Digital Sampling

One major issue that artists have to face is that of sampling and whether samples need to be cleared. For those not in the know, sampling is defined as ”taking a portion, or sample, of one sound recording and reusing it as an instrument or element of a new recording.” (cite 1) There is a common misconception that if an artist uses a sample under a certain number of bars or under a certain time limit that such use is okay. That, however, is not the case.

The law on the issue became settled in 1991 when rapper Biz Markie was sued for his use of portions of ”Alone Again (Naturally)” by Gilbert O’Sullivan on his album I Need a Haircut. In Grand Upright Music, Ltd v. Warner Bros. Records, Inc. 780 F.Supp. 182 (S.D.N.Y. 1991), Judge Kevin Thomas Duffy ruled that ”the defendants in this action for copyright infringement would have this court believe that stealing is rampant in the music business and, for that reason, their conduct here should be excused. The conduct of the defendants herein, however…the copyright laws of this country.” The artist knew he had to clear the samples, and even against the advice of his counsel they chose to use the samples. This was a clear violation of the law.

As the law stands now, copyright protects musical recordings in two different ways. First, the composition is protected, including both the lyrics and the music notation as it is written (17 U.S.C. 102(a)(2) affords protection for ”musical works, including any accompanying words,” which are fixed in some tangible medium of expression). Second, the sound recording itself (a.k.a. the sound as it is affixed in a tangible form, like a compact disc or in a digital file) is protected by 17 U.S.C. 101, which affords protections for work that results from ”the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work.” Unauthorized sampling impacts each copyright.

In short, artists and producers should clear any samples they use. And if they choose not to, they need to make sure that any record labels or other entities they work with need to be aware that the sample the artist/producer used is not cleared. Otherwise, it could come back and bite the artist or producer in the ass.

1. http://en.wikipedia.org/wiki/Sampling_%28music%29

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This article is intended for informational purposes only and is not offered as legal advice or legal counsel in any way. For questions regarding this article please contact: email@sakucollins.com.