As a music artist, you’ve probably played around with using bits of music, sound clips, or other ‘samples’ in your work.
There is a lot of confusion out there about how to legally use these tidbits when you start selling your tracks.
If you keep it below a certain length, say, six seconds, is it all good?
Some people say so, but we all know you can’t believe everything you hear.
That’s why you’re here, to get the real story.
So read on for the details of how to legally use sound samples in your music!
Disclaimer: I am NOT a lawyer and am NOT offering any legal advice. Consult a music attorney if you have any questions or need legal counsel.
Double Whammy
What you may not know is that using sound samples will bump you up against not one, but two different forms of copyright.
One concerns the underlying musical composition, which is owned by the songwriter and/or publisher.
The other set of copyright covers what is known as the master recording–it applies to that particular performance or recording of the piece, which is most often owned by the label.
You need the rights to both, no matter what, if you’re using any part of a song. It doesn’t matter if it’s only a one-second clip.
So much for the six-second rule.
Now, how do you go about getting the legal permission to use the sample?
Well, you have to contact the copyright holders of both aspects of the track you intend to use.
The first step is finding out who the copyright holders are.
The Label
If you want to know who exactly owns the song you want to sample, you can always start with the liner notes.
If you don’t have any, your next step is to search the international song copyright databases.
Using the search function in ASCAP, SESAC, BMI, SOCAN, and Harry Fox is a great tool to find the rights holders.
Once you track down the label, go to their website and find the contact information you need to get in touch with someone at the company.
Depending on how large the label is, or how recently the song was released, you may have to go through a few people before you can find someone who can help you.
What can make this even worse is how frequently different labels buy each other out.
The original label that published the song may now be a subsidiary of who-knows-what other label.
You may have to look up who bought what before you can find the ultimate owner.
The Artist(s)
It shouldn’t be too hard to find the artist’s name, but how do you contact him or her?
You’ll need to find the (official) contact form associated with the artist–either on their website, or on the one belonging to the label.
They’ll either refer you to the A&R rep or the artist’s agent, or blow you off altogether.
Or, they may offer you whatever terms they want, even if those terms are completely insane.
They can ask for an upfront fee, royalty percentages, or any combination of the two, with or without the stipulation that the fees kick in once you reach a certain number of sales, streams, or downloads.
A typical payment structure may run something along the lines of what is listed below. Both the publisher and the label will want their cut.
The music publisher may want:
- An “advance” payment of anything from $250 to $5,000
- and/or a percentage of income from the song sales, which could be 15% or go as high as 50%
As for the owner of the master recording, they may want:
- An advance payment that is usually $1,000 and up
- A payment known as a “rollover” that comes due once a certain number of copies (or streams or downloads) have been sold. As an alternative to the rollover, a royalty may be required instead, though the industry is moving away from this structure.
So basically, they can ask for whatever they want, or ignore you altogether. And there’s nothing you can do about it.
This is why sampling (legally) can be a pretty frustrating process, especially if you’re not a well-known artist.
What if No One Answers?
This is the difficult part. Labels, agents, and artists are busy, and may not feel that a sample clearance request out of nowhere is worth their time.
Unlike the rights to a cover song, they are not obligated to grant, or even reply to, a sample rights request.
This means that you may find yourself talking into thin air with no reply.
It will be even more frustrating than getting no answer at all if they happen to say “come back when you’ve made it big” because, in the meantime, you can’t use that song recording.
It means that they only want to talk to you if there’s some money in it for them. This may be rude, but it’s not exactly unusual.
You may have to scrap your plans to use the sample, or else change it so drastically in your mixing process that no one will recognize it.
If you alter the material so much that it is now essentially your own work, no one can charge you with infringement.
But then again, that may ruin the entire point of your track.
What About Fair Use?
The “Fair Use” exception to copyright law is a very important one, but if you’re here looking at resources to help you sell your music, you’re already on the path to seeking commercial gain.
Intending your work for commercial gain (making money with it) is a major obstacle to claiming fair use.
Fair use usually concerns quoting books in reviews, referencing speeches in newspaper articles, or making printouts for classroom instruction.
It also covers things like printing (and performing) sheet music for your high school musical.
You get the idea. No self-respecting artist is going to sue schoolkids for using a song in a class play–but if you start making money from their work, they’re sure to pounce.
If You Can’t Clear It…
Don’t use it. Seriously, don’t.
There’s a chance that you’ll never be caught, especially if you don’t make it big, or at least, that particular song doesn’t.
But if that track hits the mainstream, chances are much higher that someone somewhere will notice, and it’ll get back to the copyright holders.
That’s when they’ll sue you for infringement, especially if you’re making decent money.
On top of that, if you get signed, labels usually insulate themselves from the damages with an indemnity clause.
That means that more than likely, if they get whacked for YOUR infringement (which they aren’t obligated to clear for you), then they may use their lawyers, but you’ll foot the bill.
So the real question is, will you be making enough to settle the damages without going in the hole?
Consider using a different sample–one that you know can be cleared–and wait until you’re more settled in the biz to use your first choice. If that’s even necessary at all.
It can be hard to give up your artistic vision, but consider it from the other point of view.
Would you like it if someone used your work without permission, became famous, and never paid you for your creation?
Of course not. So if you apply a bit of the Golden rule, you can see why you’d want to take copyright seriously.
Make more than one copy of your song. Perhaps you can use the more generic or altered sample for now, and leave your other version sitting to the side.
Once you know more people or have a name behind you, maybe the copyright holders will finally answer your email.
Imagine what a great remaster or remix you can release later once you clear the samples!
Other Ways to Sample
If you really want to use a particular piece of sound or music in your work, one way to avoid half the work is to re-record it yourself.
Tweak the sound, change the rhythm, or do it in a different key if you really want to set it apart.
That way, you eliminate the need to seek master recording rights, and only need to deal with the songwriter/publishing ones.
That’s half the research and only half as many people to contact. And, while we’re being optimistic, that’s only half the papers to sign and fees to pay.
Or, you can use a different sample altogether.
There’s now a website called Tracklib, which contains a database of songs for use in sampling.
Everything they offer can be quickly, easily, and affordably cleared, offering a whole realm of opportunity to artists everywhere.
Buy a full, uncompressed 16-bit WAV file for 1.99 and mix away! Then, once you’re ready to use the song, they have three pricing categories.
Category A is the most expensive, with B less so, and category C costing as little as $50 for the license and 2% of your revenue. Not bad, right?
Each of these categories–A, B, and C–varies in cost based on how much of the track you have used.
A five-second sample looped for five minutes still counts as only using five seconds.
Using two five-second samples counts as ten seconds total, and so on.
Before you give up on the idea of sampling altogether, give them a look and see if you can use something from their ever-growing library.
GigFaster Can Help!
Finding clearance for your samples can be time-consuming and frustrating, but booking gigs and pitching to record labels doesn’t have to be!
Here at GigFaster, we help you organize your pitches and line up your next show, so that you can focus on what’s really important–creating great music!
Sign up for your one-week free trial to see how we can help you make your dreams a reality!
