Sampling And Intellectual Property: What You Need To Know

Sampling And Intellectual Property: What You Need To Know

Done correctly, sampling can breathe new life into otherwise forgotten music. Sampled tracks can have a fresh, yet slightly nostalgic feel that appeals to a broader range of listeners. Unfortunately, while sampling can pay artistic dividends, it can also prompt legal nightmares. Use the wrong sample without permission, and you could find yourself in for a horrific legal ordeal. Thankfully, it’s possible to sample your favorite songs without causing ill will; the right entertainment lawyer in Los Angeles can help you take the necessary precautions to avoid later legal action.

How the Copyright Act and Fair Use Impact Sampling

The United States Copyright Act offers valuable protection for both music compositions and recordings. Copyright owners enjoy extensive control over when, how, and by whom their work is used. In most cases, the copyright owner must grant his or her express permission before a work is used. Often, such permission will only arrive following a licensing deal that involves fair compensation for the original artist.
While the Copyright Act grants a great deal of control to original artists, it may occasionally be possible for others to legally recycle musical concepts. In such cases, fair use may come into play, depending on the extent to which the new work borrows from the original. With direct sampling, however, permission is nearly always required. Samples utilize a specific portion of already recorded music; it may be difficult for artists to argue that they’ve transformed the original to the extent that fair use would apply.

Key Tips For Sampling Safely

You’ve discovered a portion of a musical work that you suspect would play well into your musical composition — what next? With the right approach, you and the original artist can arrive at a mutually beneficial arrangement that delivers attention to the original piece while allowing you to bring a dynamic element into your work. You’ll want to proceed with caution, however, as one wrong move could leave you in a world of legal trouble. Several famous and seemingly powerful music industry players have fallen victim to lawsuits related to sampling over the last few decades. In many cases, these artists could have avoided such trouble had they’d entered into the process with a proper licensing contract.
Intellectual property cases related to sampling prompted strict federal precedent during the 1990s. As a result, recordings cannot be sampled unless the copyright owner grants express permission and receives due credit. Artists can be found responsible even if they are not aware of the unauthorized nature of their sampled recording. Due diligence is critical. Even if working with producers or other artists, musicians should feel confident that they’ve received proper permission before they proceed with sampled tracks.

Interpolation

Due to the cost and difficulty of sampling, many artists opt for an alternative to sampling known as interpolation. With interpolation, the artist re-records specific elements of the original music. Examples could include portions of original lyrics or melodies. This approach allows artists to capture the feel of sampling without actually relying on the original recording. As with sampling, permission is critical for interpolation. However, negotiated fees for interpolated works are nearly always more affordable than sampling.

Mixtapes

Some hip hop artists mistakenly believe they can get away with unauthorized sampling or interpolation on mixtapes. After all, mixtapes are distributed without any intent of securing compensation. In reality, however, permission is just as important for mixtapes. The main concern isn’t necessarily how much revenue the sampled work produces, but rather, how it impacts profits related to the original work.

Protecting Your Work From Would-Be Samplers

What if you’re the original artist — and you fear that your work will be used without credit? This is a common source of anxiety in the music industry. Remember, sampling isn’t always bad; the sampled work could potentially drive an increase in interest in the original. Still, without proper protection, you risk considerable damage to your musical legacy.
First and foremost, you’ll want to obtain federal copyright protection as soon as possible. Although your work is technically copyrighted as soon as it’s recorded, you’ll find it far easier to argue your copyright in court if it’s officially registered. If, once registered, others seek permission for sampling, be open to entering into licensing negotiations. You have the final say, of course, but by shielding your work from all samples, you risk missing out on a variety of opportunities. For the right price and under the right circumstances, you stand to benefit when other artists sample your work. If, however, you find that artists have used your work without your express permission, you’ll want to team up with a trusted entertainment lawyer to ensure accountability — and to minimize the potential damage.
Whether you’re looking to sample a piece or protect your work, strategic legal action is critical. Give credit — and payment — where it’s due, and you can emerge with an amazing track that makes the best possible use of sampled or interpolated music.