October 25, 2021 | Written By Peter J. Speroni
Song sampling occurs when one part of another’s song is used and incorporated into a different one. In the world of sampling music, make sure you fully understand what kinds of permissions you may need. There are different ways to sample and the ways in which you incorporate the original song into your work can impact who you need permission from to ensure you’re following music sampling laws.
For example, often you hear the basic “cut and paste” type of sampling a song. These samples are when a producer cuts the exact part of the original song that they want to use and pastes it into the song they are creating. If they use this method, then it is vital that they secure permission from both the publisher and the record label (or whoever controls the Master) of the song they are using. Why? Because two things are used; a portion of the original Master file (generally controlled by the record label) and the underlying composition melody and possibly lyrics (controlled by the music publisher).
In this situation, you may have a publisher that controls the composition and a completely different entity (often a record label) who controls the Master. And since you used the exact cut and pasted version of the original song, you will need permission from both controlling entities.
On the other hand, if you rerecord the portion of the original song, for example the original portion you want to use includes lyrics and vocals, and you have your artist rerecord the original song, then you are not implicating the physical Master from the original song. Therefore, if you need to obtain permission to license it or release it, you would generally only need permission from the entity that controls the underlying composition, lyrics and melody, which is often the music publisher. By rerecording the new vocals, you don’t rely on the original master, which is the physical component of the original song. And since you are no longer using the original master, you generally will not need permission from the entity that controls it.
Often, producers do not clear their samples fully, especially when they incorporate the original Master file into their new song. This is often problematic and can result in costly litigation down the road. Do not make the mistake of only obtaining permission from one entity if you will ultimately need permission from both.
If you are trying to secure a synchronization license (placement of your song in film/commercial/tv/documentary), the entity you contract with for use of your song will need to make sure you have cleared the chain of title. Thus, they have very strong Indemnification Clauses in their contracts. By securing placements for your song you are representing that you have the authority to do so. If you secure a placement without proper clearance, the entity that you contracted with (let’s say Netflix), will trigger their indemnification clause in your agreement and you will have to step in between them and the original copyright owners to defend them against any future claims of copyright infringement as a result of the placement.
If you use the cut and paste method and you did not clear permission to do so from both the record label and the publisher, then you may find yourself having to defend Netflix against a record label’s copyright infringement claim.
The golden rule: you can only contract out when you own, or what you have obtain full permission for.
An experienced copyright attorney can help guide you on the types of permissions you will need if you choose to use samples in your songs.
Peter Jay Speroni is counsel with the Parlatore Law Group and practices in the fields of copyrights, copyright infringement litigation, and trademarks. Mr. Speroni brings over fifteen years of music industry and entertainment experience to the firm including artist development, music publishing, media promotions and music consulting. He focuses on intellectual property licensing, including, complex music publishing, production, film and soundtracks, record label and artist management contracts. His passion and creativity help him to provide his clients with valuable and robust strategies, whatever their entertainment-based business needs.
He can be reached at firstname.lastname@example.org or 646-829-9348.
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