Clearing Music Samples: Art or Crime?

Becoming a producer has never been more feasible. Expensive equipment is no longer essential and it doesn’t cost much to distribute your music either. The more producers there are out there, the more samples that are used. And somebody usually holds the rights to those samples. Sometimes it is the artist themselves, but in most cases you’ll have to reach out to labels and publishers. While most artists tend to allow their songs to be sampled – sometimes even conceive it an honour – commercial enterprises are primarily concerned with money. If you don’t clear all the rights prior to using a sample, you might end up in legal and financial turmoil. Even Jay Z had to find out the hard way. Want to know what to keep in mind on your road to becoming the next DJ Premier? Here are the facts.

Falk Schacht is a German journalist, hip hop guru and DJ who has been producing music for 25 years. He described the art of sampling as a “musical declaration of love” in a recent interview. Many artists would certainly agree. Jana Vejmelka, who has worked on both the label and publisher’s side, confirms that the “artists and authors themselves usually wouldn’t mind granting the rights – even for free. If only there wasn’t a whole bunch of additional rights holders.” Many artists sign contracts with record labels and publishers, so that is where most of the rights will be held.

Copyrights & Neighbouring Rights

There are two sets of rights to any recording: “To keep it simple, there are the composer’s copyrights, concerning the melodic sequence of the song, and there are the neighbouring rights, concerning the master recording of that song,” Schacht explains. A publisher usually exercises the copyrights, while the neighbouring rights lie with the label. According to the most recent ruling of Germany’s highest court, the Bundesgerichtshof, any usage of a sample that has not been cleared is in violation of the rights to the master recording, no matter how long or short that sample may be. Says Schacht: “If I only sample a sound, like one piano note, I haven’t yet violated the copyrights to the melodic sequence of the original song. The longer the sequence I sample, the more likely it is that I also violate the rights to the original melody.” To sum this up: “As far as the neighbouring rights are concerned, the length of the sample is irrelevant according to current law. You have to clear the sample. As far as the copyrights are concerned, whether you’re violating the composer’s rights depends on the length of the sample.”

Vejmelka confirms that in the case of the label’s neighbouring rights, even using a shred of a note could constitute a breach of rights. “So size doesn’t necessarily matter”, she explains.

“Average producers” aren’t allowed to sample

The court ruling Schacht mentions is quite amusing to read. The court decided that it is illegitimate to sample tones or sounds if it is possible for an “averagely equipped and proficient producer” to create a recording of his/her own that is tantamount to the original.

Says Schacht: “What exactly is meant by ‘averagely equipped’ in the year 2015 is not specified. Also, is a ‘proficient producer’ any different from a bedroom producer working on his laptop and uploading and selling his work on Bandcamp? Unfortunately, the ruling doesn’t elaborate.” The ruling apparently states that producers who aren’t averagely equipped and proficient are allowed to sample, since they cannot recreate the sample on their own. “It remains to be seen how German courts would rule should someone ever resort to this argument,” Schacht continues. So should you ever land in front of a judge for this matter, feign incompetence!

Sample like a world champion

Eskei83 is a DJ and producer from Dresden and the reigning Red Bull Thre3style world champion. Eskei reveals that he has “never cleared any samples” for any of the songs he has produced on his own. “I was recommended not to ask in the first place, because requests of this magnitude are completely irrelevant to labels. They will just decline without batting an eyelid, because they won’t get any benefit from making the effort.”

Sampling has long since exceeded the boundaries of hip hop. Says Eskei: “I think sampling has become a vital part of the entire genre of electronic music. Ninetoe’s smash hit Finder, for example, relies heavily on that striking sample. Paul Kalkbrenner’s hits are based on samples too, as are trap hits like Harlem Shake by Baauer, Bumaye by Major Lazer or A$ap Rocky’s Wild For The Night, for which the sample hasn’t even been cleared, if I’m not mistaken.”

Criminal culture

Instead of recognising the Zeitgeist and striving for a more tolerant discourse around sampling, all signs point in the direction of criminalisation. The extension of the legal force of neighbouring rights from 50 to 70 years in 2011 certainly played a part; many a lawyer could be seen rubbing his hands after that decision. Copyrights end between 50 and 70 years after the composer’s death in most countries (it’s 70 years in Switzerland and Germany). “Once no more rights are attached to a musical work, only then can it be used without further thought”, Vejmelka explains.

“In case of doubt always consult a lawyer,” advises Schacht. “I myself have never attacked anyone who sampled from me. But that is different from individual to individual and also has to do with contracts that may have been signed. While Chuck D was probably fine with Rakim sampling one of his lines on Guess Who’s Back, the publisher administering his copyrights probably wanted to see cash. After all, we’re talking about a commercial enterprise here, they don’t care about cultural concepts.” Eskei points to all the creative commons music on the internet that is available for free and other alternative rights management models, as well as whosampled.com, if you’d like to learn more about samples that are already in use.

By the way, Schacht’s favourite sample at the moment is the piano in ODB’s Brookly Zoo. “The chords have been pitched multiple times. By classical definition it sounds ‘wrong’, thereby proving that something ‘wrong’ can sometimes be ‘right’.” Just like sampling itself.

More about sampling on iMusician:Sampling – history and definition (Parts 1 & 2)