Can you just imagine the cost to clear the rights for an album like the Beastie Boys’ Paul’s Boutique? The Dust Brothers dumped the kitchen sink into the Beastie’s landmark album in the days before Grand Upright Music, Ltd. v. Warner Bros. Records Inc.; the landmark lawsuit against Biz Markie by Gilbert O’Sullivan, which changed the process and future of hip-hop sampling.
Lawsuits and controversy aside, we’ll probably never see sampled albums as they were back in the mid-1980s, but that doesn’t mean that sampling is gone. It’s often harder to recognize sampling. Sometimes the sample just doesn’t fit the traditional hip-hop model, and sometimes the sample is so technologically manipulated that it’s unrecognizable.
A Client’s Compositional Dilemma…
To illustrate, ARC Law Group was once approached by the owners of a record label specializing in a cappella recordings. They were working with a group that had covered a popular song from the band Journey, but had made the creative decision to include one line from a separate Journey penned tune at the end of the recording. The record label wanted to know if they had to clear the rights for the one line. The simple answer is: Yes. Even though we usually associate sampling with the Sound Recording copyright, the Composition copyright is also subject to “sampling”.
Many artists and record labels are familiar with the concept of the Compulsory Mechanical License for composition rights. Simply put, the Copyright Act allows you to record a new version of a previously distributed musical work without obtaining permission from the copyright holder of that original work. There are some important factors on exactly how this compulsory license works (i.e. the new work cannot change the basic melody or fundamental character of the original work), and there are requirements that the new work obtain the compulsory license before distributing the new work (done through Harry Fox Agency), which you should be aware of before releasing your cover song. It’s also important to note that the Copyright Act requires that the creator of the new work pay the owner of the rights to the original work a statutory royalty on each copy they sell of the new work. Currently, that royalty is set at 9.5 cents per copy.
In the case of the a cappella Journey song, as with all samples, the use of one line would not qualify for the compulsory license as the “sampled” line is considered a change in the basic fundamental character of the original work.
If you can’t utilize the compulsory license, then you MUST be granted the rights to use your sample from the copyright holder of the original work. Thus, our record label client had to contact the publisher of the Journey song and negotiate the rights and royalty rate.
As you might guess, there are instances with samples where the original rights holder either (a) doesn’t want to allow their work to be sampled; or (b) wants far more than any statutory royalty rate. Plus, a record label would potentially have to pay an attorney to negotiate those rights.
A Compulsory Future For Samples?
Some have argued in favor of a compulsory system for samples, but that has yet to happen. Those against the compulsory system for sampling argue, in part, that it might damage the viability of the original work. Even if a compulsory system were put in place, it would still be cost probative to do an album like Paul’s Boutique, where there were several thousand samples used. Even if the royalty rate were set at 1 or 2 cents per sample, a single song like Hey Ladies might rack up 40 or 50 cents per copy sold. At 99 cents per track for a download, anyone who understands how artists are paid (based on net profits) realizes that taking 50 cents per track for sampling costs would leave the artist with next to nothing (if not in the red).
The bottom line is that while it will never be 1986 again, the concept of sampling is still a big part of the music business and it is important to understand that any sample must be cleared with the copyright holder of the original work, and is not subject to any compulsory licensing. So, if you think you might be using something that would be considered a sample on your record, you’d be well advised to chat with an attorney first.
Mark A. Pearson is a founding partner at ARC Law Group. He’s helped license music, film, and technology rights on behalf of his clients. Mark can be reached at mark@arclg.com.
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