Sample Clearance (The Real Reason Robin Thicke lost)

If you have been reading or watching tv in the last 30 days, then you have heard about Robin Thicke losing their multi-million dollar “Blurred Lines” lawsuit $7.3 million dollars was awarded to the Marvin Gaye estate and here is why “SAMPLE CLEARANCE.” Thicke, Williams and T.I. said in a joint statement “‘Blurred Lines’ was created from the heart and minds of Pharrell, Robin and T.I. and not taken from anyone or anywhere else. We are reviewing the decision, considering our options and you will hear more from us soon about this matter.” Sorry guys you just got caught with your hands in the cookie jar, any music producer knows about the sample clearance laws if you’re not familiar here is a nice description thanks to www.nolo.com.

If you use samples in your commercially released music, you should get legal permission. The process of getting permission from the owners of the sampled music is referred to as “sample clearance.” Failure to get the proper permission could lead to serious consequences: lawsuits or the inability to distribute your music to the public.

When Sample Clearance Is Required

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.
  • You are using the sample in live shows. This is because, usually, you are not making copies and the owner of the venue pays the blanket license fees to performing rights organizations such as Broadcast Music Incorporated (BMI) or American Society of Composers, Authors, and Publishers (ASCAP).
  • You plan to distribute copies to the public but meet one of the following: (1) an average listener would not notice the similarities between your end product and the sample, or (2) your use of the sample falls under the “fair use” doctrine. For more information on these, see “Defending a Lack of Sample Clearance,” below.

Operating Without Sample Clearance

Many artists releasing their own recordings can’t obtain clearances — either because they can’t get the music publisher to respond to their phone calls or because they can’t afford the fees.

What is the risk? Using a sample without clearance is always risky.  However, as a practical matter, if you only sell recordings at shows and don’t make more than one thousand copies, your risk is reduced. The owner of the source recording will be unlikely to learn of your samples. However, if your recording becomes popular at clubs or on the radio, or if a major label wants to pick it up, you’ll have to deal with sample clearance.

Reducing the risks. If you use an uncleared sample, you can lower your risks by:

  • making it unrecognizable
  • not using the sample as the groove or hook
  • burying it in the mix, and
  • not using the title of the source music in the title of your song.

Defending a Lack of Sample Clearance

If you decide to use samples without clearance, you might be in the clear in certain situations. Under the copyright law, you don’t have to obtain sample clearance if:

Your Sample Use is Not Infringing

If you alter a sample so that an average listener cannot hear any substantial similarities between your work and the sample, there’s no violation of the law.

Your Use is a Fair Use

What is fair use? Fair use is the right to copy a portion of a copyrighted work without permission because your use is for a limited purpose, such as for educational use in a classroom or to comment upon, criticize, or parody the work being sampled.

Factors in determining fair use. Generally, when reviewing fair use questions, courts look for three things:

  • You did not take a substantial amount of the original work.
  • You transformed the material in some way.
  • You did not cause significant financial harm to the copyright owner.

Don’t believe the widespread myth that “less than two seconds is fair use.” It’s not true. Also, some courts apply this fair use rule only to the musical composition copyright, not the sound recording copyright. For example, one judge ruled that any musical sampling violated the sound recording copyright.

You can use the above arguments in order to defend yourself against a lawsuit for sampling without permission. The problem: You won’t know for sure which way the judge will rule. And, most likely you’ll have to hire an attorney to represent you in court

When Possible, Seek Permission

You’ll be on safer legal ground if you seek permission, especially if you have a record contract that puts the burden of sample clearance on your shoulders. Such contracts usually contain an indemnity clause — which means that if you and the record company are sued, you must pay the record company’s legal costs. Ouch!

Note that when you sample music from a pop recording, you need two clearances:

  • one from the copyright owner of the song, who is usually a music publisher, and
  • one from the copyright owner of the master tapes, which is usually a record company.

To learn how to get the proper sample clearance, see How to Obtain Sample Clearance.

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