The Samplist & Turntablist Copyright FAQ :

• What is copyright?
  
• What does copyright protect?
• What does copyright not protect?
  
• When is my work protected?
  
• I bought the album, don't I have a right to sample from it?
  
• We just played our prom and we rocked. Can minors obtain copyright?
  
• What kind of forms do I need to fill out?
  
• Do I have to put the © sign on what I release?
• What the hell is (P)?
  
• How long to copyrights last?
  
• Okay then, Mozart has been dead enough time for his copyright to run out, can I legally sample recordings of classical music?
  
• Well, if I did illegally sample some music, how can I avoid getting caught?
  
• I hear a lot of music with recognizable, unlicensed samples. How do those guys get away with it?
  
• What about all those songs with samples from movies and TV shows?
  
• Don't I have a Constitutionally-protected First Amendment right to sample?
  
• Okay, now I'm totally frigtened and want to find out how I can go about licensing my samples?
  
• What about my ill mix tapes that I sell at the barber shop?
  

  What is copyright?
  Copyright gives the owner the exclusive rights to:
  

• reproduce the work in copies or phonorecords;
  
• prepare derivative works based upon the work (a good example of a derivative work is a "remix" or "sequel");
  
• distribute copies or recordings of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
  
• perform the work publicly;
  
• display the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work; and
  
• perform the work publicly by means of a digital audio transmission. (This last right applies only to sound recordings.)

  If you're a samplist, you're probably violating reproduction, performance, and derivative works rights. What does this all mean? If you get sued for copyright infringement, the person suing you must claim that at least one of the rights listed above are being infringed upon by what you're doing. On the converse, if you decided to sue someone for violating your copyright, you have to assert that one of the rights above are infringed.

  There are two major exceptions to the Copyright Act all samplists should know about. The first is Fair Use and the second limitation takes the form of compulsory licenses. Fans of Negativland should be familiar with Fair Use. If Copyright is our fence, fair use is the gate. (Further explained in the Fair Use section.)

  What does copyright protect?
  Copyright protects original works of authorship including literary, dramatic, musical, and artistic works such as poetry, novels, movies, songs, computer software and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, but it may protect the way these things are expressed. In a sampling context though, we are really concerned with sound recordings, musical compositions, and audiovisual/motion pictures.

  As electronic musicians, I think it is very important to reiterate that method is not protectible. So, for example, you read an article about the sampler method by which Amon Tobin makes chop suey of his breakbeats. You can use the method without infringing any of his copyrights (depending upon what you're sampling, of course.) So tell your creative nemesis that he doesn't have an exclusive right to route his vocoder through a Korg MS-20 into a Heil Talkbox and a wah-wah pedal. (Try it!)

  What does copyright not protect?
  Several categories of material are generally not eligible for federal copyright protection. These include among others:

  * Works that have not been fixed in a tangible form of expression (for example, choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded)

  *Titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents

  *Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration

  *Works consisting entirely of information that is common property and containing no original authorship (for example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources)

  When is my work protected?
  Your work is under copyright protection the moment it is created and fixed in a tangible form. (Ex. The notes of your song transcribed onto staff paper; a CD burned with your song on it.) The common misconception is that you can only get copyright protection if you register your "tangible form" with the U.S. Copyright Office. That is simply not true. Never say, "I should copyright this song." It was copyrighted when you put it on CD or paper. Say instead, "I should register the copyright for this song." That's a good way of understanding this concept.

  So, yes, you own the copyright to the song you recorded earlier this week despite filing a form with the government. But filing with the Copyright Office is in your best interests for a few reasons. First, you cannot sue anyone for infringing your work unless your work is registered. If Walmart uses your ditty about workers' rights in an ad, you have some recourse against those bastards. Second, if you register your work within 3 months of publishing or releasing it, when you sue Walmart in court and win, you can get statutory damages and attorneys fees on top of your damages. If you register after 3 months, you only have the option to sue for actual damages and lost profits. Third, if you want the Customs Service to prevent importation of bootlegs of your album, your album has to be registered first. Then again, if your album is popular enough to cause international bootlegging, you probably have a lawyer by now.

  I bought the album, don't I have a right to sample from it?
  No. Owning a copy of somebody else's record does not give the possessor the copyright. The law provides that transfer of ownership of any material object that embodies a protected work does not of itself convey any rights in the copyright. You can buy and sell CDs and records and other media but you have no rights to use the material beyond the implied licensing, which is merely for your own personal enjoyment of the intended use: listening at home in your bed with headphones on and your eyes closed. You have a right to sell your copy of a record, but you have no rights under copyright law to anything on it.

  We just played our prom and we rocked. Can minors obtain copyright?
  For all you kids out there, minors may claim copyright, but state laws usually regulate the business dealings involving copyrights owned by minors. I was registering copyrights of songs I co-wrote when I was 15 years-old. I wasn't a narcissist, my co-writer's mom was just paranoid. And now my childhood collaborator is signed to Warner Brothers, so maybe it was a smart thing for him to do given my newfound sampling prowess. But if you can afford it, I recommend you do it because you get a cool certificate back from the government that you can bring into school for show and tell.

  What kind of forms do I need to fill out?
  There are really two different types of copyright registration you need to concern yourself with. Registration for composition and registration for a sound recording. What's the difference? Usually the artist maintains composition rights and the label maintains the sound recording rights. Or, back in the day, the songwriter would maintain the composition rights and the artist recording the song would maintain the sound recording right. For example: Cole Porter owns the composition rights to "Night & Day". Frank Sinatra owns the sound recording rights to his rendition of it. Register your demo for composition registration and register your studio, mixed-down version for sound recording protection or your label will.

  Here are the forms to use, as supplied by your loving government:
  

• Sound recordings form
  
• Sound recordings form with instructions
  
• Composition form
  
• Compositions form with instructions
  Or, kill two birds with one form :
• Sound recordings and composition form
• More information of composition copyright

  Do I have to put the © sign on what I release?
  This area of Copyright law is called "notice" -- providing notification to people that someone (most likely you or your label) is claiming copyright to the work. Notice has not been a requirement since 1989, when the US entered into an international copyright agreement known as the Berne Convention. (There's your history lesson for the day.) So, you don't have to put © on everything but it sure helps:

  Use of the notice informs the public that the work is protected by copyright, identifies the copyright owner, and shows the year your album was released. Furthermore, in the event that your lyrics are infringed, if a proper notice of copyright appears on the published copy to which the guy who jacked your lyrics had access, then he cannot say in court that he didn't know the work was copyrighted, i.e. innocent infringement. Innocent infringement occurs when the infringer did not realize that the work was protected -- think of him shrugging his shoulders and saying, "How was I supposed to know?" If the lyric-jacker's claim of innocent infringement is accepted by the court, then he may be able to get out of paying statutory or actual damages.

  A caveat: just because an album doesn't have a © or (P) doesn't mean that it's fair game and in the public domain. Never assume that something is in the public domain.

  What the hell is (P)?
  The sound recording copyright symbol is represented by the letter "P" enclosed in a circle. The copyright notice of sound recordings should include the three following elements: the sound recording copyright symbol, the year of first publication of the sound recording, and the name of the owner of copyright in the sound recording, or an abbreviation by which the name can be recognized. A generally known alternative designation of the owner may also be used (artist alias, performing name, etc). If the producer of the sound recording is named on the media labels or containers, and if no other name appears in conjunction with the notice, the producer's name shall be considered a part of the notice. A great primer on music publishing is available from Berklee in PDF here.

  How long do copyrights last?
  Do you know who Jessica Hill is? Well, she's probably dead now but when she lived she probably had a lot of loot. Why? She owned the copyright to "Happy Birthday". The song was copyrighted in 1935. Under the laws in effect at the time, the copyright would have expired after one 28-year term and a renewal of similar length, falling into public domain by 1991. However, the Copyright Act of 1976 extended the term of copyright protection to 75 years from date of publication, and the Copyright Term Extension Act of 1998 added another 20 years, so under current law the copyright protection of "Happy Birthday" will remain intact until at least 2030.

  The Copyright Term Extension Act of 1998: The Sonny Bono Copyright Term Extension Act (a.k.a. the Mickey Mouse Protection Act) extended copyright terms in the United States by 20 years. In 1998, Mickey Mouse was on the verge of losing copyright protection and falling into the public domain, so Congress snapped into action to keep the falsetto rodent a valuable corporate property. Under the Copyright Act of 1976, copyright would endure for the life of the author plus 50 years. The Mickey Mouse Act extended these terms to life of the author plus 70 years or 95 years for a corporate-created work. The act also increased copyright terms for copyrighted works published prior to January 1, 1978, adding 20 more years. Under this act, no additional works made in 1923 or afterwards that were still copyrighted in 1998 will enter the public domain until 2019. Also, works created before January 1, 1978 but not published or registered for copyright until recently remain protected until 2047. Check out Wikipedia's article on the Act and Cornell's Copyright Protection Chart.

  I always laugh when I see films with people singing "For He's A Jolly Good Fellow" in lieu of "Happy Birthday". (See The Godfather II, for example.) It usually means that they decided not to fork over the money. Warner Chappell, the largest music publisher in the world, purchased the copyright in 1998 for a reported sale price of somewhere between $15 - $25 million. The company then became Summy-Birchard Music, now a part of the giant Time Warner conglomerate. According to reports, "Happy Birthday to You" generates $2 million in royalties annually. The copyright term is set to expire in 2030, which I presume will be the same year the The Copyright Term Extension Act of 2030 is enacted by Congress. Check out this ridiculous farce from "a grassroots project run by citizens who are outraged by rampant copyright infringement in today's society."

  Okay then, Mozart has been dead enough time for his copyright to run out, can I legally sample recordings of classical music?
  No. Though Mozart and many other dead composers' compositions are in the public domain, the copyrights to the "sound recordings" of those compositions probably still belong to the record label, conductor, or symphony that played it. So, feel free to make like Wendy Carlos and play Bach on the Moog you just got from Ebay. You can rest assured that you'll have a sound recording copyright to the recording you make of it. But you can't sample a Wendy Carlos recording. (And, moreover, you can't sample Walter Carlos either.)

  Well, if I did sample some music, how can I avoid getting caught?
  If you have not already done so, please make sure to read our disclaimer before proceeding. First, let's review the difference about tone sampling and phrase sampling. When you sample just a tone (ex. a single note from a violin), you violate the copyright holder's "sound recording" right. When you sample a phrase (ex. a lick, theme, or any distinct series of notes), you are most likely violating the copyright holder's "composition rights" in addition. Though I really cannot advise you how to break the law, here's the sitch:

  You think about purchasing Peter Siedlaczek's Advanced Orchestra series (by Best Service) for the trusty Akai. The string sounds are very good, if not some of the best you have ever heard on commercial sample CDs. But $200 a CD?! So you sample notes and phrases from one of your Pop-pop's Bach Brandenburg Concerto albums - a clear case of sound recording infringement. In the mix, you realize, it is almost impossible to differentiate between the two.

  To prove copying, whoever sues you has to show access and similarity.

  Access must be more than a bare possibility and may not be inferred through speculation or conjecture. Was the work broadcast or released in a place you could have accessed versus held secure in a steel safe? Access can usually established as a matter of law if the work in question was a hit.

  Once access is established, the next questions is whether there is similarity -- "so similar that an ordinary listener to music would believe that there was a strong possibility that one song, or at least an important part of it, was copied from the other." (The Musician's Business and Legal Guide, pg. 77.)

  An expert witness can also testify about striking similarity, i.e. that the similarity is so compelling that access can be inferred.

  This test applies to all copyrightable work and not just music. One of the best known cases is ABKCO Music, Inc. v. Harrisongs Music, Ltd. George Harrison was sued by owner of the copyright to The Chiffon's song, "He's So Fine". The court found that George Harrison's "My Sweet Lord" was substantially similar enough to "He's So Fine" to infringe. The case opened up a whole can of worms including the idea of "subconcious plagerism". Keep in mind that the chord change that comes so naturally to your composition might very well be from some song in the recesses of your memory.

  Sampling, on the other hand, is infringement at its essence. The party suing you only has to prove that what you sampled is his. As in any court case, you have to prove that facts upon which your legal thoery rests by introducing evidence. The party suing you will have to prove through evidence that it is more likely than not that the sample you used was from his work. The burden of proof is not "beyond a reasonable doubt" as it is in criminal cases. In civil cases, the burden is "by a preponderance of the evidence", i.e. one side of the scale dips slightly more than the other.

  Returning to the scenario above, it is very difficult to prove that the string recording you sampled was from a specific recording, performance, or even orchestra. When you layer the string sound or melodic phrase you sampled with the rest of your composition, modulate, add effects, or what have you, it will be nearly impossible for the infringed orchestra to prove you indeed sampled their work. Granted, with strings you're not going to change much but there are thousands of recordings of orchestras playing an E flat. It will be very difficult for anyone to prove that it is more likely than not that your sample came from their recording.

  If you remember one concept from this entire website, remember the Samplinglaw.com rule: How unique the sample is directly effects the likelihood of betraying its origin. As you know, unique samples will be identified if they're not significantly altered or buried. And this is how most samplists avoid getting caught. If you're obvious, you increase the likelihood of exposing yourself to a lawsuit.

  I hear a lot of music with recognizable, unlicensed samples. How do those guys get away with it?
  There are several ways besides the one mentioned above people get away with it. First, and most likely with established samplists, is that behind the scenes, the sample was cleared -- meaning that the samplist obtained the legal right to use the sample from the administrator of the composition and sound recording copyrights. (See more in our licensing section.) Another theory is that the infringed artist never finds out that he was sampled. A lot of the samples I hear on Ninjatune stuff, for example, is from old jazz recordings. I doubt a lot of those old jazz artists are buying Amon Tobin albums. Another reason may be apathy or futility. Some artists, upon finding out they've been sampled, may not want to take the time and energy to sue a samplist (or his label). Moreover, if the samplist is broke (like most of us are), there's no real financial incentive to commence what could be an expensive legal process. Furthermore, it isn't ridiculous to think that an artist might be flattered by someone sampling their work. If immitation is the sincerest form of flattery, sampling is one step beyond. Sometimes the use of a sample will inspire a new generation to take interest in the work of someone they may have never discovered or taken an interest in. Public Enemy revitalized James Brown's career in the late 80's and the GOS wound up suing them for it. If you sample a famous artist, you're probably not doing much for their career, in their opinion. If you sample a nobody, you may be helping them somehow. Then again, if you sample a nobody (or a fallen star) who is bankrupt, you may find yourself in court. (If anyone can tell us who sued Fatboy Slim for sampling him in the song "Right Here, Right Now", you win a prize. Hint: it's the string part that was sampled.)

  What about all those songs with samples from movies and TV shows?
  Copying someone else's work, even if transmedium, is still infringement. You could get sued for sampling dialogue. However, I could not find one case in any single court of America that dealt with sampling film or TV dialogue in music. That doesn't mean that nobody has ever gotten sued for it. It just means that it never made it into a published court decision. As of now, it's illegal. You may attempt to defend yourself under the Fair Use de minimis use exception (explained in the Fair Use section), but courts have never decided the issue. As Negativland has propounded, "fragmentary", transcontextual use of media should be okay under Fair Use exception. I agree, but there is no legal authority to support it.

  Don't I have a Constitutionally-protected First Amendment right to sample?
  Nope. Courts don't think so. In a court case where Biz Markie was sued for sampling Gilbert O'Sullivan on the track, "Alone Again", the court began its decision by writing, "Thou shalt not steal." You can guess who won and lost.

  The problem with modern copyright law and sampling cases is that there have only been a few cases decided by the courts. Most are settled out of court and we never hear about the terms. Our legal system is based on the judiciary interpreting law. Judges cannot liberalize copyright law if they never hear these cases. The rules have not been fully sculpted; the boundaries are subjectively amorphous, and, by default, we are just left with the caveat: all sampling is, per se, illegal.

  The few cases that have been litigated in court have conflicting results. On one hand is the aforementioned 1991, Biz Markie case. He admitted to sampling, the court never considered a fair use defense, and he lost. On the other hand is the 1994, Supreme Court decision that said it was okay for 2 Live Crew to sample Roy Orbison's "Pretty Woman" because it was a parody, an exception under the Fair Use Doctrine. So what are we allowed to do? We can sample something as long as we're making fun of it? The problem is, it is up to a court to decide what can be fair use and often times, they're not so sure themselves. For example, the 2 Live Crew Court said that what's being sampled has to be the target of the parody. So, if you decide to make like Negativland and sample the band U2, for example, U2 should be the target of your parody, and not Brian Eno, for example. At the same time, the Court said there is no reason to require parody to state the obvious or even the reasonably perceived. So does that mean we can sample something, say that it's a parody, and that the parody is about an element of the song that is not reasonably perceived? Isn't parody a subjective thing that artists should be able to dish out according to their own frequencies of subtly? Well, you and I probably think so, but there's no answer because the issue has not been litigated enough in the courts to shape the law.

  What's Fair Use?
  Fair Use is our only hope as samplists. Fair Use is the one "loophole" samplists might be able to capitalize on. The only problem is, the issue hasn't been litigated in courts enough to really define the boundries. Read more here.

  Okay, now I'm totally frigtened and want to find out how I can go about licensing my samples?
  If you don't have an attorney, and you probably don't, then you should contact a Sample Clearance Company. They will find out who owns the publishing and copyrights to the work(s) you want to sample and then find out how much you'll have to shell out to sample the recording. Or, you can contact the artist or label directly to inquire if they license and for how much. (Usually a fixed fee ranging from $1000 - $3000, or royalties from your sales.) Keep in mind, however, that once you make overtures to license, you blow your cover. Nonetheless, licensing is the best way to assure that your sample is "cleared", i.e. legal. The licensing directory link below will provide a list of sample clearance houses and publishers to contact for info.

  What about my ill mix tapes that I sell at the barber shop?
  Most mix tapes, of course, are banned by copyright. We all know that there are at least two kinds of DJs in the world. Category A are radio disc jockeys and people who play CDs at weddings and bar mitzvahs. Category B is anyone with two 1200s and something between them. The Recording Industry Association of America (RIAA) has been very vague about mix tapes, which I believe fall into Category B, what I like to call, transformative compilation. The RIAA maintains the following:

  "DJs are not exempt from copyright laws. When radio and nightclub disc jockeys compile a CD or cassette of tracks from a number of unrelated albums to use in their work, each song must be authorized -- even if the CD is made by a legitimate CD manufacturer... The law is simple: Duplicating copyrighted sound recordings for professional disc jockey purposes without the authorization of the sound recording copyright owner is a violation of federal and/or state copyright law. This includes copying all or some of a sound recording to analog or digital tape, CD-R, mini-disc or a computer disk/hard drive. Violators could be civilly liable for statutory damages of up to $100,000 per infringed sound recording, in addition to costs and the copyright owner’s attorney fees. Criminal liabilities include up to five years imprisonment and/or a fine of up to $250,000... The RIAA’s continuing enforcement efforts focus on the manufacture and distribution of illegal compilations throughout the DJ community, including businesses that allege to be authorized but are not. The RIAA also addresses flagrant copyright infringement by DJs who create and manufacture multi-disk compilations of top hits without obtaining appropriate licenses from the copyright holders." See: RIAA Obtains Quarter Million Dollar Settlement For Illegal DJ Compilation.

  After reading this, one would assume that they're targeting people who manufacture "Top Hits" CDs, what's "hot" that week, "That's What I Call Crappy Music Vol. 48" and so on. But with the threat of five years in jail and a fine of up to $250,000, how badly do you want to find out? The simple fact is, however, you can't get blood from a stone. Your average neighborhood mix tape DJ isn't making a ton of money from it and the dent in record sales probably would not make a lawsuit worthwhile. Also, I believe it is arguable that since most rap records are made with acapella tracks, there is an implicit authorization to create a derivative work with another beat or musical track. Otherwise, what is the purpose of an acapella track?

  
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