With the growing popularity of hip-hop music and remix culture, sampling has become common practice among a wide variety of artists and producers looking to associate with those who have come before them. Sampling is the act of integrating sounds embodied in a pre-existing sound recording into a new musical work. As a matter of copyright law, when an artist “samples” another artist’s music, they must receive permission from the copyright owner of the sampled music or risk committing copyright infringement.
Permission: Who, What, Where & Why
As we shall soon see, copyright infringement carries a very substantial risk of burdensome legal consequences. Indeed, an artist who samples without permission infringes on both the copyright in the sound recording and the copyright in the composition. Specifically, this duality of infringement is due to the fact that a track with samples from pre-existing sound recordings is considered a derivative work. This means an artist may be required to obtain permission from all of the relevant copyright owners, which usually entails finding the record label and publisher associated with the track (sometimes the artist and/or songwriters must give their permission as well).
Sometimes a sample may be short enough in length or incorporated in such a way, so that it constitutes “fair use” or “de minimus” sampling. Unfortunately, while fair use is an exception to copyright law, it is not a highly reliable defense, as a judge or jury will ultimately decide whether your use falls within the parameters of the fair use doctrine as prescribed by the courts. Artists should consult a music and entertainment attorney in order to evaluate the risks associated with their specific use and the degree to which they would have a viable defense if the matter were brought before a court of law.
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Pre-cleared Content & Soundalike Recordings
There are also avenues for accessing pre-cleared content including pre-cleared CDs or services such as Tracklib. This simplifies the process by allowing an artist to search through pre-cleared music sample libraries. Make sure to read what rights you are granted as a consequence of purchasing a CD or using such services. Often, the end-user is granted a non-exclusive license to use the work, but there may be limits on such use that narrow the scope of said license. For example, while you may include the sample in a new musical work, almost all CDs or services do not allow you to re-distribute the samples themselves.
Another alternative option is to recreate the sample by producing a soundalike recording. As a matter of copyright law, an artist who creates a soundalike recording likely does not need to obtain permission from the owner of the copyright in the sound recording, as the actual sound recording is not used. Creating a soundalike recording means playing and recording the “sample” on your own so that it sounds like the sample you intended to use as opposed to sampling the actual pre-existing sound recording. However, this may be contrary to the artist’s reasons for using the sample in the first place and the artist must still obtain permission from the publisher or the owner of the copyright in the composition.
Consequences of Copyright Infringement
In the context of music sampling, copyright infringement occurs when an artist samples a track without obtaining permission from the copyright owners. Some of the possible consequences include “statutory damages”. Statutory damages are monetary awards granted to the plaintiff as a matter of law, meaning they are prescribed by statute and generally not subject to the court’s discretion nor based on the plaintiff’s ability to demonstrate that they have suffered damages.
Under certain circumstances, the court may even issue equitable relief in the form of an injunction. This means that the court can instruct you to stop sampling the plaintiff’s music and to discontinue the distribution of any singles or albums that include the sample in question. A court may even go so far as to demand that any infringing materials already in existence be destroyed. Finally, if the court finds that the infringement was “willful,” plaintiffs may be awarded hundreds of thousands of dollars in damages.
