About copyright and sampling

About COPYRIGHT and Sample Libraries

What you should know about sampling copyright, and how to avoid trouble.

Zero-G samples are safe to use in your music, either in their present form, or modified by you. The original purchaser of a Zero-G product is licensed to use the included sound samples, either privately or within their commercially released music compositions, and without the need to modify the samples in any way.

Not all sample CDs or downloadable sample packs on the market can make such a guarantee. In general, when in doubt, or for example if your record company asks for exact clarification concerning samples that you took from any commercially available sample library, check the full license in writing from the sound developer who produced that sample library product. If it is not printed on the packaging of the CD itself, or included in a file within the downloadable product, then your distributor should be able to obtain it for you, and if required, may put you in touch directly with the product's manufacturer.

Remember - if the sounds are truly original and safe to use in their present form, even in your commercial music releases, then the license should always state this clearly.

This is always true of Zero-G sample library products.



What you should know about sampling copyright:


The Copyright, Designs and Patents Act 1988 states that copyright subsists in original literary, dramatic, artistic, musical works, sound recordings and films. The act confers upon copyright owners the five restricted, exclusive rights to control how, when or if their copyright works may be used.

The restricted acts are as follows:

• to copy the work
• 
to issue copies of the work to the public
• 
to perform, show or play the work in public

• to broadcast the work or include it in a cable programming service
• 
to make an adaptation of the work or to do any of the above in relation to an adaptation

 

MCPS (the Mechanical Copyright Protection Society in the UK) guidelines suggest there are three 'rights' which must be taken into account when sampling:

1. The copyright in the original musical work.

Permission must be given by the copyright owners of the musical works to be sampled (usually the music publisher). It is best to contact them directly but if details of the sample use are declared on an MCPS 'Application For Licence' form, then MCPS will contact the copyright owners concerned to help establish the initial contact.

2. The copyright in the sound recording or the 'Phonographic Right'.

Permission must be given by the copyright owners of the sound recordings to be sampled (usually the record company).

3. The moral right.

These are designed to protect an author's reputation. The author now has certain statutory rights including the right not to have his or her work subjected to derogatory treatment. This moral right is particularly important with regard to sampling as it gives the original author the right to decide if a copyright may be used. A further moral right is that of paternity, the right to be credited as the author/composer of a work.



Sampling From Existing Recordings


The use of snippets from other peoples' recordings is not a legitimate way of sourcing new sounds for the serious music producer - on the contrary, it is theft. It is true that in the late 80's and early 90's this practice greatly influenced the direction of dance music, and is still used in recording today, but it has always been a legal minefield. A typical example was the dance-based artist 'Shut Up And Dance' who apparently faced legal action from the recording industry watchdog the Mechanical Copyright Protection Society, backed by eight major publishing houses, over allegedly unauthorised use of samples of artists including Prince, Suzanne Vega and Terence Trent D'Arby.

Of course sampling is certainly not a recent phenomenon; it's been around in different forms for a long time. In the 60's the Beatles created a recording called 'Revolution Number 9' on their "White Album" using many film, news report and music extracts. In the early '80s Grand Master Flash and the Furious Five began the trend of including excerpts of other records in their own by "scratch mixing" them in. At about the same time, the first digital sampler appeared - the Fairlight CMI (Computer Musical Instrument). It initially cost £20,000 and, ironically, the manufacturers added the sampling hardware at the last minute because they didn't see a use for it at the time. As we moved through the 90's, with professional machines becoming ever more affordable, sampling has mushroomed. Its commonplace use in many styles of music has raised many ethical and legal problems.

When you create a piece of music, you automatically have the copyright - literally, the right to copy it - but only if you write it down or record it. It doesn't matter if someone else records it - you are the author of the music, so you still own the copyright. Of course, it is vital that you can prove that you created it first. There are two things you can do that will satisfy any court of law: either post a copy of the work (recording or manuscript) to yourself by recorded delivery, so the postmark can act as proof of the date (but make sure you don't open the package!); or leave a copy of the work with your bank and get an official receipt stating the date of the deposit.

Copyright is legally regarded as a possession, so you can sell it or give it away. If you're lucky enough to get a publishing deal, you will undoubtedly assign your copyright to the publisher, who, if he's any good, will do whatever he can to get you a record deal and make you a star. Many publishers appoint the Mechanical Copyright Protection Society or the equivalent organisation in their country, to issue licences to a record company to make further "mechanical" (physical) copies of your work and collect the royalties - assuming somebody buys it, of course.

When a recording is made, a new copyright is created - that governing the mechanical recording itself, owned by the producer. So now there is a copyright over your material, and another over the recording of your material, but it might seem as though neither of them belongs to you. However, just because you've signed a dotted line on a contract, this doesn't mean you've lost all rights over your work. You still remain "first owner" and can exercise your "moral rights."

These rights are recognised in the Copyright, Designs and Patents Act 1988 (UK), which brings copyright law up to date, especially in areas like audio and video recording. An author's "moral rights" can be asserted in various circumstances. If you don't think your name is displayed on a sound recording prominently enough to make you easily identifiable as the author (or part-author), you can assert the right to be identified, also known as the "paternity" right. This means that if any recording uses a sample taken from your work, you can insist that you are credited as the source of the sample, as Kate Bush is credited on the Utah Saints' single 'Something Good'.

If your work is altered or distorted in a way that you find offensive to your original intention, you can use another moral right, your "integrity" right. It doesn't even matter if you give someone permission to copy your work but then take a dislike to what is being done to it. Similarly, in an ideal world your publisher will work with you and follow your every wish as to the promotion of your work, but in reality it doesn't always work that way. In both cases, you can still assert your moral rights, as long as you complain straight away. Only writers and authors have enforceable moral rights; producers and publishers do not. This means that even if you, your publisher or the MCPS give someone permission to use a sample from your work, you can still take action if the sample is used in a way you object to.

The "Raving, I'm Raving" controversy recently highlighted this part of the Act. Marc Cohn didn't like what Shut Up and Dance did to the melody of 'Walking in Memphis', so he exercised his moral rights and forced the record pressing to be restricted to the 35,000 already done at the time. Shut Up and Dance also agreed to give all the profits to charity, but money wasn't the issue. The moral rights of the originator were.

In the first case of this kind that went to court, George Michael managed to get an injunction against a record company that wanted to release the 'Bad Boys Mega Mix': the court decided the recording was a distortion of Michael's original work. Be warned though that the moral rights issue has many practical and legal difficulties.

So, if you want to sample a record, just how much can you get away with? This is a grey area where the law is concerned, because of two words: "substantial part." An infringement occurs if a "substantial part" of a work has been copied or sampled. The Copyright Act does not state categorically how much this is, but court cases have shown that it's the QUALITY of the sample that counts as much as quantity. A VERY short sample can still constitute a substantial part, if it is important and distinctive enough. Jane Peterer, who works for a New York company handling George Clinton's music, reckons that a sample of Clinton's work automatically steals the atmosphere and power of the style which brought him success, so the length of the sample doesn't matter. Peterer has been involved in many settlements with record companies and publishers.

When a composer dies, the copyright remains with his estate for another 70 years. Carl Orff, German composer of Carmina Burana, died in 1982, so copyright remains with his estate until 2052. Two Belgian bands, Fortuna and Apotheosis, released dance versions of the rousing music which reached numbers 1 and 3 in the Dutch charts. But Orff's estate claimed the recordings were an infringement of the composer's moral rights; they won their case and the singles were withdrawn from sale.

 

Avoid Trouble


If you sample any copyright work, you risk upsetting somebody. You may think you've lifted a sample that is not a "substantial part" of the original work, but this can ALWAYS be contested. You may think your source is suitably obscure, but there's always going to be SOMEONE who recognises it. Even if you distort a sample so you think it's completely different from the original, chances are that a discerning artist will spot what you've done - and might assert his moral right of "integrity" and sue you precisely because you've distorted it from the original intentions. And even if your case doesn't go to court, you could still be facing a large out-of-court settlement.

There are three safe options:

First, you can purchase original cleared sample collections from reputable and long-established Sample CD developers such as Zero-G.

Second safe option: create your own samples!!

The third safe option is to go through the proper channels and clear your samples. If you're going to make a record and you know that your work contains some conspicuous or suspicious samples, get in touch with the MCPS (or equivalent organisation in your country) to see whether you need a licence and how much it will cost. If the publisher of the sampled work involved is not affiliated to the MCPS, you have to get in touch with that publisher yourself and get clearance. At this stage, check with the record company that made the original recording to see if you need special clearance from it - this is especially important where music is out of copyright. Payment for use of a sample may be a lump sum or a royalty on each recording sold. It's worth remembering about moral rights and what can happen if you later distort someone's material. A standard rate of payment for samples does not seem likely. There is no objective way of evaluating the "quality" of a sample even if quantity could be rated. For this reason, it's likely that individual cases would have to be assessed on their own merits. What's more, the publishers are not likely to feel that they'll benefit from a set clearance fee when they currently occupy such an influential position. Prominent producer Pete Waterman hit the nail on the head in an issue of 'Music Week' magazine, where he said that publishers "sense they are in the driving seat. They are just going ever and ever higher, asking for 50% of songs that might just contain a small part of their work."

 

Sampling from Television:


The 1988 Copyright Act states that if someone's words are recorded, that person gains an automatic copyright in the recording. This means that if you sample some speech from the TV, you infringe two copyrights: that of the speaker and that of the TV company which made the program. If you sample music featured in a film broadcast on TV, there are five copyrights involved: one in the script of the film; one in the music on the soundtrack; another in the recording of the music; yet another in the film itself; and finally one in the TV broadcast. Of course, if you're caught and brought to book, the "substantial part" criterion always has to be proved, but think of all those people you might have to answer to...

Whatever happens in the future, sampling is here to stay. It can be used creatively as well as destructively. And though it can be a controversial issue, a bit of common sense can save you a lot of trouble.