WingsOfAnAngel
Banned
ill o.g.
Battle Points: 3
Published: February 2003
IDJ magazine issue 33
Sampling is recognised as a key part of creating dance music, but it’s also a legal minefield. iDJ ventures past the barbed wire to find out how sample clearance works…
Just as the invention of the electric guitar changed the course of rock music, so the the invention of the sampler helped define today’s dance music. The idea that you could create a piece of music using snippets of other people’s records and manipulating them opened up a world of possibilities for bedroom producers on a limited budget. Being able to plunder the treasures of the past suited the ever-changing world of dance culture, where you’re only ever as good as your last record, and sampling soon became the cornerstone of house music production.
Fast forward to 2003 and this technique is as important as ever – even rock bands have started getting in on the act – but the difference is that a whole industry has built up around the identifying, clearing and royalty distribution of samples. Every major record label and music publishing company now employs a dedicated sampling specialist.
The music industry has always been fraught with legal difficulties at the best of times, and sample clearance is no exception. It is, however, a necessity of modern dance music life – so just how do the mechanics of it work? What happens if you sample a track – or someone samples yours – and how do you go about getting it cleared? What are the financial implications, particularly if the record is a hit?
To get some answers, iDJ spoke to music industry professionals Steve Sasse and Dan Bushell, A&R Manager and Copyright Supervisor respectively with Sony Music Publishing, and Tim Medcraft, UK Copyright Manager and Dance A&R with music publishers Bucks Music Group. Sony need no introduction, of course, while Bucks Music is one of world’s oldest independent publishers: their current clients include Roni Size, DJ Hype, Medicine8, Grant Nelson, Matthew Herbert and many more.
Let’s start with Tim and find out exactly what his job entails. “I try to make sure all the money comes through,” he explains, “from record sales and publishing through to performing rights, as well as ensuring all samples are cleared. As music publishers we look after the people who write the music – record labels look after the recording side of things. Whenever a piece of music is recorded involving samples, three rights have to be cleared: the recording rights with the record label, the publishing rights with the music publishers and the moral rights with the original artist.”
Right, so you’ve made a killer dance tune on your PC and you want to offer it to record labels, but it contains a drum break from a ’70s funk record – what happens next?
“The first thing you need to do is find out who publishes the work you’re sampling,” says Steve. “You will then need to approach the publisher or publishers depending on the number of writers of the work you’re sampling. What we suggest to our artists is that they should provide a copy of their work, the original track they sampled and the actual sample itself in isolation on a CD.”
“You would then send all this to someone like Dan who would have a look at it and then take it to the writer. We would also consider within the company what we would consider to be a fair publishing split.”
It also depends on the way the sample is used. “If you sample a whole chunk of music,” explains Dan, “you have to clear the master rights with the label who actually own the record itself and the publishing rights. If, however, you sample the music onto a guitar rather than the original piano, for example, you may only have to clear the publishing rights because you’re not sampling the actual recording.”
“A record label will normally say the artist is responsible for clearing the sample themselves,” says Tim. “You can find out who owns the rights to the original recording through MCPS (Mechanical Copyright Protection Society), PRS (Performing Rights Society), CatCo or similar databases, and contact them to get clearance. You will also need to contact the publishers of the original work to get their clearance.”
“If you go through the publishers they should be able to tell you who owns the rights and help sort the moral rights out at the same time. You need to make sure both sides are sorted out – there are companies out there who will do that for you and charge a fee.”
Basically, if you use a sample the creator of the original piece of music is entitled to a share of any royalties – they did write it, after all. The good news is that if you approach the artist in a straightforward manner, chances are you’ll able to reach a deal. We try to be fair and reasonable when clearing samples,” says Steve, “and replicate what we assume would go on in a court of law. We try to consider everything on a case by case basis.”
“Even if you think no-one knows the original track, because it’s really obscure,” cautions Tim, “there’ll be someone out there who does. There are people in the USA who go through new house records selling only 3,000 copies just to identify sampled breaks. They will then go and contact the original artist to see if they want to do anything about it.”
Of course, issues of originality and stealing ideas have been around since human beings first started to play music, so this problem is not exclusive to dance music and sampling. There are, after all, only a finite number of musical notes and drum patterns. But compared to ten years ago, artists and record labels are a lot more clued-up about the issues involved. In essence, an artist has the right to refuse to allow their work to be sampled.
“All writers have the moral right to say yes or no as to whether a sample from their work is used by someone else,” explains Dan. So what kind of time scale are you looking at in clearing a sample? “There are no fixed rules,” says Tim. “You may have to trace the original composers, which is often not an easy task, and they may even turn out to be dead. Even if you clear a sample with UK publishers you may also find that you have to clear it with the USA publishers, for example. You may even find that you have to release different versions of a record in different territories.”
Getting away with it
In reality sampling goes on all the time, so are there any unwritten rules within the industry to help make things run smoothly? Can you, for instance, ‘get away’ with very short samples, or with samples used on very limited-run pressings?
“Strictly speaking, it doesn’t matter how long or short a sample is,” explains Tim, “but if it’s felt to be of substantial use in the track you’re liable. You are in effect taking someone else’s property, so you have to think how you would feel if it happened to you. If you release a track and don’t clear it, you can ultimately be taken to court.”
“It’s the substantiality of the sample that’s the key,” agrees Dan, “not the duration."
"There is also no time limit on when you can sue someone for copyright infringement,” says Tim. “In the end it comes down to whether the original artist is annoyed by its use or not. Some artists are fine and take it as flattery.”
“Drums are a grey area,” adds Dan, “because 99 per cent of drum patterns aren’t original to the song they’re used in. You tend to find that you can’t ask for publishing rights just for a drum pattern, but there are exceptions to the rule and each case gets considered on an individual basis.” If you sample other people’s music it ultimately affects how much money you make off a record, especially if you use one or more samples. “You can end up in a position if you use two samples off different owners,” explains Tim, “where you could end up losing more than 100 per cent of the royalties. You could actually end up owing money, although most times people try and sort things out amicably.”
“What I always say,” says Steve, “is that if you’re using someone else’s music you have to be prepared to give up 100 per cent of the royalties. Obviously we hope that everyone deals with the split in a fair and logical fashion, but you have used someone else’s work without their permission, so the ball’s in their court.” The way royalties are allocated when a sample is used varies. You can buy the rights to use a sample for a set fee and then all the royalties are yours, or you can share a percentage with the artist you sampled from.
Samples of samples can also be a problem. “If you sample a hip hop track, for example,” says Tim, “that itself sampled something else but you don’t clear it, not only are you infringing the copyright of the hip hop track but also of the original artist. Things can get very complicated, so basically don’t do it.” Sample disputes very rarely go to court, partly because the industry is scared of a precedent being set that will alter everything. Instead, a set of workable but imperfect rules have been developed to deal with the issue. A whole sub-industry of sample clearing specialists, lawyers and musicologists has sprung up – but is this a barrier to creativity?
“Good sampling is fine,” argues Tim, “but blatantly ripping someone off is not. If sampling is done well, it can be a very creative process. Take The Avalanches, for example. Their album is brilliant but they dealt with the sampling issues as they were going along and found there was no problem because the artists concerned could see where they were coming from. Music isn’t free – and why should it be? Why shouldn’t musicians make a living out of something they’re good at? But people will still try it on and get caught out; every now and again someone will get away with it.”
“I think the music industry has recognised sampling as an important part of music-making,” says Dan, who receives around one sample request (either way) a day at Sony. “The way people have used samples has also become a lot more professional but I still feel sampling as an artform doesn’t get as much respect as people who actually sit down and create their own music, even if a lot of thought and imagination has gone into the sampling.
It’s not hard to see why sample clearance can take such a long time. As you can see it’s a very tricky business, so don’t say we didn’t warn you! As for bootlegs, that’s a whole other can of worms...
IDJ magazine issue 33
Sampling is recognised as a key part of creating dance music, but it’s also a legal minefield. iDJ ventures past the barbed wire to find out how sample clearance works…
Just as the invention of the electric guitar changed the course of rock music, so the the invention of the sampler helped define today’s dance music. The idea that you could create a piece of music using snippets of other people’s records and manipulating them opened up a world of possibilities for bedroom producers on a limited budget. Being able to plunder the treasures of the past suited the ever-changing world of dance culture, where you’re only ever as good as your last record, and sampling soon became the cornerstone of house music production.
Fast forward to 2003 and this technique is as important as ever – even rock bands have started getting in on the act – but the difference is that a whole industry has built up around the identifying, clearing and royalty distribution of samples. Every major record label and music publishing company now employs a dedicated sampling specialist.
The music industry has always been fraught with legal difficulties at the best of times, and sample clearance is no exception. It is, however, a necessity of modern dance music life – so just how do the mechanics of it work? What happens if you sample a track – or someone samples yours – and how do you go about getting it cleared? What are the financial implications, particularly if the record is a hit?
To get some answers, iDJ spoke to music industry professionals Steve Sasse and Dan Bushell, A&R Manager and Copyright Supervisor respectively with Sony Music Publishing, and Tim Medcraft, UK Copyright Manager and Dance A&R with music publishers Bucks Music Group. Sony need no introduction, of course, while Bucks Music is one of world’s oldest independent publishers: their current clients include Roni Size, DJ Hype, Medicine8, Grant Nelson, Matthew Herbert and many more.
Let’s start with Tim and find out exactly what his job entails. “I try to make sure all the money comes through,” he explains, “from record sales and publishing through to performing rights, as well as ensuring all samples are cleared. As music publishers we look after the people who write the music – record labels look after the recording side of things. Whenever a piece of music is recorded involving samples, three rights have to be cleared: the recording rights with the record label, the publishing rights with the music publishers and the moral rights with the original artist.”
Right, so you’ve made a killer dance tune on your PC and you want to offer it to record labels, but it contains a drum break from a ’70s funk record – what happens next?
“The first thing you need to do is find out who publishes the work you’re sampling,” says Steve. “You will then need to approach the publisher or publishers depending on the number of writers of the work you’re sampling. What we suggest to our artists is that they should provide a copy of their work, the original track they sampled and the actual sample itself in isolation on a CD.”
“You would then send all this to someone like Dan who would have a look at it and then take it to the writer. We would also consider within the company what we would consider to be a fair publishing split.”
It also depends on the way the sample is used. “If you sample a whole chunk of music,” explains Dan, “you have to clear the master rights with the label who actually own the record itself and the publishing rights. If, however, you sample the music onto a guitar rather than the original piano, for example, you may only have to clear the publishing rights because you’re not sampling the actual recording.”
“A record label will normally say the artist is responsible for clearing the sample themselves,” says Tim. “You can find out who owns the rights to the original recording through MCPS (Mechanical Copyright Protection Society), PRS (Performing Rights Society), CatCo or similar databases, and contact them to get clearance. You will also need to contact the publishers of the original work to get their clearance.”
“If you go through the publishers they should be able to tell you who owns the rights and help sort the moral rights out at the same time. You need to make sure both sides are sorted out – there are companies out there who will do that for you and charge a fee.”
Basically, if you use a sample the creator of the original piece of music is entitled to a share of any royalties – they did write it, after all. The good news is that if you approach the artist in a straightforward manner, chances are you’ll able to reach a deal. We try to be fair and reasonable when clearing samples,” says Steve, “and replicate what we assume would go on in a court of law. We try to consider everything on a case by case basis.”
“Even if you think no-one knows the original track, because it’s really obscure,” cautions Tim, “there’ll be someone out there who does. There are people in the USA who go through new house records selling only 3,000 copies just to identify sampled breaks. They will then go and contact the original artist to see if they want to do anything about it.”
Of course, issues of originality and stealing ideas have been around since human beings first started to play music, so this problem is not exclusive to dance music and sampling. There are, after all, only a finite number of musical notes and drum patterns. But compared to ten years ago, artists and record labels are a lot more clued-up about the issues involved. In essence, an artist has the right to refuse to allow their work to be sampled.
“All writers have the moral right to say yes or no as to whether a sample from their work is used by someone else,” explains Dan. So what kind of time scale are you looking at in clearing a sample? “There are no fixed rules,” says Tim. “You may have to trace the original composers, which is often not an easy task, and they may even turn out to be dead. Even if you clear a sample with UK publishers you may also find that you have to clear it with the USA publishers, for example. You may even find that you have to release different versions of a record in different territories.”
Getting away with it
In reality sampling goes on all the time, so are there any unwritten rules within the industry to help make things run smoothly? Can you, for instance, ‘get away’ with very short samples, or with samples used on very limited-run pressings?
“Strictly speaking, it doesn’t matter how long or short a sample is,” explains Tim, “but if it’s felt to be of substantial use in the track you’re liable. You are in effect taking someone else’s property, so you have to think how you would feel if it happened to you. If you release a track and don’t clear it, you can ultimately be taken to court.”
“It’s the substantiality of the sample that’s the key,” agrees Dan, “not the duration."
"There is also no time limit on when you can sue someone for copyright infringement,” says Tim. “In the end it comes down to whether the original artist is annoyed by its use or not. Some artists are fine and take it as flattery.”
“Drums are a grey area,” adds Dan, “because 99 per cent of drum patterns aren’t original to the song they’re used in. You tend to find that you can’t ask for publishing rights just for a drum pattern, but there are exceptions to the rule and each case gets considered on an individual basis.” If you sample other people’s music it ultimately affects how much money you make off a record, especially if you use one or more samples. “You can end up in a position if you use two samples off different owners,” explains Tim, “where you could end up losing more than 100 per cent of the royalties. You could actually end up owing money, although most times people try and sort things out amicably.”
“What I always say,” says Steve, “is that if you’re using someone else’s music you have to be prepared to give up 100 per cent of the royalties. Obviously we hope that everyone deals with the split in a fair and logical fashion, but you have used someone else’s work without their permission, so the ball’s in their court.” The way royalties are allocated when a sample is used varies. You can buy the rights to use a sample for a set fee and then all the royalties are yours, or you can share a percentage with the artist you sampled from.
Samples of samples can also be a problem. “If you sample a hip hop track, for example,” says Tim, “that itself sampled something else but you don’t clear it, not only are you infringing the copyright of the hip hop track but also of the original artist. Things can get very complicated, so basically don’t do it.” Sample disputes very rarely go to court, partly because the industry is scared of a precedent being set that will alter everything. Instead, a set of workable but imperfect rules have been developed to deal with the issue. A whole sub-industry of sample clearing specialists, lawyers and musicologists has sprung up – but is this a barrier to creativity?
“Good sampling is fine,” argues Tim, “but blatantly ripping someone off is not. If sampling is done well, it can be a very creative process. Take The Avalanches, for example. Their album is brilliant but they dealt with the sampling issues as they were going along and found there was no problem because the artists concerned could see where they were coming from. Music isn’t free – and why should it be? Why shouldn’t musicians make a living out of something they’re good at? But people will still try it on and get caught out; every now and again someone will get away with it.”
“I think the music industry has recognised sampling as an important part of music-making,” says Dan, who receives around one sample request (either way) a day at Sony. “The way people have used samples has also become a lot more professional but I still feel sampling as an artform doesn’t get as much respect as people who actually sit down and create their own music, even if a lot of thought and imagination has gone into the sampling.
It’s not hard to see why sample clearance can take such a long time. As you can see it’s a very tricky business, so don’t say we didn’t warn you! As for bootlegs, that’s a whole other can of worms...
