Article Preview - Sample Clearance

Using someone else’s recording in your music without permission can lead to disaster. We explain the ins and outs of copyright law, and guide you through the process of clearing your samples.

Richard Salmon

To sample or not to sample? This is the question many a DJ, producer, and songwriter must grapple with on an almost daily basis. Sampling is fun, and in the era of the ubiquitous digital audio workstation, very easy to do. But is it always a clever move from a legal and business perspective? In this article we’ll consider how to go about sampling within the law, how to avoid getting sued, and consider some of the pitfalls of falling foul of copyright law.

What’s The Problem?

Sampling involves the incorporation of another sound recording into your own new record. A producer may sample an underlying element in a record — for instance a string or bass line, perhaps borrow a drum loop, or even lift several bars wholesale from a classic soul record — and write a chart-friendly melody over the top.

The creative act of sampling is nothing new. Much of the Beatles’ late-’60s output owes a great debt to the sound-collage and tape-splicing artistry of production legend George Martin. Nor should sampling be a worry, when the primary source of the sample is self-created. Be it a vocal drone, birdsong recorded and cut up into your dance tune, or as in the case of the Nile Rogers’ inspired vocal stutter, ‘No... No... Notorious’. Rodgers had sampled Duran Duran’s vocals and edited them into an immediate radiotastic hook, as he’d already done on 1984’s pitch-shift sampled intro to ‘The Reflex’. Modern-day producers such as Timbaland and Pharrell Williams aren’t averse to incorporating their own homegrown beat-box elements into major airplay hits. The Williams-produced ‘Rock Your Body’, for instance, is liberally peppered with Justin Timberlake’s own down-the-mic percussive elements.

The legal headache, as far as the producer, artist or songwriter is concerned, stems from using another person’s original sound recording without prior permission, since this constitutes copyright infringement. The act of sampling without permission infringes copyright in three distinct ways. Firstly, it is a breach of copyright in the original sound recording. Secondly, it is a breach of copyright in the underlying music and lyrics, and thirdly, it constitutes an unauthorised use of one or more of the performances in the original work, such as a guitar riff, vocal hook, or drum part. In addition, the moral rights of the original artist may be infringed, if sampling is undertaken in a way that the artist objects to, or if the artist isn’t credited.

Sense & Substantiality

In UK law, under the Copyright Designs and Patents Act 1988, in order for infringement to take place a ‘substantial part’ of a copyright work must have been used. Substantiality in UK law differs somewhat from its US counterpart, the doctrine of ‘substantial similarity’. Moreover, US copyright law permits the defence of ‘fair use’, which has been invoked in a number of recent cases, although not always successfully (see ‘Case Dismissed’ box).

Regarding the question of whether a ‘substantial part’ has been copied, the UK case of Produce Records Ltd vs BMG Entertainment Ltd (1999) established that a 7.5-second sample of ‘Higher And Higher’, a track originally recorded by the Farm and owned by Produce Records, constituted infringement when appropriated by veteran Latino duo Los Del Rio, for their summer hit ‘Macarena’. BMG settled the case out of court, thus avoiding trial, with the major label appearing to concede that Produce had an arguable case.

Robbie Williams blends into the crowd at a Stoke City home match.

In Ludlow Music Inc vs Williams (2000), a two-line lyrical ‘sample’ of the song ‘I’m The Way’, written by Loudon Wainwright III and published by Ludlow Music, formed the basis of a copyright dispute, when Robbie Williams used very similar lyrics in his own song ‘Jesus In A Camper Van’ — there was no use of the original recording, so the dispute only concerned copyright in the song itself. At considerable expense to the record label, the judge ruled that the Robbie song be removed from all future pressings of his album I’ve Been Expecting You. Robbie also lost out on 25 percent of the publishing income on ‘Jesus In A Camper Van’ to Ludlow Music, a figure said to be somewhere in the region of £50,000.

Despite the fact that the judge actually described Loudon Wainwright’s own song as a parody of an earlier Woody Guthrie song, he was of the view that the extent of the copying was substantial, “although not by much”. Compare the following lyrics and decide for yourself! Loudon Wainright’s lyric goes:

...