Music with all its labels and tags is many things but legally speaking it is intellectual property. Creative people aren’t the most attentive when it comes to complex legal details but it’s the details that matter. It can be boring. The lingo seems complex, plus what are the chances that Warner will come after you for that bootleg Dua Lipa remix you posted on Soundcloud last week?
If you don’t fancy reading through pages of legal definitions and documents don’t worry, we’ve got you on the basics!
By the end of this article, you will have a basic understanding of sampling’s legal side and the answers to these questions:
- What is a copyright?
- What is a master recording?
- What is a phonogram?
- What do the © and the ℗ mean?
A word of warning, this is a rough guide and won’t hold up as official legal advice!
Understanding the basics of copyright law
So let’s first delve into the basics of copyright. There are two copyrights to every recorded song, a © and a ℗. When you write a song/collection of ideas in your head, the second you scribble the lyrics and chords onto a piece of paper or make a recording of the song, you create these two copyrights for yourself (the © and the ℗).
What do the © and the ℗ mean?
Using the song ‘I Will Always Love You’ as an example is the best explanation I have read about this subject.
Dolly Parton writes the song ‘I Will Always Love You’. She owns the underlying copyright (represented as a ©) and controls the song.
Enter Columbia Records. They get Whitney Houston to sing ‘I Will Always Love You’. The actual physical/digital recording of Whitney’s version of the song is controlled and owned by Columbia Records. The copyright of the recording is called a phonogram, which is represented by a ℗.
Each time a new artist covers Dolly’s song, a new recording is created, and therefore a new phonogram (℗). But as long as these artists sing the same song and don’t change ‘I Will Always Love You’ too dramatically, Dolly will own the underlying copyright of the song. Therefore every time somebody wants to cover ‘I Will Always Love You’, they need to obtain permission and a licence from the © owner.
With sampling, the same rules apply. If I want to sample a nice synth part in a Stevie Wonder song I have to obtain permission from the Copyright holder of the song(©) and the copyright holder of the actual recording, also known as ‘the master’(℗). Because I want to use the musical idea of the notes in the synth part and I want to use the actual recording Stevie Wonder created.
The owner of the underlying copyright © is usually the songwriter or publisher and the owner of the master recording (phonogram) ℗ is usually the label or the artist. If you want to go about clearing a sample you can use the ASCAP or BMI repertory. Search the song title and you can find out the publisher and the writers.
Once you know who the owners of © and ℗ are you can negotiate a licence to use the song and recording.
Sometimes the label and publisher will ask for an upfront payment, other times they’ll negotiate a split of the royalty payout from the new song. The type of deal negotiated is influenced by many things. For a small artist with no money to buy the licence they need to show the new song has potential for big record sales/streams and therefore is a good payout for the copyright owners down the line.
“Well thanks Producertech, that’s great to know but I don’t have thousands of pounds to clear a sample, nor do I think the label and publisher will accept a royalty cut. Is there a way I can sample something for free?”
Yes, there are plenty of alternatives.
Loopmasters offer entire libraries of ready to sample audio. This type of sampling usually falls under ‘royalty free sounds’ or ‘creative commons', where people create libraries of music specifically for other people to sample with no legal hassle!
There are also some legal loopholes, most notably the public domain.
Depending on the country after around 50-75 years after the death of the creator their work passes into what is known as the public domain. This is where no publisher or songwriter owns the copyright and everyone is free to use the intellectual property.
Beethoven’s music being in the public domain is a good example of this. Technically, you could legally write a new song using one of Beethoven’s melodies without obtaining permission from anyone. Maroon 5’s song ‘Memories’ sounds eerily similar to Johann Pachelbel’s ‘Canon in D Major’.
Has anyone sued Maroon 5 for it? No, because the melody they copied is in the public domain.
Here is a great place to find audio in the public domain.
There are other loopholes that are less cut and dry.
You could re-record the music you are trying to sample. Listen to the band Skeewiff. A lot of their music in the past involved remixing re-recorded versions of classic tracks, done so skilfully that you couldn't tell that the sample was re-recorded.
Here is their version of Man Of Constant Sorrow from the film Oh Brother Where Art Thou.
It sounds almost exactly the same as the original version but it is in fact an original version recreated by the band. By re-recording the sample, they are not using the actual recording and therefore not infringing the record company copyright.
You could also make the sample unrecognizable. For instance you could sample a piano melody from a funk record, you could then manipulate the sound by reversing it, re-pitching and adding a bunch of FX to it.
At the end of your sound design it’s completely unrecognizable as the piano, and you can argue that you have created something entirely new and separate from the original sample, that in turn a new copyright should be created for this new manipulated sound, and that it should be owned by you, the creator.
But music as intellectual property is very big business in 2021. Bob Dylan recently sold the rights to his entire catalogue of about 600 songs to Universal for an estimated $300 million. If your song that ‘manipulates’ a Marvin Gaye sample starts to gain millions of streams for some unpredictable reason and you didn’t obtain permission you should probably get your wallet out when the lawyers come knocking.
‘Manipulation’ of a sound is completely subjective. What sounds totally unrecognisable and new to you, might sound perfectly familiar to the lawyers of a big label or artists.
Maybe you’re thinking, ‘well they’ll never catch me’. You might want to think again. Technology is only getting more advanced on a day-to-day basis.
The technology that music recognition apps like Shazam use is getting better and more accurate. Companies like Who Sampled have already released an app that detects and finds the original sample used in a song, and these will only become more accurate over time.
Our advice, it’s just not worth the risk.