This Article Originally Published February 1998

by Donald S. Passman

A digital sampler is a machine capable of taking any guitar sound, drum sound, voice, etc., and making a perfect digital duplication. It can then be played on a keyboard, edited, etc. Unless you've been living in a cave for the last few years, you know that every rapper on the planet samples freely from other people's works. What started out as a minor practice of taking great drum sounds, unusual squeaks and groans (James Brown was and remains a special favorite of the samplers), has turned into a wholesale lifting of rhythm tracks, melodies, etc. For example, M.C. Hammer's "Can't Touch This" was a very close copy of Rick James' "Super Freak."

As with any new practice, everyone started out groping around for what kind of deals to make. In the early days, a lot of sampled records were released before anybody even tried to clear the rights, and the artists and companies often had an attitude along the lines of "if they catch me, I'll make a deal." And when they did catch them, the deals consisted mostly of throwing around a few bucks and buying out the rights.

Can you guess whose rights had to be bought out? The obvious one is the record company owning the sampled recording. But they aren't the only one whose rights you need. The publisher of the sampled musical composition must also be taken care of.

This "catch me if you can" attitude was first litigated in the case of Grand Upright Music Limited vs. Warner Brothers Records, Inc., 780 F. Supp. 182 (S.D.N.Y. 1991), which involved the rapper Biz Markey sampling Gilbert O' Sullivan's "Alone Again (Naturally)." See if you can guess how the judge ruled by reading the first line of his opinion:

"Thou shalt not steal."

You guessed it--Judge Kevin Thomas Duffy of the New York Federal court not only slapped the hands of the sampler, but referred the matter to the U.S. Attorney's Office for possible criminal prosecution! Intentional copyright infringement is a criminal offense. End of the days of casual sampling.

Because of this case, everyone now treats sampling with the utmost care and respect. Record companies won't release a record containing samples without knowing that the samples have been cleared, and you as an artist should want the same thing. Clearing samples is a major pain in the rear end, because any one of these people can cause you to scrap the sample by being difficult. There's nothing in the law that requires anyone to let you use a sample, and thus any record company or publisher is free to make you pull it off your record. And if you're on a tight schedule and/or if it ruins your song to take it out, you won't be a happy camper.

Since there's no compulsory license for samples, you have to make whatever deal the rights owners decide to bless you with. If the usage is minor, and it's a little-known song, you might be able to buy out all of the rights for a flat fee. That range is usually from $1,500 to $5,000 for the record company, and about the same for the publisher. If the usage is more significant and/or the song is well-known, or you happen to hit an ornery rights owner, record companies may still give you a buyout, but the price can go up radically--I've seen costs of $25,000 and more. But publishers rarely give a buyout in these circumstances. Instead, they ask for a piece of the song. The percentage varies with how significant the sample is in the work, and it's usually settled after the publisher listens to the composition and negotiates a deal. If you've lifted an entire melody line, they might insist on 50% of the song; if it's a more normal use, the range is 10% to 20%. Publishers may also ask to coadminister their portion of the composition, and this means they have the right to stop you from granting a particular license. So you often lose control of your own song when you sample.

Even when you get over these hurdles and all the clearances are agreed, the rights granted are often only for phonograph records and promotional videos. If you want more rights, you have to go back to the record company and publishers. They will then be free to charge an additional fee or withhold their permission. The lesson in all this is that putting a sample in your record is serious business. You may well lose control of your song and your recording when you do it, so think carefully about what it means. A moment of pleasure can mean a lifetime of pain.

Donald Passman is a Los Angeles-based music attorney with the firm of Gang, Tyre, Ramer & Brown. Specializing in music business law for over 20 years, his clients include major publishers, record companies, film companies, managers, producers, songwriters, and artists such as REM, Janet Jackson, Quincy Jones, Tina Turner and Green Day. On a regular basis, we will be excerpting from Mr. Passman's best-selling book, "All You Need To Know About The Music Business."

From "All You Need To Know About The Music Business" by Donald S. Passman. ©1991, 1994, 1997 by Donald S. Passman. Reprinted by permission of Simon & Schuster, Inc.

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