Michael C Smith, October 12 2018

Why Sampling isn't worth your time...unless you're sampled.

Made popular in rap music and later expanding to other genres, sampling is the practice of taking a piece of existing recorded music and inserting it into a second derivative piece of music. Producers who sample may take a large recognizable section such as a chorus and insert it into their work, or very craftily "chop" the sample by rearranging different sections of the original song until it is barely recognizable. Although the process of sampling is considered an art by many in the sampling community, here's why you shouldn't do it, and also why you should pray someone samples you.

Copyright Infringement

Ultimately all recorded music is copyrighted by nature of copyright law. Once a song is documented in tangible form whether that be paper, tape or digitally, a song is copyrighted. Registration of that copyright is another matter we will discuss in a moment, however nonetheless the song is copyrighted if in tangible form. The moment you sample any length of copyrighted music you are infringing on the original songwriters copyright. While you may or may not care about this, your label, artist and bank account just may. The owners of the song you sampled definitely will. If you haven't figured it out yet by reading my blogs, the music business is about money. The original songwriter in most cases will give up a portion or all of their rights to a publisher or record label for an advance. That advance in many cases needs to be paid back by the artist by their royalties and often results in a big deficit in that artists' account for years.

Now there's multiple ways the account gets paid off, but one of those ways is by licensing the music for different uses. One of those uses is a derivative work. That derivative work includes the sampler's (the person sampling the original song) new song. One way creative people make money is by waiting for someone to use their work without permission. In many cases the owner of the original work will notice that the infringement took place and wait to file a complaint until that work gains a substantial amount of streams, sync licenses or other uses. Once that happens the copyright owner will show up and ask for damages. The beauty of copyright registration, is that the court favors the holder of the registration. This means that if taken to court, the judge will lean towards the plaintiff, not you. Furthermore, you can face millions in damages, and if up against a savvy lawyer, face  up to an additional $250,000 fine and five years imprisonment. Other times, the copyright holder may not wait for the song to blow up. In 2004 Record company EMI sent a cease and desist to producer Danger Mouse for taking parts of Jay-Z's "Black Album" and the Beatles "White Album" and creating the "Grey Album". While both Jay-Z and the surviving Beatles approved of the mashup, the copyright holder of the "White Album" EMI did not, and forced Danger Mouse to pull the album.

In today's contracts, most artists will have a clause that states that a portion of their royalties will go to paying the original copyright holder. This causes an issue when the artists contract may state they will receive a certain percentage of royalties but the original copyright owner wants more. For instance, if the artist gets 75% of statutory compulsory rights and the owner wants 100%. You wind up owing 25%. Not to mention, if the contract states that the artist is responsible for clearing samples and you don't, it's the artist not the producer who sampled the song that will be held liable for damages in most situations.

Original Copyright Holders Rejoice!

On the other hand, if your music is sampled without your permission and assuming you own the copyright, you have a lot of benefits! You can seek damages going back to the first song released, streamed or sold to include free downloads for promotion. Assuming the creator of the derivative work does the right thing and contacts you for permission to use the sample before they release the song, the ball is in your court. You can charge them whatever you want. You can negotiate for percentages in mechanical and performance royalties, you can ask for a portion of any sync licensing attached to the derivative work. You can ask for credits on the new song. The sky's the limit. Sure the party that sampled your music can refuse to give what you are asking for and not release the song, but then again that artist is on a timeline to deliver  a specific amount of songs to the label, that the label and not necessarily the artist considers acceptable. This means if the creator or owner of the derivative work has 14 songs but the label only likes nine, if the song you sampled is one of the nine, the artist is kind of up a wall.

How to Sample Correctly

For those who really want to use sampling techniques in their music, there's a way to do it and keep 99.9% of your money in your pocket. You do it by sampling work for hire musicians. Whether it costs you $1,000 or $5,000 you'll save hundreds of thousands if not millions by not sampling an existing piece of work. Depending on who you sample you might even be able to do it for a whole lot less than $1,000 at that. The premise is that when you commission a work for hire, the person who creates the music assigns all rights to the buyer. There's nothing wrong with sampling a piece of work you own.

In closing I strongly suggest that producers don't sample existing songs and that artists don't accept songs with samples that need to be cleared. Artists struggle enough with trying to keep money in their pockets. The point of selling your music is to make money, not to make someone else more money. If you are intent on sampling, hire a band or instrumentalist and own the copyright.

Let us know your thoughts below!

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Michael C Smith

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