was minimal and the listener would not recognize the original composition. Most producers don’t have the budget of MCA, Adrock, and Mike D -and their case shows how far a songwriter will go to protect their work.

If I don’t sell enough copies or make any money, the record company or publisher won’t come after me, right?

While this can be true, rights owners can still write to labels and websites and get your music taken down. This also affects your bargaining position if the track is successful. Just because something is on the internet doesn’t grant full permission for sampling. For example, using sample from an interview could allow the interviewee person to pursue legal action under state privacy laws for using their likeness.

Baauer is facing the prospect of a large settlement after Harlem Shake went viral and  the original artists heard their voices sampled. Baauer could have paid a significantly lower amount to clear his vocal samples. So, what does it take to get a sample cleared and when should you do it?

WHAT’S COPYRIGHT ANYWAY?

Just a quick explanation here: copyright is not just a form you fill out, it exists prior to that. When a piece of art is put into a fixed form, (ex. download link, streaming sample) most copyright law protections kick in. When you fill out the official forms and register your art – that’s is when you get a presumption that you own the copyright to that work.

If you are dealing with a larger label they will ask you if you are using samples and if they are cleared. Even if they don’t ask, in the contract it will state that you, the artist, are responsible and present to them a clear and free work. If you are using a sample pack, check what the license says –especially if it involves vocals.

STEP 1: RESEARCH

Birdman's "Always Strapped" listed on the BMI repertoire
Birdman’s “Always Strapped (Remix)” listed in the BMI repertoire

Where do we start? There are two types of sample clearance:

  • the master composition
  • the sound recording

Start by researching the artist and track you plan to sample. Start with the major rights organizations like such as ASCAP, BMI, EMI or SESAC. Go to the repertoire and search the title or artist name, revealing the track title, performer, and the song writer(s), as well as the publisher names.

The listings give the publisher’s name and songwriter information, so next you need to search for the publisher on the net. Some of the larger publisher sites offer a mechanical licensing option (for cover songs) through the website. Record label information can be found just by pulling the song up on any music download site. Most old record labels have sold their rights to larger agencies.

NEXT STEP: CONTACTING THE PUBLISHER OR OWNER

The Harry Fox Agency has an online licensing interface.
The Harry Fox Agency has an online licensing interface.

The next step: find the licensing point of contact or a general information email to send your request. In your request you’ll want to include:

  • all the information found on the ASCAP/BMI site
  • what you sampled (how long the sampled portion is, time, seconds/bars)
  • a private link to your track
  • the length of the track
  • what the tentative release date is.

If you cannot find the publisher’s information, do not get a response, or just have a phone number, don’t be afraid to call to get the correct contact information! Yes, these companies may not be worried about your downloads (since no one is getting rich from electronic music sales alone), but it doesn’t hurt to make and record the attempt.

Don’t worry that you won’t be able to pay an upfront fee, ask and negotiate if they will take a percentage of the royalties. As long as you show them that there is something in it for them and have done the groundwork, it will be easier to negotiate. Be up front. Some of them are not used to dealing with electronic music artists and think that the label you are working with has a budget for every release. Some companies may not want to deal with sample clearance and treat it just like a cover song or mechanical license.

These are controlled by statutory royalties and sometimes covered by the distribution site as well. Communicate with them and make sure they are the sole owners of the song. On one of my recent releases, the sample I used is actually 71% owned by one company and 29% by another. Sometimes a record label may also be involved if the ownership is separate – you’ll have to go through the same process with them.

STUCK WITH NO RESPONSE

What if they don’t respond?  Consider releasing the track as a bootleg or free download, not making a profit off the track but can get the exposure. This is how artists like Morgan Page got their start – but it could also end with a public apology for taking someone else’s work. Julio Bashmore found himself in this predicament and paid an undisclosed amount to the original songwriters (see his public apology below).

Julio Bashmore's public apology.
Julio Bashmore’s public apology.

Finally, consider recreating the sample. Use different instruments or a similar sequence; try making it different. If you have access to live instrument players, then it can be treated just like a cover song. Once a song or track is out, it can be covered by anyone and performed as long as the statutory royalty rate is given to the original artists or copyright owner.

THE COPYRIGHT DILEMMA

Is it fair to use someone else’s hard work without paying them? Music is a creation that represents the artist and belongs to everyone’s ears, but when it comes to paying the bills, everyone is willing to go the extra mile to protect their work.

In my latest track (“Fire” produced with David Mel), I asked myself – can this be cleared, or can it be recognized? I started the conversation early on with the owners – so when a label came knocking (and later on Ministry of Sound!) we had the license paperwork ready to go. If you have a hit on your hands, why wait to clear the sample at a later point in time when it could cost a ton less to clear it early? If they can smell the money, sample owners are going to want a larger chunk.

Remember that every country has different laws, treaties, etc. that cover copyright law. As a disco house producer, samples are a part of the business. It’s not always worth it to obtain sample clearance, but if it is a well-known song, strongly consider it. Protect yourself by weighing the options in a world where technology like Shazaam can easily recognize bits and pieces of music and the copyright landscape is always evolving!

Saleem Razvi is a producer, DJ, and attorney – check out his production work here on Soundcloud.

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  • Ryan Salsuky

    Thank you so much for the clear explanation! I signed up for this Udemy course that also helped me gain a better understanding of clearing samples.

    If anyone wants to check it out, here you go: https://www.udemy.com/sample-clearance/

  • DJ Thornface

    Great tips, thanks for posting and sharing those awesome advices!

  • Audio Production

    Thank for informations, I am extremely impressed you write style
    i really enjoy this site cause its worth with the usefull info..thank dear

  • corporation

    Here’s an example of a sample replay service: SCORCCiO Sample Replays, worked on Duck Sauce’s – Barbara Streisand.

    http://www.scorccio.com + https://soundcloud.com/scorccio

  • corporation

    Don’t forget SCORCCiO Sample Replays!

    http://www.scorccio.com + https://soundcloud.com/scorccio

  • Person

    I just don’t understand what advice to take from the recent string of articles on this subject. On one hand, you’re advising us to go through a website that allegedly handles all of this by paying the copyright holders. While linking examples of other websites that also do it (beatport). But this article says something completely different, but cites the same examples of legal ramification(Julio Bashmore). Should I just assume that no matter what I do, if the song takes off someone is going to sue me?

    • Saleem

      That is a safe assumption if the sample is not cleared. People or companies usually only go after entities with deep pockets. If people are listening and talking about your music, they are also dissecting it and seeing why it works. Then if there are samples they look at what you sampled and how you used it. Then the word is out and the original artist comes knocking. If the pie you make keeps getting bigger then the original owners of the sample used are going to want a piece.

  • sean

    I don’t know about this- I read the wiki about sampling and it’s never clear about where the line is drawn. I understand if someone’s about to drop an album that it’s safe to take these approaches, but I hardly think anyone ‘needs’ to go to these lengths to use samples in their music.

    I can understand for major releases, but this complicates music unlike anything, and that’s really not the point.

    • Saleem

      Each producer will have to evaluate and consider if the process is it worth it for them in the long run. Most producers will not have to worry about this. If you choose to do it, then hopefully this guide will help. Music always influences and is sometimes used to make derivative works; that will never stop regardless of the legal constraints. With the amount of money on sales dropping, technology may provide a roadblock for sampling in the future.

  • This is good information. Thanks.

    In a bit of a different situation, how would one go about clearing a sample if the sample in question was a line from a movie. In one of my tracks I use the Line Bruce Willis uttered in the original Die Hard, “Yippe Ki Ya M*********r!” I am guessing the route to clearance would go a different way.

    • David De Garie-Lamanque

      this is a good question! there is a lot of this kind of sampling in Drum & Bass, where the producer takes a piece of dialogue from a well-known or cult classic film.
      For example, Blade Runner’s Tears in Rain monologue is heard in countless DnB classics, gangster movies are also a popular source, like Christopher Walken’s lines sampled in Audio’s “Pusher”, or the film Network sampled by Evol Intent and Black Sun Empire with the classic line “I’m a human being god damn it! My life has value!”, or the various samples from the Matrix heard in Hive’s “Neo”.

      What is the procedure to clear such a sample? do we have to contact the film studio and-or the sampled actors’ agents?

      • Saleem

        Legally, Yes. Your best bet would be a sample clearance service, but it will cost. Is Fox or other movie studio going to come after you? Highly unlikely. Does Bruce Willis care, probably not. A movie studio is even less likely to respond to your request and less worried about copyright infringement unless it is film based. Also, consider recreating the sample. This doesn’t avoid the whole copyright issue, since the script is still protected.

  • tswerve

    Excellent article!

  • marquee mark

    This is useful, I’ve got tracks that I’m finishing up and hoping for label attention soon but they have some vocal samples that will need clearing if it’s gonna go large…

  • nefnast

    I know that you can republish any book whose author has been dead for more than 70 years. Isn’t there something similar in music industry? For e.g. you can freely use any song older than 50 years, something like that? By the way copyright is a bullshit, music should be made to generate feelings and ideas, not turnover. Every producer should be grateful if he/she wrote a segment which inspires another person. Cheap stealers will be ashamed by the community anyway.

    • Saleem

      How long does a copyright last?
      The term of copyright for a particular work depends on several factors, including whether it has been published, and, if so, the date of first publication. As a general rule, for works created after January 1, 1978, copyright protection lasts for the life of the author plus an additional 70 years. For an anonymous work, a pseudonymous work, or a work made for hire, the copyright endures for a term of 95 years from the year of its first publication or a term of 120 years from the year of its creation, whichever expires first. For works first published prior to 1978, the term will vary depending on several factors. To determine the length of copyright protection for a particular work, consult chapter 3of the Copyright Act (title 17 of the United States Code). More information on the term of copyright can be found inCircular 15a, Duration of Copyright, and Circular 1, Copyright Basics.