WingsOfAnAngel
Banned
ill o.g.
Battle Points: 3
if you're just playing around with tunes at home, or even burning some cds of your own stuff (that includes samples) for friends, don't bother about clearing it. as soon as it looks like there's going to be significant public profile and more importantly money generated, ie if you're going to release something with samples on a major label or license a track including samples to a tv program or ad - you should definitely try get it cleared or you may get bust for copyright infringement and lose everything.
although it isn't law as such, there are enough court cases around the world won by the sampler/defendant to show that if you have used a sample less than 7 beats in length and have changed it more than 30% (ie by pitching it, chopping it up, effecting it heavily, burying it in the mix, placing it differently to the original in your own track, or any combination), then the owner of the original recording can't claim royalties for your usage.
in general, when deciding what sample to use, stay away from everything very famous, lead vocals of any kind, and the main licks and chorus parts of well known tunes. definite nonos are anything from disney, def jam and the beatles. conversely, for an independent SA release, if you're taking an obscure bass lick from an even more obscure 50s swing record,and using it as part of your mix, not as a main sound, then there's an extremely good case for not bothering with the clearances. after all, even if you do get bust, there's not much in it for the copyright owner. then again, fatboy slim has to clear absolutely everything!
how to clear a sample?
firstly, if you're signed to a label, they should do this for you.
check your contract to see whether the clearing of samples is your responsibility or theirs. if it's theirs, you need to supply all relevant info on what the sample is and how you've used it (see below). they may have a clause saying that any fees paid by them for clearing of samples counts as an advance and will be deducted from your royalties.... quite standard in any case where you're being given an advance to spend on studio costs.
if the clearance is your responsibility:
check out the track details on the record cover of the original track you're sampling from.
you need to get 2 different clearances:
1. master recording copyright
ie the copyright in the recording, owned by the label who released the record (who has made a deal with the artists / performers to use their performances on his recordings)
2. publishing / composer / mechanical copyright
ie the copyright in the musical works (composition and lyrics) which were performed and then recorded to create the master recording, owned by the Publisher.
you then need to contact the label and ask for clearance.
[usually, the label secured the Publishing rights necessary to exploit his recording when he first released it, so he should be able to clear the publishing rights for you as well as master recording rights. if the label is not able to grant the publishing rights, he will inform you and you will have to clear the composition with the publisher as well.]
write to them, explaining exactly what you have used, and what your intended usage of the track is.
eg, i have used a sample of a recording in which you own the copyright in a track of mine entitled xxxxxx. the sample used was taken from the recording xxxxx by xxxxx from the record xxxxx. the sample is a 2 bar bassline from the chorus and it features in the track as a featured part of the track.
i wish to release my track xxxxxx on an artist album xxxxxxx, and wish to publish the composition including your sample with xxxxxx publisher. i can supply copies of the sample used and my track should you require. (they will, usually)
album details:
name of album:
no of tracks:
date of release:
releasing label:
distributor:
artist royalty rate: ____%, prorated equally between no of tracks on the album
estimated ppd (wholesale price):
territories released (usually SA + export or the world):
estimated sales:
in my experience, unless it looks like there's significant revenue to be generated from this info / or the release is being released and/or distributed by a major label, in my experience your request will be ignored or denied. at this point, you can drop the sample, or use the track anyway, keeping account of any money you make from the track in the event they do come after you.
if the label does decide to approve the sample clearance, they will either charge you a set fee, a percentage of the royalties you earn from the track, or a combination of the above. depending on the label's sample policy and your usage, you might even get it for free, but have to include a credit on the album details. i have cleared / attempted to clear a couple of samples, and received responses on requests for clearance for inclusion on african dope cd releases ranging from outright refusal (disney) to US$10 000 for a horn stab (better not to name the label) to 6% of royalties from the track (Gallo).
that's about it i think. of course, all of this is written from the perspective of a small indie label trying to clear more samples than what people are trying to clear from us. someone whose licks are being ripped off around the world on a daily basis might give a very different slant on guidelines to using and clearing samples....
as mentioned before, clearing a sample involves clearing both master recording and publishing rights. from my efforts in the last week, it has become clear that it's
generally easier to get clearance by approaching the publisher first. if he agrees (and it appears as if publishers are generally quite amenable to usage of their compositions for a percentage of the take), it becomes a lot easier to get clearance from the owner of the recording, as opposed to dealing with it the other way round, ie approaching the label first.
although it isn't law as such, there are enough court cases around the world won by the sampler/defendant to show that if you have used a sample less than 7 beats in length and have changed it more than 30% (ie by pitching it, chopping it up, effecting it heavily, burying it in the mix, placing it differently to the original in your own track, or any combination), then the owner of the original recording can't claim royalties for your usage.
in general, when deciding what sample to use, stay away from everything very famous, lead vocals of any kind, and the main licks and chorus parts of well known tunes. definite nonos are anything from disney, def jam and the beatles. conversely, for an independent SA release, if you're taking an obscure bass lick from an even more obscure 50s swing record,and using it as part of your mix, not as a main sound, then there's an extremely good case for not bothering with the clearances. after all, even if you do get bust, there's not much in it for the copyright owner. then again, fatboy slim has to clear absolutely everything!
how to clear a sample?
firstly, if you're signed to a label, they should do this for you.
check your contract to see whether the clearing of samples is your responsibility or theirs. if it's theirs, you need to supply all relevant info on what the sample is and how you've used it (see below). they may have a clause saying that any fees paid by them for clearing of samples counts as an advance and will be deducted from your royalties.... quite standard in any case where you're being given an advance to spend on studio costs.
if the clearance is your responsibility:
check out the track details on the record cover of the original track you're sampling from.
you need to get 2 different clearances:
1. master recording copyright
ie the copyright in the recording, owned by the label who released the record (who has made a deal with the artists / performers to use their performances on his recordings)
2. publishing / composer / mechanical copyright
ie the copyright in the musical works (composition and lyrics) which were performed and then recorded to create the master recording, owned by the Publisher.
you then need to contact the label and ask for clearance.
[usually, the label secured the Publishing rights necessary to exploit his recording when he first released it, so he should be able to clear the publishing rights for you as well as master recording rights. if the label is not able to grant the publishing rights, he will inform you and you will have to clear the composition with the publisher as well.]
write to them, explaining exactly what you have used, and what your intended usage of the track is.
eg, i have used a sample of a recording in which you own the copyright in a track of mine entitled xxxxxx. the sample used was taken from the recording xxxxx by xxxxx from the record xxxxx. the sample is a 2 bar bassline from the chorus and it features in the track as a featured part of the track.
i wish to release my track xxxxxx on an artist album xxxxxxx, and wish to publish the composition including your sample with xxxxxx publisher. i can supply copies of the sample used and my track should you require. (they will, usually)
album details:
name of album:
no of tracks:
date of release:
releasing label:
distributor:
artist royalty rate: ____%, prorated equally between no of tracks on the album
estimated ppd (wholesale price):
territories released (usually SA + export or the world):
estimated sales:
in my experience, unless it looks like there's significant revenue to be generated from this info / or the release is being released and/or distributed by a major label, in my experience your request will be ignored or denied. at this point, you can drop the sample, or use the track anyway, keeping account of any money you make from the track in the event they do come after you.
if the label does decide to approve the sample clearance, they will either charge you a set fee, a percentage of the royalties you earn from the track, or a combination of the above. depending on the label's sample policy and your usage, you might even get it for free, but have to include a credit on the album details. i have cleared / attempted to clear a couple of samples, and received responses on requests for clearance for inclusion on african dope cd releases ranging from outright refusal (disney) to US$10 000 for a horn stab (better not to name the label) to 6% of royalties from the track (Gallo).
that's about it i think. of course, all of this is written from the perspective of a small indie label trying to clear more samples than what people are trying to clear from us. someone whose licks are being ripped off around the world on a daily basis might give a very different slant on guidelines to using and clearing samples....
as mentioned before, clearing a sample involves clearing both master recording and publishing rights. from my efforts in the last week, it has become clear that it's
generally easier to get clearance by approaching the publisher first. if he agrees (and it appears as if publishers are generally quite amenable to usage of their compositions for a percentage of the take), it becomes a lot easier to get clearance from the owner of the recording, as opposed to dealing with it the other way round, ie approaching the label first.
