Sampling--a big issue in today's music business. It is a
term that crosses all areas of music from songs, records,
films, television, theatre, commercials, downloads, streaming
and beyond and it can affect anyone. There are many definitions
of the word "sampling"; in briefest terms, it is when a songwriter,
recording artist or record producer takes a portion of an
existing song, existing recording, or both and puts them it
into a new song, recording or both.
WHAT IS IT?
Sampling can take a number of different forms; with the most
The Song Itself. The recording artist or record producer
uses a portion of an existing song as a bridge, insert, or
portion of a new song.
The Master Recording.The recording artist or producer
uses an instrumental portion (e.g., a guitar or bass line
or full instrumental track) of an existing master recording
and inserts it into a newly recorded master.
The Master Recording and the Song. The recording artist
or producer transfers an existing master recording and vocal
performance of the song directly into the newly recorded master.
In cases where the producer supervising the session, the
re-mixer or the recording artist samples without permission
from the music publisher (the owner of the underlying song
sampled) or the record company (the owner of the pre-existing
recording sampled), the publisher and record company will
contact the recording artist or record company that released
the unauthorized sampled performance and let them know that
such a use constitutes an infringement of copyright.
Litigation could be next but if a settlement is negotiated,
the situation may be resolved through a continuing sharing
of money or copyright participation on the part of the sampled
publisher and/or record company.
In cases where the recording artist, the producer or the
record company requests permission before the actual sample
is put in the new record, the applicable music publisher,
record company, or both will, if the sample is approved, usually
negotiate a settlement.
As part of any negotiations, the music publisher or record
company owning the sampled composition or master recording
will request a copy of the new recording for review, review
of the sampled section, and determine its importance and value
to the new song or record.
NO HARD AND FAST RULES IN THIS AREA
There are no hard and fast rules in this area and final resolutions
are usually based on, among other things, the bargaining power
of the parties, the duration of the sample in comparison to
the duration of the entire new recording (although timing
may have little relevance if a key element or recognizable
piece of the original composition or recording has been used),
the nature of the sample (i.e., whether a core portion has
been used or just an incidental portion), the actual sales
of the new version if it has been released, whether the new
version has reached the charts, or whether the sampling party
(the one responsible for the new version) requested permission
prior to the commercial release of the new recording.
A SAMPLE WHICH IS NOT APPROVED
If the sample is not approved, the sample can be deleted
from the recording before it is released without any harm
to the new recording artist, record producer, record company,
songwriter and music publisher. In this regard and as a piece
of practical advice, if permission to use a portion of an
existing song or recording is requested by the sampling party
prior to the sample being recorded or released, the owner
of the sampled composition or sampled recorded performance
is more likely to look at the new recording in a positive
way and be open to a resolution involving a sharing of income
and ownership and not involving a law suit.
AN APPROVED SAMPLE
If the sample is approved by the music publisher or record
company of the pre-existing song and record, the matter is
then handled in a number of different ways including a one-time
"buy-out of all rights" fee; the payment of a percentage of
income received from either the new recording or the new song;
or the transfer of a portion of the copyright of the new composition
as well as the income generated from the new song.