My name is Pedro aka “P” and Kevin has asked me to drop a little bit of legal mumbo jumbo on the site in as plain English as possible. Hopefully, from time to time, I’ll post article on different subjects surrounding music and the law.
I’ve been visiting KevinNottingham.com almost daily for a good minute. It’s been a great source of all things hip-hop for me for a long time. Anyway, aside from my music interests, I am also an attorney. While I specialize in an area of the law having nothing to do with music or entertainment, the legal issues surrounding hip-hop and hip-hop music have always interested me. While in law school, I was a board member of the University of Florida Journal of Technology Law and Policy and wrote extensively on intellectual property rights, copyrights, trademarks, digital rights management, and other legal issues dealing with the music and entertainment industry. I am also a current member and former national representative for the Section of Science and Technology Law of the American Bar Association. I practice law in Miami, FL but I am temporarily away from home on military duty. Yeah, someone had to pay for all that school and in my case, it was the Army. I return home in August and hope to then contribute to the site on a regular basis.
As for my musical expertise, my itunes is 50,000 tracks deep — almost all hip-hop. I grew up in and around the projects so I lived the culture too. No suburb ears here. Mad Love to my man Kevin for giving me this forum to write on two of my favorite subjects: music and law. Good looks fam.
Hit the jump for your first leason in sampling legally…
Since there was so much debate on the last few posts regarding “sampling”, I figured I’d elaborate and give you the bare-bones way to sample while limiting your exposure to a lawsuit and detail some of the legal issues surrounding sampling.
Let’s pretend for a second that:
1. I am a producer or artist.
2. I hear a track I want to sample and turn into a beat or a song
3. I create my beat or song, but the original song is still recognizable and I am using the original hook or the original “ambient sounds” meaning my new beat has the “feel” of the old song. (Listen to any 9th wonder or Kanye beat, and then listen to the original sample, they basically just loop the hooks or a specific verse and add a baseline.). *
4. I, being a smart producer, and knowing that my “new” song shares many characteristics with a previously created song, need to clear the sample with the owner of the original track. ** Clearing is nothing more than getting a formal permission, usually in writing and called a license, from the original creator or current owner of the rights of the sampled song. *** The owner is usually a record company or artist. **** If I ask for permission and they grant it, I’m good (Sometimes, especially if you are a big artist, the owners of the original ask for payment in exchange for permission. Payment doesn’t necessarily mean money up front; that’s where lawyers come in to negotiate a deal). Once it’s cleared, I can distribute or do whatever I want as long as it is permitted under the new license agreement. If I don’t clear the sample, I run the risk of getting sued. That’s bad news for me. Also, if my song contains samples from more than one song, it usually doesn’t matter; I have to clear all of them. I’ve heard some J Dilla beats that sample more than 5 songs. He more than likely would have needed licenses from all the originals if he wanted his track to be lawsuit proof.
*If the new “beat” or song is not “creating a new work,” it is enhancing or modifying something already created. For example, if I copy the Mona Lisa and add a mustache, I have not created something new; I have just altered something already created by another artist. Therefore, that other artist sometimes wants his cut (or whoever owns the original Mona Lisa wants his cut). They sue, and a court then decides whether I created something new or infringed on the original artist or owner.
**Many producers say “well I’m not making money off this song I sampled, it’s on a free mix-tape therefore I can’t get sued.” WRONG. Just because you are not selling the specific song at issue, does not mean it is not being used for a commercial purpose. For example, if you perform the so-called “free” mix-tape song at a concert (which people presumably pay to attend) or if you use the mix-tape as a marketing tool (marketing is the ABSOLUTE purpose of mix-tapes, if not, no one would make and give out free stuff, trust me), this is usually enough to satisfy the court that the track is being used for “commercial purposes” and with some exceptions, the producer of the new song will likely lose in a lawsuit.
***Many artists i.e. Madlib are given access to their record company’s “crates”. Therefore Madlib is free to sample any song that his record company owns the rights to under his recording contract. While this is a cool deal if you can get it, most producers and artists don’t have access to massive archives of old-school jams like Madlib does.
****Owners of rights to original sampled songs watch closely and only sue when it makes sense to them financially. Therefore, someone might sample forever and never be sued even though he never cleared a thing with anyone. However, sometimes they sue because all they asked for was credit and the new producer was unwilling. This happened to our favorite dude Vanilla Ice in 1990 with Ice Ice Baby. He sampled the song “Under Pressure” by Queen and they sued him. His defense was that he added an “extra note” so it was no longer the same song. Needless to say he lost. I mean, he’s Vanilla Ice and he sucks, but you get the point.
The most famous case about infringement with sampling is Campbell v. Acuff Rose-Rose Music. I wrote extensively about this case in law school. The case went all the way to the US Supreme Court. Campbell is actually “Luke” from 2LiveCrew and the song at issue was “Pretty Woman.” Even though this case isn’t specifically about the act of “sampling” it started the debate and subsequent litigation and brought attention to hip-hop producers using sampling. Luke and the crew actually won their case.
I hope this helps. There are a lot of details and nuances that I left out for the purpose of keeping it simple and easy to understand. If you have questions or feel like this doesn’t answer everything, you are right, it definitely does not. That’s why there is so much controversy surrounding sampling– the law is literally being created with each new litigation.
It’s also important to note that every set of facts is different and if you want to know if what you are doing is legal or not, you should always consult with an attorney. What I wrote in this post is not legal advice, it is solely my opinion and should not be misinterpreted as anything other than that.
Related posts:
- 9th Wonder Discusses The Art of Sampling
- 9th Wonder: Beatmaking 101
- Cymarshall Law: Family [feat. One Be Lo]
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