When is it legal to sample music?

April 21, 2017

Dear Cecil:

After the death of the Beastie Boys’ Adam Yauch, I read an article about how their album Paul's Boutique could never be made today because of copyright laws governing music sampling. Is this true? What is the current legal state of sampling?

Cecil replies:

Ask any copyright attorney and she’ll tell you: unlicensed sampling, no matter how minimal, undetectable, or artistic in nature, is at best a seriously risky move. Many hip-hop albums now considered classics, including 1989’s Paul’s Boutique, were constructed from innumerable sampled scraps of other records, and the cost of securing the rights to every last snippet would be exorbitant. U.S. copyright law, one might argue, protects artists from moochers out to piggyback on their success. Or you might say it imposes an insurmountable financial burden on certain kinds of expression, shutting down a major avenue of creative activity.

The laws on the books, though, haven’t changed since before the days the Sugar Hill Gang was cutting the first rap records. To legally sample part of a recording — i.e., digitally re-record it and use it as a component in a new piece of music — you need the permission of two sets of copyright owners: the person — or, more likely, the label — that owns the rights to the recording itself, called the mechanical rights; and the owner of the rights to the underlying composition, or publishing rights, often but not always the songwriters. So what did change? Once sampling got cheaper, easier, and more widespread, there got to be real money in suing the folks who did it without paying up.

One distinctive trick of early rap DJs was to punctuate a song’s beat with excerpts from vinyl LPs played on a turntable. By the early 80s, high-end technology had made it possible to do this digitally instead — i.e., via sampling. Within a few years, newly affordable sampling gear set off a flurry of ingenuity in the rap world: artists including Public Enemy, De La Soul, and the Beastie Boys assembled samples by the dozens into brand-new compositions that previously would have required hours of tedious tape-splicing.

Meanwhile, though, other rap record-makers took to simply swiping the most recognizable part of a familiar pop song — the “hook” — to score a hit of their own. The wild success of such singles as MC Hammer’s “U Can’t Touch This” and Vanilla Ice’s “Ice Ice Baby,” both from 1990, brought about the earliest sampling suits, which typically settled out of court.

Despite this increased legal activity, hip-hop record production was still relatively unpoliced in 1991 when a comical sad-sack rapper named Biz Markie sampled the piano part from a maudlin ’70s hit by Gilbert O’ Sullivan, “Alone Again (Naturally),” for use in his own song “Alone Again.” This might have escaped notice, except that the chorus of the new song consisted of Biz singing (after a fashion) the refrain from the old one. When O’Sullivan protested, a federal court in Manhattan decided that Biz had infringed copyright, barred further sales of his record, awarded Gil $250,000 in damages, and even referred the matter to a U.S. attorney for criminal prosecution (though nothing came of this).

The response was immediate: extensive sampling went out of fashion. But some producers were convinced that unlicensed sample use might still be feasible. What if you folded a fragment of sampled music into a larger production so trickily that no one could identify it? A federal appeals court in Cincinnati cleared that question up in 2005 when it ruled that the rap group N.W.A. had infringed copyright even though the sample in question had been doctored beyond recognition. "Get a license or do not sample,” the court declared flatly, adding, “We do not see this as stifling creativity in any significant way." Well, then.

For years, anyone with any money abided by this diktat. Last summer, though, another federal court found that using an unlicensed but very, very brief sample did not infringe copyright. The fallout from these clashing opinions hasn’t settled yet — eventually the Supreme Court may have to step in. (There does exist something called the “fair use” exception, permitting you to legally excerpt copyrighted material for purposes like criticism or parody, but it's hard to claim it for a commercial recording.)

Negotiating sample rights has become big business. Whereas early on the norm was a buyout — a one-time payment that allowed free-and-clear usage — now you’re more likely to have to pay an ongoing percentage of royalties; once your record reaches a certain sales threshold, the percentage goes up.

Could this be simplified? Well, Congress could pass a compulsory licensing statute for samples. Rather than having to secure the approval of copyright owners, an artist who wanted to use a sample would just pay a set rate. There’s precedent for this: if I’ve written a song that you want to record, I can’t stop you as long as you comply with certain legal requirements, which include paying a predetermined royalty. But given the power that big-money copyright holders wield, it’s hard to imagine much congressional activity on the sampling-law-reform front. We may be no more likely to see another Paul’s Boutique than we are to see a new Gothic cathedral.

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