“uh oh! my song has a sample! my other song's a cover! how do i release them legally?
February, 14 2022
Since the invention of the Fairlight CMI synthesizer in the late 70s, sampling has been part of the creation of new music and new sounds. Early samplers only captured and played back short sound bites or snippets. As the technology improved, cheaper standalone machines with more memory emerged like the Akai S950 and the legendary Akai MPC. One of the first hit songs that used a sample as part of the composition was Sugarhill Gang's “Rappers Delight” released in 1979.
Today, digital recording has changed how we release music, making it easier than ever before to use samples as part of the composition process. It took a while for copyright law to catch up, but today you need to legally clear any samples you use in your songs.
In this post, we'll look at how to release music that includes samples. We will define the differences between a sample, a cover, and an interpolation. And we'll explore some options for clearing those samples legally---before you release your music.
Defining Terms: Sample, Cover, and Interpolation
As a composer, there are three basic ways to use someone else's music in your own:
- Samples- A sample is a portion (or short replay) of another sound recording. Samples can include a rhythm, melody, speech, or entire section of music.
- Cover- A cover version, remake, cover song, or revival, is a new performance or recording of a complete song by someone other than the original artist.
- Interpolation- An interpolation is a replayed portion of a recording meant to sound the same as the original recording to avoid copyright clearance of the master recording. It has several definitions depending on the style of music. However, for the purposes here, in hip-hop, EDM or pop, an interpolation usually incorporates a melody or portions of a melody, (often with modified lyrics) from a previously recorded song whereby you re-record the melody instead of sampling it.
There is one more term that you need to be aware of. It is the concept of Fair Use. Certain uses of copywritten music do not infringe upon the copyright owner's rights. Under Fair Use, some uses of copywritten material are permitted. This is a complex area of copyright law and many myths exist regarding how Fair Use is determined. Nearly all examples of Fear Use fall into two categories: 1. commentary and criticism, and 2. parody. A news channel can generally play a clip of a song that they are critiquing, and a songwriter can generally use a song that they are making fun of without licensing or paying royalties. But the criteria is strict and court decisions have been unpredictable over the years. For example, if that same songwriter altered the song to make fun of a celebrity, politician, social situation, or anything other than the song itself, it would not likely qualify as Fair Use.
The four factors that generally determine fair use:
- The purpose and character of the use. (Is it commercial in nature or for nonprofit educational purposes?)
- The nature of the work.
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
- The effect of the use upon the potential market for, or value of, the copyrighted work.
Accordingly, we recommend clearing all usages with the copyright holders as a best practice.
Clearing Samples in Your Work
To clear a sample, you need to identify the owners of the master recording and the publishing (underlying composition). Then you must obtain the proper licenses before you release your song, and pay royalties to copyright owners. Payment can vary, but is typically based on the length of the sample and how it is used. For example, if you lifted the chorus from the original song, chances are good you’ll have to give up a big portion of the copyright percentage, if not your ENTIRE percentage to another party. In addition to giving up part of the copyright ownership of your new song, many publishers require a one-time sample fee which typically ranges from $750-$3000 depending on the nature of the usage.
Licensing A "Cover"
To record a cover of another artist's song for an audio recording, you must obtain a mechanical license. There are three ways to do it:
- Directly from the publisher
- From the Harry Fox Agency, if they administer that particular composition or song
- Through a formal "Notice of Use" for a compulsory license through the federal Copyright Office or clearance agency who handles such licensing.
A mechanical license gives you the right to reproduce and distribute a copyrighted song on a recording via physical, streaming or digital download formats.
Using Third-Party Clearance Agencies
Sample clearance laws can be complex. It can be time-consuming and expensive to clear any samples you might use in your music. While it is possible to do the work yourself, it often makes sense to consider a third-party clearance agency to handle the legal aspects of clearing the samples you used.
A clearance expert works on an hourly or project fee basis. They guide you through the clearance process, review your use, and advise you of the expected budget and any potential problems. Consultants can save you time, money and potential future legal headaches. They understand the process, costs, and the key people who license rights at the major music publishing companies and record companies.
How to Release Music: What Happens if You Don't Clear Samples
Unauthorized use of samples can subject you to liability for violating copyright, trademark, or intellectual property rights. You can be fined, and your music can be removed from the market at your expense. Treat every song you write as a potential hit when it comes to clearances.
Can Spotify and Apple Music “Catch” My Uncleared Samples?
The short answer is “yes”. Both services require the proper licenses to upload your music to their sites. While you can still upload your music without a proper license if you get caught your music will be removed following an unauthorized use notice. You may also be responsible for monetary damages to the copyright owner and be unable to continue using your account.
In 2018 Apple Music acquired the audio-recognition app Shazam for $400 million. Their technology is used to identify and compensate artists for their creative input into a song, including the use of samples. Since then many proprietary BOTS have been developed to seek out and flag infringing songs on various services. Even celebrities and major universities have recently found themselves embroiled in costly copyright infringement claims for posting unauthorized songs and photos on their social media pages that were caught by automated BOTS. Strange as it sounds, even if they performed the songs and were the subject of the photos, the actual content can belong to someone else.
The Bottom Line...
How you release your music has changed with the use of samples. If you create music and plan on releasing it to the public, you need to clear any samples you use. Obtaining the proper licenses for the use of samples you use can be difficult and time-consuming to do on your own.
That’s why working with a third-party consultant to clear your samples is a better idea. A Music Clearance Consultant will know the different licenses needed for samples, covers, and interpolations. They will understand the clearance process, have the connections to get the job done, and save you time, money—and your sanity. And you’ll sleep better at night knowing your music has a clear path to success.”
