This Article Originally Published October 2002


by Jeffrey & Todd Brabec

part two  |  part one

WHO OWNS THE COPYRIGHT

If a share of the copyright ownership is negotiated as part of the deal, the publisher of the new song will transfer a portion of the copyright (from 5% to 75% and sometimes 100%) to the publisher of the sampled composition. Also, the names of the songwriters who wrote the sampled composition will be added as writers of the new song and will receive credit on all uses of the new composition.

Under this type of deal, the music publisher and the writers of old song will receive a portion of all money made by the new version whether it's from CD sales, film and television uses, downloads, streams, commercials, print, radio performances or any other commercial exploitation of the new song.

For example, if the new song containing the old song or record sample, is licensed for use over the opening credits to a major motion picture, the publisher and songwriter of the sampled song would not only receive a portion of the synchronization and video buyout fee negotiated for the use, but would also receive their proportionate share of all income generated from all other uses generated by the film (e.g., mechanical royalties from sales of the soundtrack album or soundtrack single, performance royalties for radio and television performances of the song from the film, foreign theatre royalties, advertising commercial fees, sheet music and folio uses, CD-ROM and interactive media, downloads, streams, lyric reprints in novels, karaoke, etc.). The movie screen credit for the new composition (which appears usually in the closing credits) will also mention the original songwriter and publisher of the original song.

CD, TAPE AND RECORD SALES
(MECHANICAL ROYATLIES)


The music publisher of the sampled song can grant the owner of the new composition a worldwide license to use the sampled composition for an agreed-upon share of the mechanical royalties generated by sales of CDs, tapes and other audio configurations containing the new composition. Under this deal the publisher and writer of the sampled composition normally receive from 5% to 75% of the royalties generated by the new song but these percentages can be higher or lower depending on the facts of each particular case.

CONTROLLED COMPOSITION CLAUSE

In some cases, the writer and music publisher of the sampled composition will, in the case where the new sampling writer is either a recording artist or record producer, agree to be bound by the terms of the controlled composition clause of the recording artist or record production agreement. This clause is the one that usually reduces the amount of the songwriter's and music publisher's mechanical royalties that are paid by the record company to the recording artist/writer for songs that are on an album.

For example: if the sampling writer–artist (the new artist) has agreed in his or her recording contract to a 75% mechanical rate for all CDs and tapes sold in the United States, the music publisher of the sampled composition (the old song) may also agree that its share of royalties will be calculated on the same reduced rate.

In many cases, however, the publisher of the sampled composition (the old song) will demand that its share of royalties be based on the statutory mechanical rate regardless of the reduced controlled composition rate agreed to by the recording artist or producer who has used the old song. This type of deal is very common and can have a very significant negative impact on the royalties due the writers and publishers of the new song.

PERFORMANCE INCOME (Radio, Television, etc.)

As to performance income, the performance rights organizations will follow the ownership and payment percentages agreed to in the sampling agreement and will pay accordingly. Considering that songs can generate worldwide performance earnings in the millions of dollars, this area can be a gold mine for sampled compositions.

© 2002 Jeff Brabec Todd Brabec
This article is based on information contained in the new, revised paperback edition of the book "Music, Money, And Success: The Insider's Guide To Making Money In The Music Industry" written by Jeffrey Brabec and Todd Brabec (Published by Schirmer Trade Books/Music Sales/435 pages). Click Here to buy this book.




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