Thinking out loud: how to legally sample famous songs for free

March 4, 2010 | 31 Comments


Photo courtesy of 3 Sons Productions

March 4th, 2010 – So lately, I’ve been thinking a lot about sampling. Legally it’s pretty straightforward, if you take a piece of someone else’s recording then you have to secure rights to do that. Whether or not you agree with the way the legal system is set up, is not what I want to discuss here.

I’ve discussed my take on sampling before and while my feelings on the subject have evolved slightly, I still largely feel the same. To make sure everyone’s up to speed on copyrights, I’ll go over them in one sentence (it’s definitely not that simple but it’ll do for what I’m trying to explain). There are two basic copyrights when we’re talking about music, the copyright to the composition itself, and the copyright to the actual recording.

What’s gotten people into trouble historically, is the copyright of the recording. Producers are taking chunks of a recording that’s copyrighted and using it in their own compositions. I’m not knocking it, I do it too, but not for stuff that I’m releasing, and if I do plan on releasing it, I use royalty free loop libraries.

However, what would happen if a producer found a sample he liked, recorded a new version from scratch, then sliced it up. I’m not talking about sampling a recognizable instrumental or vocal loop for the purposes of evoking that original song, but slicing up a sample into building block-sized pieces and reconstructing it into something completely different.

For example, say there’s a really nice funk horn loop that a producer slices out of a track. He slices it up and starts playing it out in his MPC and realizes that he could have a really great track. So to get around the master recording copyright, he calls in some of his friends who play horns and records them playing the exact same part. Now he can take their performance and chop it up just like the original sample, but without incurring the wrath of record label lawyers.

Would he also skirt the songwriting copyright? So imagine that horn sample he aped was the main melody of that song and therefore a recognizable part of the song’s copyright. However, since he’s basically sliced up the horns beyond recognition (and used his own freshly recorded version), he’s not using that melody anymore, he’s made his own. At what level, however does it become a completely new composition and not part of the original song? I don’t know the answer to that, and perhaps any of the more law enlightened out there might help with some answers here.

Some producers use samples to evoke the same feeling of the original, but remixed. Others use samples to set off inspiration and as source material to work with. The former will clearly run foul of the copyrights, but will the latter be free of problems if using re-recording the source material? I’m not sure, but it’s something I thought of, and I believe that the law will allow that.

What do you think? Can anyone with a better knowledge of copyright law than I jump in here?

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Comments

  1. DJSD says: March 5, 2010

    Well its a grey area obviously. If you take the individual notes and mash them up in a totally different order, obviously its no longer the original music piece .. and so the song writing copyright would not apply. Now chances are you will not have them all in a totally different order and here is where things become grey. In music there are of course standard patterns (chords etc.) that even if “copied” can hardly be claimed as originating from the given song (the standing of the shoulders of giants principle).

    So we sort of need to find a definition of what constitudes a melody that goes beyond just a single chord (progression). Now is skipping or replacing less than half of the notes still essentially the same melody? What if you just shift things around the scales? What if you do a combination of the two? I think pretty soon you just have to be honest to yourself and hope to not get sued and if you do hope that the judge shares your perception. But the fact of the matter is that the current copyright (and patent) system is anti creativity. And if you want to be creative, you will open yourself to attacks from people who’s creativity is limited to abusing the legal system.

  2. AJRussell says: March 5, 2010

    Copying another’s work instead of sampling it is called ‘interpolation’. You see it often in the liner notes of bigger budget hip-hop records: “Contains an interpolation of…”. Dr Dre has a session band who he gets to cover P-funk era tunes, which he samples and loops or adds elements to or chops up or whatever. Kanye has done the same thing on a few tunes. Those Curtis Mayfield horns in “Touch the Sky” weren’t the ones played by Curtis Mayfield’s band.

    There’s two kinds of copyrights at play: the mechanical rights, which is the copyright of the recording, usually owned by the record label; and the performance rights, the rights over the song itself, the music and lyrics, usually owned by the songwriter, composer and/or original performer. When you interpolate a song, you owe performance rights but not mechanical rights.

    Who knows what the legality would be if you then altered that interpolation. There are only so many notes, and so many orders of notes. At what point does it stop being the original song and start being your own work? On the other hand, if you’re changing it that drastically, is anyone connected to the original performer ever going to notice? Say you want to interpolate a horn section from a dusty old funk record. You’re never going to be able to match the conditions in the studio, or the microphones, horns and other equipment used, or the exact intonation of the original players. And you’re rearranging the notes to form something completely new. Is anyone going to recognise the original once you’re done?

    On yet another hand, if you’re going to go to all that trouble, don’t you owe it to the original performer to credit them for at least providing you the inspiration? Sean, this blog is CC licensed and one of the conditions is Attribution. You obviously believe that people should be credited for their work. If I was going to re-blog this, I’d wouldn’t just copy your blog post, or even summarise it, I’d post something like “Sean Yee’s excellent Key of Grey blog has a post on the topic of interpolation and skirting sampling law.” Don’t we have the same moral obligation to credit the performers who inspire us?

  3. DJSD says: March 5, 2010

    Sure .. by all means list everything that inspired you. It could even be that in an early stage of the song you would have to pay royalties and at some point you have moved so far from the original. Essentially the other song then served as a template, but this would not make the copyright apply once you have reached this far away state.

    Anyways when writing the credits for a song you could also say something like “song foobar inspired me to explore horns for this song”.

  4. Sean says: March 5, 2010

    Great points guys. I didn’t know about interpolation…I’ll have to check it out and see what exactly qualifies. I should state also, that I was pondering the legal issues only, not the ethical ones. I definitely feel that the source deserves due credit, no matter if it’s re-recorded and chopped up.

  5. vinayk says: March 6, 2010

    Just so I know – hypothetically if I was to record a cover of a famous song – for arguments sake – “gravity” by John Mayer. And put it on a commercisl album, recording every track from scratch. Do I need to pay royalties to John Mayer? The song may be close but it will never be 100% the same.

  6. DJSD says: March 6, 2010

    yes .. for the reproduction of the song notes/text ..

  7. Sean says: March 6, 2010

    @Vinayk: You will still need to pay a license from the performing rights body that John Mayer belongs to (which actually isn’t that much). You will then need to pay the songwriter fee for every unit you sell.

    You know when you go to somewhere like Walmart and they have those CD’s for sale which are compiled of famous songs, that have been re-recorded by some no-name artist? That’s what the people who are releasing that CD are doing. They still have to pay for the songwriting fees and the licensing of each song, but they get to keep the rest.

  8. vinayk says: March 6, 2010

    Cool makes sense. What happens to old classics like say amazing grace – or Classical pieces where the writer is dead and buried – do you pay to a trust or Estate or something?

    And a related question – I have a new Aussie hip hop album (by horrorshow – check them out!) – the first track starts out with a well known grandmaster flash line “don’t push me coz I’m close to the edge… I’m trying not to lose my head” – sung by horrorshow. Would something like that incur royalties?

    In one way it’s great I have next to no musical talent – anything I record will be free for Internet download!

  9. AJRussell says: March 6, 2010

    @Vinayk

    Normally songwriter copyright runs out 70 years after the composer’s death. Recording copyright runs out 50 years after the recording was made or released. With classical recordings, the copyright over the music has long since expired, but a label will still own the copyright of the recording if you sample something, and you’re obliged to pay royalties then. You’re therefore free to sequence a Beethoven symphony into Vienna or some other sample library and sample that without paying copyright. Bear in mind that if a label sues you for sampling a Beethoven symphony, they have to prove “beyond reasonable doubt” that it was THEIR recording of Beethoven you sampled, and not some other recording. This is phenomenally difficult for them to do in court, so effectively, you can get away with it.

    The 50 year thing is interesting, because that means that plenty of rock’n’roll era material is now copyright free. Cliff Richard is fighting tooth and nail at the moment to protect the copyright of his early recordings. There aren’t many artists with a career spanning 50 years, but within the next 5 years you will see names like Elvis (his estate) fighting the same fight, then in another few years, the Beatles.

    Amazing Grace was written by a guy who died in 1807 so it’s definitely public domain by now. Traditional songs, where the composer is unknown, aren’t eligible for copyright, so you’re free to cover them, but the rule about sampling others’ recordings still exists.

    The Grandmaster Flash thing… yeah, technically you’d be obliged to pay royalties on that, if Flash (or the rapper) could prove that he was the first to write that line. Again, very hard for him to do in court. And if you’re not making a profit from reusing it, the damages he can claim is precisely $0. AND Flash suing a young hip-hop artist for sampling would seem a little hypocritical, seeing as he basically invented sampling. The publicity from that wouldn’t do him any favours. So in short, I’m not a copyright lawyer, but you’d get away with reusing a Grandmaster Flash line.

  10. vinayk says: March 7, 2010

    Thanks to everyone for those answers. Makes all of this make a lot more sense, and I can see where the original question way back in the post came from!

  11. garrett says: May 28, 2010

    I have created a song that was influenced by an artist that is quite aggressive about his music rights.
    Let me be clear about “influenced”

    The lyrics are completely different, except the concept of what it is about is similar.
    The name – different
    The music – Chord progressions are influenced, but not exact, and completely different types of instruments (electronic versus rock). The song structure is also not the same.

    So, basically, when someone listens to this song, they will realize what it was influenced from, but also realize that this is a different song.

    Do I need to worry about mechanical or performance rights?

  12. Sean says: May 29, 2010

    @Garrett: That’s a very difficult question to answer. In court cases, even if the song is more similar than what you’ve outlined, music experts are called in to give their opinion. The line between influence and what another artist may consider plagiarism is very murky and there are no clearly defined rules. Even if there were, it’s very difficult to enforce them.

    If I were you, I wouldn’t worry about it unless I thought the song was going to be a huge hit. However, I’m not a lawyer so if you think there’s a chance you might encounter problems, you might want to consult an intellectual property, or an entertainment lawyer.

  13. Jesse says: July 3, 2010

    What about sampling or scratching over movie quotes or battle samples like run DMC “ahhh yeahhh”? if i produce something like that am i breaking the copyright laws?

  14. AJRussell says: July 3, 2010

    Yes, you’re infringing, but it’s up to the copyright holder to claim copyright. Given that Run DMC haven’t sued anyone else before you for royalties, you’re probably alright.

  15. Jesse says: July 3, 2010

    damn, kinda wish i would have read all this before I bought an mpc. 😛 I guess I’ll just make all my shit from scratch. it’s a shame music has turned into such a fight for money instead of a passion.

  16. AJRussell says: July 3, 2010

    Go ahead and sample, man. No one will care until you get big.

  17. Jesse says: July 3, 2010

    thanks man for the support.

    What happens when you get big though and someone stomps your world when they sue the shit out of you and make you pay for the record labels court and attorneys fees. 😡

    I don’t think I’ll be doing it to get big anyways, but I would like to make some beats to scratch over with my tables and throw it on a cd or a website.

  18. AJRussell says: July 3, 2010

    They’d sue your record label, rather than you yourself. The label might just chose to take it out on you, but if you’re really that big, they’d more likely choose not to piss you off.

    No disrespect to what you’re making, but at our level, the copyright owners really aren’t going to care. If you are sued, they can only sue for damages, which is almost always just a percentage of what your label and you made from the track which uses the sample. Copyright law is big business, and copyright lawyers charge a fortune. The label suing you would have to be confident that they would make back the court costs from you, and you have to be raking in a lot of money for that to happen.

  19. Jesse says: July 3, 2010

    no disrespect taken man. thank you for clearing that for me. I guess you’re right

  20. kanye west says: February 25, 2011

    2things you need to do!
    1.slice your samples in small pieces and creat new melodies and rithmes.
    2.tweaking your samples then the sound will be complete different.
    If you do a good job it will be almost impossible to hear where the sample is from!

    If you liked the free information be kind and follow me on http://www.twitter.com/f8for2nite

    nothing less than love
    Greetings kanye!

  21. maks million says: February 1, 2012

    I realize it’s been a long time since this thread had any activity, but I wanted to thank you guys for not only clearing up facts for me, but also for helping lift pretty much any worry about retribution.

  22. Nick Beats says: December 11, 2012

    Extremely few original recordings can be sampled and used “for free”, in fact, I would go as far as to say impossible. The only sure-fire way of getting past the whole sample clearance thing is to use a replay company like Scorccio.com, they will remake the sample to the point where it sounds almost exactly the same. A cover version if you will, but the music sounds practically identical in every sound and note being played, so it’s just like the original track has been sampled. The cost to use a sample replacement service like Scorccio replays is far less than paying a crazy high sum that the original label will ask for.

  23. Lewis says: January 11, 2013

    So what if you sample a sample or interpolation?.. Like Grandmaster Flash and The Furious Five sampled “Genious Of Love” by The Tom Tom Club for “The Message, then Teddy Riley, Ice Cube, Puff Daddy, and Beats By The Pound all sampled “The Message” for “The Fix, Check Yourself, Can’t Nobody Hold Me Down, and Turn Me Up”.. Who gets credit and money for that?

  24. AJRussell says: January 11, 2013

    Three years and there’s still replies to this in my Inbox 🙂

    Ok, Puff Daddy’s “Can’t Hold Me Down,” has a whole bunch of credited writers, so the label obviously got the sample cleared. Let’s go through the list and follow the credits (source is Wikipedia):

    Sean “Puffy” Combs, [Puff Daddy himself]
    Steve Jordan, Carlos Broady, Nasheim Myrick, [All also received Producer credits on “Can’t Hold Me Down”]
    Mason Betha, [aka Ma$e, appears on the track]
    Greg Prestopino, Matthew Wilder, [co-writers of a Wilder track called “Break My Stride,” an interpolation of which is the chorus for “Can’t Hold Me Down”]
    Sylvia Robinson, [owner of Sugar Hill Records, which released “The Message.” Had a writing credit on the original.]
    Melvin Glover, [aka Melle Mel]
    Clifton Chase, [aka Jiggs, in-house arranger, Sugar Hill Records]
    Edward Fletcher [aka Duke Bootee, in-house producer, Sugar Hill Records]

    So in that case, where both an interpolation and a straight sample are featured, all of the original writers get a credit, meaning all of them get money as both a one-off payment and a percentage of royalties.

    “Genius of Love” was interpolated in “The Message” in a similar way to the interpolation in “Can’t Hold Me Down” – a rapper incorporates the lyrics and melody of the original into his own, altering them slightly. However the writers of “Genius of Love” never got a credit on “The Message.” So even though the interpolation is now well-known, back-payments don’t apply, because it was never originally cleared.

    Follow the credits 😉

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  26. Rob says: October 5, 2014

    Very useful and informative article, thank you!

  27. Mr Tim says: November 11, 2015

    Great topic! Here is how it works according to my interpretation of the law….

    For example:
    John has an electric guitar, a Stratocaster. He wrote a melody on his guitar in the Cm scale. The notation of the melody goes C, D#, F, G, F, D, D#, F, which contains a total of 8 notes played on every 1/8 of a bar in 120bpm. Then he recorded this melody at home, on a record with background music. He later wrote an entire album this took 6 months of hard work. He records his album and masters it himself. The album is now being sold by John at the flee market. The Album is not doing so well but John is proud over his album and is not. John pays taxes on his earnings.

    Shteve buys the CD from John at the flee market. He is also playing the guitar and is admiring Johns album. Shteve thinks that John is amazing at both playing and writing music. He becomes a true fan. His favorite part is the melody John wrote that goes: “C, D#, F, G, F, D, D#, F,”. Then Shteve realizes that he also has the ability to play these notes on his guitar too since all standard guitars can play all these notes in various octaves. He plays along to the record and is having the time of his life. The happiness Shteve is experiencing was provided by John’s album. Good guy, John! Shteve realizes that he too wants to write a melody and in fact, he thinks that he can make an even better one! WOW!! But… Shteve did not go to a music school, or had someone teach him how to write down musical notes.. He can’t write the music down… He doesn’t have expensive recording equipment… Shteve becomes sad and depressed. Later that day Shteve finds out about the sampler. Shteve goes to the store, buys this sampler thinking “There are only 12 notes available in the western world, all the notes I really need are already made and played somewhere else so I can just ‘re-hmm-sample’, borrow those and play them back the way I want on the sampler! YAY!”
    Shteve writes a melody which contain all the notes in Johns melody. The original melody “C, D#, F, G, F, D, D#, F,”. Shteve samples Johns melody re-plays the samples like this C, D#, D#, F, F, F, G, D. Shteve now wrote music even though he was poor, even though he could not afford music or art school. Shteve wrote and created a melody. A melody that he now legally owns. Shteve plays his melody on his guitar all the time. Good for you, Shteve!

    This example can now go in a number of directions. A: Shteve feels guilty that he did not play the melody himself with his own guitar but he most certainly CAN play it himself.. he also feel guilty since John spent so much time and money to put his album together. Shteve decides to sample himself playing his own melody. Shteve now owns the intellectual property of his own melody and the recording rights to his sample. John listens to Shteve’s melody and they recognize each others guitar playing in one another. Shteve thanks John for a great album and John is happy that he could make someone happy too.

    B: Shteve is releasing the melody that he wrote with Johns sampled guitar = Potential Lawsuit (Recording rights or Master tape ownership and could include intellectual property at the same time)

    C: Shteve is releasing his own rewritten melody with his own re-sampled guitar he himself played = Potential Lawsuit (John feels that the melody contains the EXACT same notes as the melody he wrote and gets angry at Shteve for allegedly taking his “sound”, or intellectual property. Shteve feels the opposite way, he did in fact re-rwite the musical piece. John and Shteve are both loosing fans to one another and this initiates a divide between the fans and the artists) – Someone is winning all or some of the rights. There WILL be a loser. Who will it be? Court decides.

    D: Shteve is releasing his own rewritten melody with his own re-sampled guitar he himself played = Potential Lawsuit (John feels that the melody contains the EXACT same notes as the melody he wrote and gets angry at Shteve for allegedly taking his “sound”, Shteve feels bad about this and apologizes) – Settlement outside of court.

    End of example.

    This can go in a number of ways. Personally I go by this “If you can think of it, they can sue”. Which translates in to this: Sampling a melody someone else plays, chopping it to pieces, re-write those pieces beyond recognition (I can not stress how very important this is to avoid intellectual copyright infringement) and then re-record that melody. It is now yours. How many songs do you actually know that follow this chord progression: Em, C, G, D. I can tell you that you at least know 50-100 songs that have this progression. Take a look on Youtube and you’ll know what I mean. They’re all different and beyond recognition for an average user. This is why a song can contain the same chords but not the same melody in many cases since the melody is the recognition.
    The writing of music – The original sample sampled from the original piece is an illegal sample but (and a big but). Rich Stim who is an attorney over at nolo.com writes “In general, sample clearance is required only if you plan to make copies of your music and distribute the copies to the public. Sample clearance is generally not required if: You are just using the sampled music at home.” So if you are only using the copyrighted sample at home you’re basically not required to clear the sample which is fine and you’re not in trouble. If you or the producer in the given example start chopping the sample up for fun and rearranges the sample into another melody then the producer in this case have simply rewritten the musical notation of the instrument and now owns the physical musical notation. In other words, the melody is now his own but he does not own the recording… To own the recording he simply replays/reprograms the melody he wrote and viola, he now is the legal copyright holder of it all assuming that the melody is beyond recognition from the general, average listener.

    Great topic and great discussion.

    Tim

  28. Norma says: November 29, 2015

    The ER theme song definitely sounds like The Brothers Johnson’s song Strawberry Letter 23 instrumental! Just sayin’

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  30. BURN-ADDiCT says: October 4, 2016

    This thread has been very helpful, thank you.

    Personally, I think it should be a humane business when it comes to copyright issues: Don’t do to others, something that you wouldn’t want done to you.

    What I’m trying to say is; put yourself in that person’s shoes, th ask yourself how it feels to have someone take a song that took you months to finish, to just wobble it up into something else and make money from it too.

    I’m not even that much of a professional yet at what I do (electronic music), but I’ve already had a few friends infringe my copyright… Most of them do it unknowingly, thinking that because they were with me when I first performed a piece, they automatically gain right to perform as their own too.

    To be honest… It’s not even about the money…… I just F’ing hate when my music is used in new projects without my express consent. What I’m saying is… Me giving you remix stems for my project does not necessarily mean that I’m okay with you releasing a remix of my song, instead, I would love to be notified of such… I could even give you 100% royalty shares of such arrangements if I like the song, or the way in which you handled the “notifying me” rule.

    Shortly: let the person know when you’re about to use their compositions… The fact that you tried everything you could to contact them, cab serve as a personal waiver of guilt.

    (NB: This is just my personal opinion and preference)

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