A Walk-Through: Sampling

I’ll be writing a periodic set of articles all designed to present the necessary information to make complex topics in the music business more easily understood—”walk-throughs,” if you will.  The first in the series is a walk through on sampling.

I chose this topic because it allows us to view an action—sampling—which requires an understanding of an array of music business elements.  As such, I’m able to introduce several important concepts at the same time.  Even if you yourself are an artist who does not sample, it’s important to understand the process because someone may desire to sample your music.

First, a definition.  Sampling is the act of inserting a portion of another work into your work. For instance, Vanilla Ice inserted the bass line from the David Bowie/Queen composition “Under Pressure” into his song “Ice, Ice, Baby.” As such, Vanilla Ice sampled David Bowie/Queen’s song.

Whenever you question whether something is allowable in the music business, you should always begin with examining the bundle of rights that are automatically granted to copyright holders upon the creation and fixation (writing down or recording) of an original work of authorship.  For a primer on this, please refer to this handy guide.

Ok, let’s take a look.

First things first, should you desire to insert the copyrighted work of another artist into your own work (i.e. sample their work), you immediately bump into that artist’s exclusive right to create derivative works.  This—the right to create derivatives—is one of the six rights conferred on copyright holders.  What this means is that only the copyright holder can do things like: make a translation of their song, create a screenplay of their song, and—most relevant here—create a new song that is in any way derived from the original composition.  So, inserting a portion of someone else’s work—however short that insertion might be—is deemed to be creating a new work derived from another work.  Only the copyright holder of the original work can do this without infringing upon another’s copyright.

What this means is that should you desire to sample someone else’s work in a song you have written, you must go to the copyright holder(s), and seek permission to do so.  Similarly, should someone desire to sample your work in one of their songs, they must come to you. Fair is fair, right?

In terms of what type of deal you must strike with this person (or, they with you), there is no compulsory rate.  In other words, unlike, for example, when you want to cover someone’s song, and can rely on the compulsory license statute, which establishes the rules (including what you must pay the copyright holder of the song you cover), no such statute exists with respect to derivative works; it’s a purely negotiated dynamic.  The person who controls the copyright you desire to sample in your work can grant you the right to create a derivative for free or for whatever fee the market will bear, or just say no, and, thus, keep you from sampling the work at all.

Of course, the same rules apply to you when someone wants to sample your work.  This is reasonable. Imagine someone wants to use your work in their work, but you feel their doing so would present your work (and, by extension, you) in a way that you’re not comfortable with—you wouldn’t want them to be able to just do it anyway.  Similarly, if you are the copyright holder of a very popular song, and someone who is less well-known wants to sample your work in their song (I’m looking at you P-Diddy), you might reasonably feel that this artist is reaping disproportionate benefit from your song; in other words, the popularity of “their” song is contingent upon the established popularity of your work.  In this case, you would want to be compensated in such a way so as to not feel that the artist sampling your work is free-riding, and being unjustly enriched.  By not having a compulsory rate, you are able to do this.

Before we move on to further details with respect to compensation, let’s pull back and examine what exactly is being sampled.  For every song there are two copyrights: the copyright in the composition itself (represented by the (c) symbol), and the copyright in the sound recording of the song—frequently referred to as the “master;” this is the recording/version of the song that is on a CD or download (it is represented by the (P) symbol).  While the songwriter or the songwriter’s publisher is typically the copyright owner of the composition (the (c)); the sound recording (the (P)) is typically owned/controlled by the label who releases the record/CD/download.  Of course, if the songwriter releases the work himself/herself he/she would be the owner of both the (c) and the (p).

Both the (c) holder and the (p) holder have the exclusive right to create derivative works, and so it’s not only the writer of the song (the (c) holder) that you must obtain permission to create derivatives from, but also the copyright holder of the sound recording/master (the (p) holder)—again, typically the label.

Either party can say no, and either party can negotiate whatever deal with you that they want.  Frequently, these deals are “Most Favored Nations” (MFN), meaning that whatever deal is struck with one party (the (c) holder, for example) must also be struck with the other party (the (p) holder).

The copyright holder to the composition (the (c) holder) is the dispositive party.  That is, if the (c) holder denies the usage, it’s game over.  If, on the other hand, the (c) holder agrees to the usage, but the copyright holder of the sound recording (the (p) holder—typically, the label) says “no,” the person desiring the sample can re-record the sample, and, thereby, bypass the (p) holder.

Obtaining permission from the rights holders to create a derivative work is the first step, but, again referring to the six rights the (c) holder(s) are conferred with, we see that there are other steps that must be taken.

Simply having the right to create a derivative, and, thus, include a sample of someone else’s work in your work, doesn’t do you much good if you can’t exploit (sell) it.  In order to sell you must have the right to do at least two other things that—unless a deal is struck with the copyright holder—only the copyright holder has the right to do: reproduce and distribute the work.

The rights to reproduce and distribute a work are, of course, essential to selling that work. Labels that desire to reproduce and distribute the copyrighted works of a songwriter on the label’s releases do so via a “mechanical license.”  Therefore, when a sample is inserted into a song, unless the copyright holder(s) of the sample waives their rights with respect to reproduction and distribution (and, why would they?) the copyright holder(s) of the sampled work must be paid for the reproduction and distribution of the work.

Typically, what occurs is that as part of the deal that “clears” the sample—i.e. outlines things like the right to create a derivative work—details concerning royalties associated with reproduction and distribution are also addressed.  These are negotiated, and — like the terms for the use of the sample—are determined by what the market will bear, but the normal scenario is that the person using the sample gives up some or all of the mechanical royalties to the writer of the original composition.  Note, that a “synchronization”—the use of a song combined with an image; such as in a movie or TV show—also triggers reproduction and distribution issues, and must be addressed in these deals. In short, if your work is sampled in a song, and that song is used in a movie or TV show, you should get paid when that movie is reproduced/distributed.

The last element to consider with respect to rights/income and samples is public performance. The exclusive right to public performance (both in the composition (the (c)) and the sound recording (the (p)) are exclusive to the writer and the master holder.  As such, when the writer and master holder’s works are publicly performed as part of the song that sampled them (that is, when a song that has a sample in it is played on the radio, streamed online, performed live in front of an audience, or, in any manner, publicly performed) performance royalties are owed.  In all cases, a public performance royalty is owed to the copyright holder of the composition (the (c)), and in the case of non-interactive digital streams (such as internet radio, Pandora, or satellite radio), a public performance royalty is due to the master holder and featured performer. The payments to the the songwriter are made via Performance Rights Organizations, such as ASCAP, BMI, or SESAC.  The payments to the master holder/featured performer are made via SoundExchange.

As you can see, the use of another’s work as part of a new work (a sample) triggers a vast array of rights issues.  While—from the point of view of someone who desires to sample someone else’s work—this may seem extreme, from the other viewpoint—that of someone sampling your work—it should give you assurance that you have both control (via the ability to exclusively control whether or not a derivative of your work can be created) and compensation (via your exclusive rights related to distribution, reproduction, and public performance).

For those who feel that having their work sampled is beneficial from a promotional standpoint, and want to facilitate/encourage the use of their works as samples, they can utilize a Creative Commons license that allows the copyright holder to opt out of certain elements of their copyright bundle. For example, they could allow the creation of derivative works, and/or reproduction/distribution with few (attribution, for example) or no conditions. I suggested in a prior article that perhaps another way forward is to create a compulsory license for samples under a certain length (similar to the compulsory license rules around covers).

Certainly, there can be benefits to having your work sampled, as there can be benefits to sampling the work of others—in terms of revenue and awareness—and songwriters/master holders need to understand them, and, if they choose, attempt to maximize their value.

My hope is that, via this article, both those who desire to sample, and those who have their work sampled see that there is a system in place (however effective/efficient it may or may not be), and that the system is rooted in the same copyright law that governs all elements of the music business. To that end, if you understand this article, you’ve gone a long way in understanding the music business generally.

Source: George Howard

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