Sample clearance – a cautionary tale

sample-clearanceI used to be a music lawyer and I was a bit of an authority (for a while) on sampling and sample clearance in the early ’90’s.

Then I ran a bunch of dance labels and worked with a lot of electronic artists.

I have cleared a lot of samples but I have released way more records with samples in them that we didn’t bother to clear.

Why?

Because we thought that no-one would notice that we’d used their music – these were generally small specialist underground records – and that if they did, we would be able to agree something after the event, if the need ever arose.

The reality is that it was too much bother and too expensive to try and clear a sample of an obscure and hard to find piece of music or of a snippet of a big successful tune when you knew that your record was going to sell just a few thousand copies – i.e. we felt at the time that the risk was well worth it.

And hundreds of thousands of records have been released with uncleared samples in them.

Will I get sued for using a sample?

There are very, very few cases where someone who samples a record ends up in court – and there’s two reasons for that.

If your record containing an uncleared sample goes from being an underground momentary thing of interest to a limited audience to about to become a radio/commercial hit of any scale, you will quickly clear or remove/replace the offending sample(s). Well, you will, or the indie or major label that have come to sign your record will do it for you.

It’s when a record appears on everyone’s radar that it becomes time to clear it. At that point, if you don’t, you’re going to be in trouble.

Remember the adage ‘”Where there’s a hit there’s a writ” – it is the absolute truth.

Secondly, if your record contains a sample and you didn’t clear it, you are infringing the original owner’s copyright – and they have you ‘bang to rights’. If they do discover your small scale release and if they care enough to contact you and point out your infringement, then in most cases they can see that going to court is pointless as you, the sampler, won’t have any money worth suing you for! So, generally they approach the sampler and point this fact out and you work out a deal.

Hence, court case avoided.

What is sample clearance?

When you sample another person’s music you are reproducing two different copyrights – the recording itself but also the underlying musical work (the song – that part which a music publisher deals with, rather than a record label).

Elvis-Presley-Leiber-Stoller

Leiber & Stoller go over a song with Elvis Presley

For those that find that a difficult distinction, think of the days when all pop stars sang songs written by songwriters. Think Elvis and Leiber & Stoller.

Leiber & Stoller create the copyright which is the song – it can be written on sheet music before it is ever performed and recorded. Then, when it is performed by Elvis, he (or his record company) have created another different copyright in that recording of that performance. Every new and different recording is a new copyright.

Hopefully you can see that these two copyrights give rise to two income streams – one for the song and one for the recording.

Leiber & Stoller get paid for every radio or live performance of the song (whether that is a spin of the recording or Elvis singing live) and they get paid for every record made (that’s called a mechanical royalty and is paid by the record company – more on that another day as that get’s confusing!).

Elvis only gets paid for every record made and sold – that’s the record royalty. (Just to confuse you some more, many countries, but not the US, do have an airplay royalty for the recording as well).

So when you sample a piece of that recording, you are also sampling the underlying song and you need to get the permission (or ‘clearance’) of all the owners of the copyright in the recording and the song.

That means contacting the record company that owns the recording you have sampled but also all the songwriters and/or their music publishers.

Generally the record company will take a fee (perhaps tens of thousands of dollars) and a per unit royalty for every record sold and they may well impose limitations on the use. The songwriters and music publishers will usually take a percentage share in your new song that has sampled theirs. The amounts being down to negotiation.

The thing is, they have you over a barrel.

bitter-sweet-symphony-sample

'Bitter Sweet Symphony' was one big sample!

Once you have sampled their work and told them, they can ask for whatever they want.

The Verve gave 100% of the song ‘Bitter Sweet Symphony’ to Jagger and Richards as it sampled a version of one of their songs. Interestingly the recording that they sampled wasn’t the Stones, but an orchestral version by someone else. Read more about that case here.

Once you have the agreement of the copyright owners of the song and recording, you’re set.

This existence of two copyrights also explains the very common misconception amongst musicians that they do not need to worry about sample clearance if they ‘re-record’ a sample.

True – if you re-record the sample that you lifted from someone else’s record, you don’t need to clear the recording, because you have made a new one and you own the copyright in that.

But, your new recording still reproduces the underlying song and therefore still infringes that unless you clear it. Re-recording deals with half the issue, but don’t forget the other half.

How much is too much?

Usually, any little bit is too much.

In fact, the law and exactly how it is applied depends on where in the world you are. There are treaties between countries that aim to apply essentially the same copyright laws throughout the world but there are specific differences.

In very general terms you are infringing the rights of another person’s copyright if you ‘substantially reproduce’ their work. And the definition of what counts as being ‘substantial’ is usually not set out in a country’s relevant copyright law (the Acts or Statutes) but is based on interpretation by judges in cases that go to trial. Then future cases refer back to the decisions in prior trials – this is what is called ‘case law’.

However, since most cases don’t go to trial and get settled or negotiated long before a judge gets to deliberate, there are very few cases that a judge can refer to for guidance. Those few that have gone all the way in the UK and US have led lawyers to err very heavily on the side of caution and that is upheld by the way and the levels at which all involved negotiate clearances on a day to day basis.

In other words, the person being sampled whose permission you are seeking has all the cards.

If you have sampled a single recognisable note, this may well be seen to be ‘substantial’. If any reasonable person listening to your new record could tell that you have used a sample, then it is almost certainly a substantial use and legally requires clearing.

But you can take the drums only from a track and that’s fine, right?

Err, no. Probably not.

If you have sampled a recording you fall at the first fence since you cannot deny that those drums (or whatever part you’ve taken) come from the other person’s recording. Given that admission, even the smallest section is probably enough to require permission.

I can’t be sure, as it takes a final judgement in a court case to get the definitive view, but should you risk it?

In the real world, if you’re a small-time artist, you may well do just that. And I wouldn’t blame you. As I said above, hundreds of thousands of records have been released without clearing samples and almost all ‘get away with it’ – particularly so if the release is small-scale and no significant money is made.

But, it is extremely important to note that if you get sued the amount of a claim by the person you have sampled, in most countries, need NOT be related to how much you made from releasing your infringing record. The decision by a judge to award damages to the person you sampled is usually equated to the loss they have suffered rather than the money you made. And that loss can be based on anything that they can argue.

Sure, often it does refer to the amount you made from releasing your infringing record, but not always.

The cautionary tale

So, this is where you get to see what happens when it all goes wong!

At the end of last week a Danish court case concluded that two musicians who had made a record in 2003 by using a sample had infringed the rights of a songwriter and a record company and ordered them to pay damages approaching $150,000 – way more than they ever made from the record.

This is enough to finish their careers and affect them for the rest of their lives.

Read all about the Djuma Soundsystem case here.

This case could be reversed on appeal and, depending on where you live, it is unlikely to be used as ‘case law’ in your country and therefore it won’t lead to a swathe of sampling cases against the little guy.

But it is a reminder that any one of the hundreds of thousands of records that have been released (or are going to be released in the future) with uncleared samples and which the artists think are going to be small scale successes, could lead to you being sued.

Should you worry?

No, I don’t think you should, but you should be aware.

I think the Danish case is unlikely to be upheld and the guys were very unlucky that it didn’t get negotiated to a settlement that they could afford before going to trial. In almost all cases this would have been resolved before going to court.

And, of course, if your release is likely to be a commercial success, do deal with any sample issues before release. Success brings attention and people will then sue and they will push hard for a very stiff deal if you ignored their samples!

Just remember that if you sample a record then the basic position is that you are infringing the rights of two sets of people and that could come back and bite you in the ass. Sample clearance is the answer but we all know that in the real world that’s not always going to happen.

Hopefully, forewarned is forearmed!

 

 

 

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Ian

Ian Clifford is the owner of Illicit Media, a music management and consulting company. He is also the owner of Make It In Music, an online site that is the ultimate resource for aspiring musicians offering advice, tips, and insight on all the skills needed by modern artists to succeed in the rapidly changing music industry.

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Sampling – a cautionary tale « Make It In Music Daily - October 11, 2011 Reply

[…] if you want my take on sample clearance – get over to the main […]

Bonafyde - October 12, 2011 Reply

Sometimes its hard tp get samples cleared, as an up ncpming artist u just dnt know how to go about it. Its a headache wen the label ur trying to cntact is an indie label that has since stopped operating or doesnt have a website or contact details anywhere on the net ;(

    Ian - October 12, 2011 Reply

    That’s very true. Often they’ll ignore you unless you’re a signed artist or they’ll make unreasonable demands for fees/ percentages. Or, as you say, you can’t get hold of anyone from the defunct label. Keeping a record of your efforts would be wise as if anything came of it you could always prove your efforts to find them and do a deal as mitigation.

Clearing Your Samples? - Insomniac Studios - October 13, 2011 Reply

[…] used to be a music lawyer and I was a bit of an authority (for a while) on sampling and sample clearance in the early […]

News: A Practical Look at Sample Clearance - October 13, 2011 Reply

[…] As someone that is relatively familiar with the issue of sample clearance, I had the pleasure to read this article via @MakeItInMusic the other day. The author’s aim is to help simplify this all-too-complicated issue and acts as a basic reference for any artist, producer, or label that is thinking about using an original source piece or “sample” in their next song. Keep in mind: this is not the final word on this issue, but a good start. Find the complete article here. […]

Indie on the Move: Blog - October 16, 2011 Reply

[…] used to be a music lawyer and I was a bit of an authority (for a while) on sampling and sample clearance in the early […]

Sampling – A Cautionary Tale | Sounds and Success - October 20, 2011 Reply

[…] used to be a music lawyer and I was a bit of an authority (for a while) on sampling and sample clearance in the early ‘90’s. Then I ran a bunch of dance labels and worked with a lot of electronic […]

Anon - November 29, 2011 Reply

Not sure what to do. have made four or five tracks using samples. Although the samples are mostly from relatively small records from 70s and 80s all the samples are recognizable. I have yet to release anything or upload anything onto the web. The chances of even getting a few people to listen to my stuff are very small and of course currently I have no interest in selling the music. I simply want to upload onto the internet. Would the advice be just to go for it. Obviously sample clearance would be crazy in my case but I guess I have no personal liability for uploading music onto internet? as I am not selling is the worse they can do is ask me to take it down? thanks for any help.

    Ian - November 30, 2011 Reply

    Hi – the advice in the post is that there is no safe use of samples. If you then choose to upload, release or sell tracks with uncleared samples in them, you are exposing yourself to a liability.

    I could not advise anyone that it is safe to ignore that advice.

    However, I have never heard of anyone getting into any serious trouble for tracks that have been uploaded to something like SoundCloud but not put on sale. In fact, tens of thousands of tracks with uncleared samples are put on sale every year. In almost every case it is simply not worth the person infringed doing any more than instructing you to stop selling or take down the tracks.

    That said, the legal position is unclear and you could be unlucky.

    Sorry that I can’t be more helpful than that.

    Ian

      Scott Coleson - January 6, 2016 Reply

      Question I released an album and have a song with a sample that I thought the producers cleared turns out I was wrong the artist of the band contacted me about it and I missed his phone call have called back and I am waiting for his response I am seriously pissed any afvice would be great

        Ian - January 11, 2016 Reply

        Hi Scott

        Hopefully you’ve heard back by now.

        It depends what your contract says. As the label you should have a warranty from the band and producer that they are responsible for all sample clearance. If you do you could still be liable but will be able to rely on their liability to you – often this can be meaningless if the band and producer have no means.

        If you don’t have such a a warranty then your liability is more absolute.

        However, fingers crossed that it never becomes an issue.

MrEarvin - June 20, 2012 Reply

Great article. Love the site, and the accompanying free guide! Had a question and wanted to know if any of the writers or even readers could help…I want to know how to address the publisher when you want to recreate a sound from scratch when their artists is what inspired your work? It is basically an interpolation of sorts, but I want to make sure the right people are given acknowledgement or even royalties if need be. Can’t seem to find any guidelines on this out in the “interconnected networks” and any assistance would be greatly appreciated.

    Ian - July 8, 2012 Reply

    Hi

    It’s basically the same as clearing a sample. If your recreation of a sound is substantially similar to the sound that inspired it, then you’ll need to clear the publishing by contacting them and going through their clearance process – this usually consists of submitting a form that they’ll direct you to with all the details of your composition and recording and of the composition you have sampled / interpolated. And sending them a file of both recordings.

    Hope that helps.

    Ian

Sam - July 30, 2012 Reply

Hi Ian-

I actually recently submitted a clearance request but was denied. The song has already been recorded & I’m proud of how it turned out. If it is released for free & strictly for promotion, is this OK? This seems to be a bit of a grey area, but can you shine some light?

Thanks,

Sa

john - October 19, 2012 Reply

Hey Ian, great article. As a ‘newby’ electronic/club music producer, im still trying to learning how it all works when it comes to sampling. I am currently in the process of creating a track, and i found two Disco dance tracks, i’ve currently sampled them both into the song. The samples are literally half a second long, and i’ve changed the EQ on them to change the sound, and ones even been reversed.
Should i be worried about selling this song?

    Admin - October 23, 2012 Reply

    Thanks John.

    The answer is in the post and the comments. Strictly speaking that is clearly an infringement and as with the guys in the article you could get sued. BUT, I’ve seen thousands of records that do just that get released and never suffer any issue.

    99% of people wouldn’t sweat it and would just release them at a ‘club’ level and then if the track is about to break they’d deal with sample clearance then.

    But, it is a gamble, even though it’s a very small one!

    Ian

jack - October 22, 2012 Reply

I currently have created a few songs which i am using a few samples in. Im not doing it for profit. im uploading it to soundcloud just for people to listen. Im not even allowing people to download it.
Can i still get sued?

    Admin - October 23, 2012 Reply

    Jack

    See the answer above. You could get sued but it is very very unlikely. My advice has to be that you are at risk, even though it is a tiny risk.

    That said, I put tracks on SoundCloud that are full of samples all the time.

    Ian

Bill Bailey - November 9, 2012 Reply

Ian – this is really helpful. I record DJ Shadow/Orb type nonsense and although I do not use any musical samples ( I write all the music), I do use short vocal clips from videos on you tube. Do the same rules apply, and if I’m not releasing the music on a grand scale, should I keep quiet until world domination approaches?!
Thanks
Bill

    Ian - November 13, 2012 Reply

    Bill – sorry for not answering sooner.

    It’s the same answer as in the article and in various replies. The bottom line is that when you copy anything from anyone else’s recorded work, that is an infringement and you open yourself up to being sued – exactly as the case was with the producers in this case. That applies to a little bit of vocal from a YouTube video too I’m afraid.

    However, it is extraordinarily unlikely that you will get the same treatment as they have – they were just very unlucky. I still see endless numbers of tracks that contain uncleared samples and as an unsigned musician who isn’t really making any money yet from their work what choice do you really have but to take a very mildly gung-ho approach.

    I couldn’t tell you that you’ll be safe nor can I endorse or encourage you to use uncleared samples, but if I was in your shoes, I would.

Esco - January 4, 2013 Reply

Brilliant article, and I agree with all of your points! I think record labels are missing a trick (and potential income stream) here. They should make their sample clarence process more transparent and open it up to the wider industry/public. Thousands only release non-cleared samples because they dont know where to begin clearing.

    Ian - January 11, 2013 Reply

    Thanks Esco.

    The reality is that making sample clearance a painless and centralised process would require a vast amount of co-operation between all labels and publishers (for example, when a sampled song has multiple writers with different publishers – they’d all need to be separately approved) and I just don’t think it’ll ever happen. Which is why lots of musicians end up releasing small scale releases with no sample clearance and exposing themselves to the risk of legal action.

    It’s a problem.

Kewba » Kewba on Sampling - February 14, 2013 Reply

[…] staggering. As a man with a keen interest in the world of sample clearance, I found this article on Sample Clearance . A tale about the the dos and don’ts of the now dodgy world of […]

Sean - March 12, 2013 Reply

Ian- thanks for the insight this article is a breath of fresh air, I am recently in the process of clearing a sample. In particular a cover version of an original work that has been covered several times by numerous well known artist. Is there a grey area when it comes to sampling a cover version of a song? It seems to me that the artist that have covered the work in the past would had to have obtained clearance. Yet all of these versions had their own respective commercial success. At this point I’m skeptical of the outcome.

    Ian - March 13, 2013 Reply

    Hi Sean

    I think you mean that you have done a cover and also used a sample of the original track in your cover. If so, you only need to clear the recording element, since with a cover, all the rights in the underlying song are as per the original – so no clearance is needed.

    If I’ve not quite understood what you mean – here’s the lawyer bit. If you sample a cover, you’d clear the recording with the cover artist and the song with the original writer (probably the original artist). It’s not a grey area – the legal copyright situation is the same. You just have to remember that with a sample there are always two copyrights to clear – the song and the recording. This only changes in relation to my first answer. If you take an element of an original recording which you yourself are covering, then you wouldn’t need to clear the song as you are already acknowledging that it is 100% owned by the writer whose work you’ve covered.

    I hope that makes some sense – reading it back it sounds complicated even to me and I understand it!

bpd - March 21, 2013 Reply

Ian,

Very engaging, straight-talking article. Best Internet read in a moment. Thank you. As an artist on the verge of releasing a DIY first album, someone who for years used (uncleared) samples in music and little else, it’s exactly the kind of nitty-gritty “maybe yes, maybe no” debate making me consider law school. [Any thoughts for a person entertaining copyright arbitration as a career, in today’s climate?]

I’ll try to keep these questions brief.

1) My thinking was to set up a legit company like a record label, maybe LLC. If an uncleared sample hit the fan, the business could take the brunt of it, not an individual. This is too easy a solution though, so what am I missing? Would such tact make an artist more or less tasty in terms of a lawsuit?

2) I read the Djuma link. And but so, when a copyright holder’s people bust a small-time artist for sample infringement, as illustrated, is the artist’s gain from the sample a function of how likely a lawsuit is? I’m hoping for quantitative odds here, in your opinion, not a “perhaps”. When iTunes sales break 100k get a lawyer, or, expect a stern “cease and desist” letter? I’m not concerned personally, but numbers would be instructive.

3) The Danish Djuma ruling highlighted above is rather esoteric, legally, from an American point of view and very much just as dug up as the string sample those unlucky producers lifted. The US seems to set the legal tenor here. What, if any, instances champion where copyright holders have encouraged recontextulization of their recordings? These agreements don’t create paperwork, do they? Lessig and CC are the future in my opinion and hold an increasing sway, eh? What’s on the horizon? Like VHS rentals and MP3 downloads, it seems the industry is still a step behind.

Thank you again for your compelling article,

bpd

[Ladies and gentlemen: If you’re on this page and haven’t seen the AMEN BREAK !yt documentary commented upward, do yourself a favor.]

    Ian - March 21, 2013 Reply

    Hi bpd.

    I did law school and worked as a lawyer and then jacked it in for music!

    Your questions:

    1. Having a limited liability company and properly vesting the rights in it would give you protection, but there are circumstances where someone looking to sue you can go behind the company if they think it has solely been set up to offer artificial protection. I have never seen this used in a sample case though and is more usual in corporate cases. There are other issues though in vesting your songs and recordings in a LLC – what happens to them if the company is closed? Does it make you less attractive to sue if done right – yes probably!

    2. The answer is in the article. I can’t give you specific advice and tell you that if you use uncleared samples you’ll be OK – but the Djuma guys were very unlucky. Almost always people who get caught using uncleared samples get a chance to settle. The law is that you can be sued for a copyright infringement for making a recording including a sample that never leaves your studio. The act of creating it is the act of infringement and you could be sued. It need never go on sale and certainly doesn’t need to be successful. In most countries the amount earned by the samplee from the infringing work is irrelevant in causing the likelihood on a legal basis of a claim and of quantifying the damages payable. HOWEVER, in 99.9% of real world cases small time artists never get sued and the odds of you making a record using a sample, and then getting sued in a situation where the person suing you wouldn’t just take all your proceeds (and little if nothing extra) are extremely low. Maybe less than 1 in 10,000. That is, of course, my opinion, and not legal advice!

    3. I’m not sure that I understand this point – sorry! Lessig and creative commons are about theory and not law. Obviously if someone says their rights are creative commons then you can sample with impunity. But, that’s never going to be the case with most copyright holders – major labels etc. I think copyright holders will try to protect their rights for a very long time into the future yet but, in the real world, they will seek damages and a share of revenue from unauthorised exploitiation in almost all instances rather than hound people into penury.

    Hope that helps.

    Ian

Sample Clearance and Stealing in EDM - May 26, 2013 Reply

[…] to sampling in electronic dance music. In MakeItInMusic.com, a former music lawyer details the liberal sampling without clearance that went on in the underground days of the early 1990s. For such artists, sample […]

Iain Sanderson - August 15, 2013 Reply

Hi

I read your article with great interest as I have recently become a victim of this. I released a small time record with a Canadian label 3 years ago (i’m English). They in turn used a UK based distributor to submit the track to several large online retailers (not mentioning names).
My profits to date approx £10 (50% of royalties) – its a hobby and I do it for kicks not for money!

The distributor recieved a cease and desist letter from a German legal firm representing a large German record label stating we were in breach of copyright and they were going to sue us if we did not remove the track. The sample was from an acapella website – which clearly stated royalty free and did not state the original artist names so was impossible for me to track down. It was a 10 second clip of the vocal which was used. I, along with thousands of other producers have used samples like this in records and have never had any comeback.

We agreed to instantly remove the track from the stores where it was up for sale, apologised for any issues and offered them all the money from the profits along with subsequent proof of this. They demanded €1000 euros in legal fees and €1000 euros in costs.

My problem is how does international law apply to copyright? I mean i’m at the bottom of a chain – my contract with the label states any disputes will be resolved under Canadian law – if the label signs subsequent contracts with others regarding my release, am I still ultimately responsible for the breach? My contract states that i must clear samples before release – however the labels contract with the distributor states the same thing.

The distributor has managed to negotiate it down to a total of €750 and has now paid and expects us to cough up in line with the labels contract. I haven’t had a chance to negotiate at all, nor can I afford to pay this sum. The fact that its a genuine mistake in not clearing the sample beforehand doesn’t appear to factor into this at all…

Any thoughts or advice on the above would be appreciated!

regards

Iain

    Ian - August 26, 2013 Reply

    Hi Iain

    Sorry I didn’t reply earlier. Long holiday!

    The bottom line here is that the warranty and indemnity in your agreement (provided that it’s written properly from the point of view of the label – but it probably is) almost certainly makes you liable for all costs resulting from your use of an infringing sample.

    It doesn’t matter that you thought it was royalty free (although you could have a claim against the acapella site you got it from on that basis) and the law only cares that it is a reproduction of a copyright that is owned by someone else.

    The chain of title and international law means that you’re at the end of the line for the liability. You indemnify the label, they indemnify the distributors who in turn indemnify the digital retailers. If this sort of thing happens, you just get the claim passed down the line.

    Sorry that it’s not better news – you have just been desperately unlucky.

    I can’t remember whether I said in the piece but I have released 1000’s of records, many with uncleared samples and got hit once – for £5,000. It was very early on in my career. We paid it and carried on releasing underground records without clearing the samples and never got sued again.

    It really is too much bother for most rights holders to do anything about. Work out a way to pay it back to your distributor and better luck next time!

    Ian

      Iain Sanderson - August 26, 2013 Reply

      Hey, thanks for the response on this, been tearing my hair out! I do agree that I have been very unlucky as I also know a lot of other producers who use samples and there’s never any problems.

      Just to make things more interesting it seems the distributor has been hit with 2 other claims from the same company but for different tracks in their catalogue – nothing to do with me but I can’t help thinking it might be the same sample that’s been used….

      Thanks again for the advice 🙂

Josef - August 17, 2013 Reply

Hi Ian,

I’m a hobbyist musician and producer who has been using software to create music since I was in my early teens. Unfortunately, a great deal of the now hundreds of songs I’ve written were created using unlicensed software and (royalty-free, if licensed) virtual instruments and sample libraries. To be honest I don’t know where I stand on this morally at the moment, to date all of these songs just sit on a hard drive, but every now and then I think about making use of some of them. Do you know of any cases where artists who have used unlicensed software or sample libraries have been approached for such infringements, and if so how did the copyright holders determine that the software was unlicensed? Further, would any of this be a concern if the songs were simply used as part of an internet video series?

Thanks in advance for your assistance,
Josef

    Ian - August 26, 2013 Reply

    Hi Josef – sorry for the delay – I was on holiday.

    I think you need not worry about having used cracked software as your DAW – I don’t see how anyone is going to know or care and it doesn’t have any effect on the copyright of the finished master.

    On the other hand, unlicensed samples could get you in hot water – as this article states. Although you are most likely to never be sued for creating a track that has an uncleared sample – it can and does happen.

    Sorry, but that’s the only advice I can give. Whether to release the stuff then becomes your own decision, but it is a very slight gamble. I couldn’t possibly suggest that it’s worth the risk but if you look at my comment to Iain above you’ll see what I do.

    Ian

John - December 12, 2013 Reply

Hey! I’ve currently gotten myself a record deal with an overseas company. My music is heavy sampled type dance music, most from disco/funk tracks from the 70s.

I’ve told them about the samples, and told me not to worry, it will be to expensive and not worth it. (Looking at there catalog most of there music has alot of samples as well, probably not cleared by the looks of it)

If i do get caught, could i get sued, or is it the record labels responsibility?

Thanks

    Ian - December 13, 2013 Reply

    John

    You are liable as well as the record company for any samples you have used. However, if they are happy to release uncleared samples (as most small labels are!) then you should ask them to accept that in your contract – that it is their responsibility.

    Honestly, they probably won’t but you can ask.

    If they don’t, then, although they are on the hook for the samples if they get sued, you are too.

    As I have said many times in this thread, it’s very unlikely that you’ll get caught and sued, but it does happen to 1 in 1000.

    Best of luck.

    Ian

Maxim - April 4, 2014 Reply

Hello!

Hi, I got a couple of specific questions: what about clearance of royalty-free samples? I mean that not a piece is ripped from someone`s song, but a loop, riff or effect is used from sample pack – a sound that was specially created as a raw material. How it`s being controlled? Do I need to prove that I own legal CD or download? If someone uses illegal stuff from torrent, how it would be disclosured and will consequences be as bad as it could be with uncleared sample from a song?

Thanks

Max

    Ian - May 1, 2014 Reply

    Maxim – sorry for not replying sooner.

    If a sample comes from a royalty free CD and the terms of use that you agree to when you buy that CD are that you can use it for commercial release without any further action, then you’re all set.

    I have seen sample CDs that require an artist to notify the maker that they have released something but that no further payment or licence is required – after all that is basically the idea of sample CDs.

    If you downloaded a sample CD from a torrent then clearly that is technically an infringement and you wouldn’t have made a contract (by buying the samples) on the terms offered. Sp, theoretically your use of that torrented sample would be an infringement – but how would they ever know?

    If you were about to have a hit or be sued for a recording that you had made with torrented samples I’d be rushing out to acquire a legit copy of the source material.

    Ian

Paul - April 8, 2014 Reply

Hi Ian, thanks for this article!
I can see in youtube or soundcloud a lot of remixes and/or mixtapes using samples without clrearance, even using names of the original artist in the title of the song, i mean if i put a song online for free, not thinking about making money of it, would they sue me for that? even if it goes popular?

    Ian - May 1, 2014 Reply

    Paul – sorry, I meant to reply sooner.

    I’m afraid that the article is pretty clear on this. The law is that, yes, you could be sued for any use of a recording that contains samples, whether you have released it for sale or not. The act of making it is an infringement.

    However, in the real world, you are right, the amount of copyright infringement of the sort you describe on YouTube and SoundCloud is ENORMOUS – probably hundreds of thousands of incidents every day. You would be very unlucky indeed if you were to get sued for doing it. You may well get it taken down but anything more than that would be bad luck…but it can happen as per the article.

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