Food For Thought : Copyrights
With the popularity of the Internet, many people are violating music copyright law and do not even know it. Music copyright law can be very tricky. There are multiple music copyrights that you must keep in mind – lyrics, composition and the recording of the music by an artist. Using someone’s music may involve you acquiring many different licenses such as mechanical, synchronization, performance and publishing licenses.
Music copyright law has separate copyrights for the vocal or instrumental recordings of a composition or performance and the copyright of the written lyrics and music. Standard music copyrighting practices usually entail that the writer of the song retains the rights to the right to the music composition which the studio that did the recording of the music holds the rights of the recording. Music copyright law can get very complicated. It can involve negotiations with the writers, producers, agents, heirs and more.
This may sound like something that would never come back to haunt you. After all, if you were caught, it would be a first time offense, right? Well, you should know that there have been first time offenders who have been fined up to $250,000 and up to five years in jail for violating music copyright law.
Educate yourself on music copyright law. No one wants to ruin their financial future and face jail time. Enjoy music, just do it the right way!
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The Law regarding Music Sampling
Sampling is the use of portions of prior recordings which are incorporated into a new composition. Sampling has become an integral part of many genres of music today. When you sample someone's song without permission, it is an instant copyright violation. It is the unauthorized use of copyrighted material owned by another. Sampling without permission violates two copyrights-the sound recording copyright (usually owned by the record company) and the copyright in the song itself (usually owned by the songwriter or the publishing company).
If you want to use a sample legally, you must obtain permission from the copyright owner. The copyright owner is usually a publishing company or record label. Remember that you must obtain permission from both the owner of the sound recording and the copyright owner of the underlying musical work. The fee for a license to use a sample can vary tremendously. The fee will depend on how much of the sample you intend to use (a quarter second is a minor use; five seconds, a major use), the music you intend to sample (a Madonna chorus will cost more than an obscure drum beat), and the intended use of the sample in your song (it is more costly to build your entire song around the sample than to give it only minor attention).
There are two different ways to pay for a license. First, you can pay a flat fee for the usage. A buy-out fee can range from $250 to $10,000 on a major label. Most fees fall between $1,000 and $2,000. The other way to pay for the license is a percentage of the mechanical royalty rate. The mechanical royalty rate is the amount a person pays to the copyright owner to make a mechanical reproduction (copy) of the song. A license which is a percentage of the mechanical royalty rate is generally between ½ ¢ and 3¢ per record pressed. Everything is negotiable and it is not unusual to get a license for free, if you ask.
If all of this sounds confusing, there's hope. There are businesses devoted entirely to securing and negotiating clearances for samples. These firms charge less than an entertainment attorney would charge and are generally more knowledgeable about the going rates for uses.
If you use samples without obtaining the proper clearance licenses, you have to be aware of the penalties. A copyright infringer is liable for "statutory damages" that generally run from $500 to $20,000 for a single act of copyright infringement. If the court determines there has been willful infringement, damages can run as high as $100,000. The copyright owner can also get a court to issue an injunction forcing you to cease violating the copyright owner's rights. The court can also force you to recall all your albums and destroy them.
There is also a rumor going around that you can use four notes of any song under the "fair use" doctrine. There is no "four note" rule in the copyright law. One note from a sound recording is a copyright violation. Saturday Night Live was sued for using the jingle, "I Love New York" which is only four notes. The test for infringement is whether the sample is "substantially similar" to the original.
Remember, a judge or jury is the one who determines this and these people may be much less receptive to your music than your fans. My point is you cannot rely on fair use as a defense.
Sampling can also have tremendous consequences if you have a record contract. Most record contracts have provisions called "Warranties", "Indemnifications" and "Representations". These provisions constitute a promise that you created all the music on your album and an agreement to reimburse the label if it is sued. These same provisions are included in all contracts throughout the entertainment distribution chain. The record company has them with the artist, the distributors with the record company, the record stores with the distributors, and so on. Well, all these warranties point back at the artist who is responsible to everyone else! Therefore, if you violate someone else's copyright, you will be paying all the bills of your record company, distributor and any stores which incur expenses as a result of your infringement. This can run into serious money as you can imagine. You will also be in breach of your record contract. Read your record contract carefully before using any samples.
Michael McCready represents clients in all areas of the music industry including music, radio, television, stage, and book publishing. His music law practice includes representing bands, record labels, production companies, recording studios, promoters, and music publishers. His work includes copyrights, analyzing and drafting contracts, trademarks, publishing, and litigation.
www.copynot.org --- VERY INFORMATIONAL
Contrary to popular belief and practice, sampling of an original copyrighted song without permission of the copyright’s owner is illegal copyright infringement.
Unauthorized sampling actually violates two potential legal rights. First, the instant you sample a portion of someone’s song (no matter how small), it constitutes a violation of the copyright in song itself - the © symbol - which is owned by the song writer or the music publisher. Second, sampling violates the sound recording copyright - the symbol - which is usually owned by the record company or recording artist. Thus, sampling without prior permission subjects the illegal copier to a copyright infringement in federal court by the original author (or publisher) and by the record company.
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What about music which is made up of samples and loops of other songs?
*** Although the arrangement itself may be original, you cannot claim copyright for any parts that are taken from any previous work. This means that although the work for the main part may be original, the parts which were copied from another track would still belong to the original author. You should certainly have permission from the original author of the samples before you consider publishing or broadcasting such a work.
Sampling : music is the act of reusing a portion of another sound recording. Whether unique percussion combinations or distinguishable guitar riffs, many musicians sample other's music.
Without obtaining permission from the original musician or owner of the rights to the music, many of these musicians face legal trouble, such as inunctions to not use the sample or even money damages. Obtaining permission for music sampling can be tedious, but will save you from legal action you could face if you sample without permission. Here are some tips to obtain permission before sampling music :
"Sample clearance" refers to the process of getting permission from the owners of the copyrighted music. Sampling music requires two sample clearances:
* Clearance from the copyright owner of the SONG -- typically the music publisher * Clearance from the copyright owner of the MASTER RECORDING -- typically the recording company
Find the Music Publisher
In order to get these sample clearances, you will first need to find the copyright owners of the song and master recording. The music publisher is typically the easiest to find; so, start there. Performing rights organizations, like Broadcast Music Incorporated (BMI) or the American Society of Composers, Authors, and Publishers (ASCAP), collect money for public performances of artists' music. Therefore, these organizations are a good place to locate the publisher.
You can find which organization controls the rights for the music you are sampling by visiting these performing rights societies online:
* www.bmi.com * www.ascap.com * www.socan.ca * www.harryfox.com
Once you're on these websites, use the search database to find the source song of the music you are sampling. If you are unable to find the song on the websites, try calling the individual organizations and ask for the song indexing department. Then, once you have the source, contact that source to ask for clearance for sampling the source music. Keep in mind that some publishers have policies against granting sampling permission.
A lot of publishers refuse to grant sampling clearance to artists that they've never heard of or do not know. If you can offer to pay them upfront and show your ability to pay, they may be more inclined to speak to you.
Find the Master Recording Owner
After you have obtained sample clearance from the music publisher, you must obtain sample clearance from the owner of the master recording. Here are some tips to help you find that owner:
* Ask the publisher * Ask the record company that releases the source music. You can check online record stores or the Phonolog directory at local record stores.
Finding the master recording owner can be difficult. Once you think you're on the right track, you may find that the record company sold their copyright to someone else, or that the rights to the song have reverted back to the original artist. There are sampling consultants that you can pay to help you through the sample clearance process, should you have trouble. Although experienced sampling consultants can be expensive, in the end, they can save you time and money. These consultants are familiar with the procedures, costs, and the people at the publishing companies who grant license rights.
It is important to plan ahead and leave yourself alternatives in case your sample clearance is rejected. Obtaining permission for sampling can be a very long process, taking months even. Don't forget that a lot of copyright owners have a no-sampling policy. If the music you were planning on sampling has a no-sampling policy, there will be no way to get permission to sample. It is wise to plan ahead and have alternatives in mind, in case your clearance is denied and you can't use it.
Alternative Solutions if Sample Clearance is not Granted Recreate the Music Sample
Many artists re-record the music they want to use, instead of using the pre-recorded master. This means that the artist actually plays and records the music to sound exactly like the original one they want to sample. According to copyright law, infringement only occurs when the original master recording is used, but not when the sound is mimicked and re-recorded. This is a great solution if you cannot obtain sample clearance from the owner of the master recording. You still need permission from the music publisher, because the song itself is copyrighted. However, you do not need clearance from the owner of the master recording.
Seek Copyright Owners who are Happy to Clear Samples
Some copyright owners want their music to be sampled; so, they encourage music sampling. These are good samples to find and use, since the process will be less tedious and surely fruitful. Contact the Artist Directly
If the artist still has some control over what sampling is cleared, you may have better luck contacting the artist directly. This is especially true when the copyright owners of the master recording and the publisher are not helpful.
*** Obtaining permission for music sampling can be a long and tedious process. However, legal claims of copyright infringement could mean that you are unable to use the music sample and you may even have to pay money damages. To avoid this legal trouble, be sure to get sample clearance.
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HOW TO CLEAR A SAMPLE:
Music attorneys often clear samples, although this can be somewhat expensive. Clearance agencies are usually cheaper, and many are familiar with licensing samples. Record companies can also clear samples for their artists, but the cost of negotiating and obtaining clearances will later be deducted from any recording advance or royalties the artist may be entitled to.
Of course, you may decide to obtain a sample license yourself. To clear samples, it is necessary to write to the record company and publisher of the sampled song. ASCAP or BMI will likely have the publisher's current address. In your letter, ask for a quote for a clearance fee, and identify the song you are sampling and how much is used. Don't forget to include a tape of the original song, as well as a copy of your unreleased song using the sample.
In granting a license, a record company may seek a flat-fee of anywhere from $100 to $5,000, or possibly more. Record companies may also seek a royalty (from $.01 to $.07 per record sold) as well as an advance. Music publishers may also ask for a flat fee or a percentage of income from the new song, or both. Depending on how the sample is used, some publisher may also demand a percentage of copyright ownership in the new composition. Because copyright owners are not obligated to grant clearances, you may have no choice but to comply with the owner's asking price, or remove the sample. Of course, a copyright owner may also deny permission to use a sample.
Different factors affect how much money a record company or music publisher will want for a sample. Price may vary depending on how much of the sample is used, how many other samples are used, whether your song has already been released, and the type of rights a record company is willing to grant. For example, a music publisher may choose to license a sample for sound recordings only. In this case, you would be unable to use your song containing the sample in a motion picture, video or CD-Rom without an additional license from the music publisher.
Finally, to keep costs down, some artists choose to create their own samples by first recording their own "cover" version of the sampled song. By using this technique, an artist avoids having to obtain a clearance from the original record company. Nevertheless, when creating your own sample based on another song, you will still need to obtain a clearance from the music publisher of the original composition.
Scratching and sampling has created some of this century's most vital and expressive music, bridging the gap between popular and experimental composition. Nevertheless, using a sample without permission violates two copyrights - the copyright in the sound recording and the copyright in the underlying composition. Because the cost of legitimately clearing samples cuts into an artist's record advance and royalty rate, it is understandable why many young artists later create their own samples in the studio after they become established acts.
While a sample of 1 or 2 notes is OK only if it is taken from a non-essential or commonly used phrase, another sample of 1 or 2 notes may be infringing if taken from a musically significant part of a song. Thus, taking the recognizable word "Help" from the Beatles' song, or appropriating the distinctive style of an artist's performance, such as James Brown's unique scream, would constitute an infringement. Because there is no hard and fast rule on what is safe to sample, the best advice is "When in doubt, obtain a license."
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