This Article Originally Published September 2002

by Jeffrey & Todd Brabec

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.

Sampling can take a number of different forms; with the most common being:

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.

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.

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.

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.

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.