A music sample is defined as a portion of music from a certain musical work which is used as part of a new one. Music samples are commonly used by musicians of a variety of genres. Samples may include melodies, rhythms, or sounds. They may sometimes be repitched, sped up, slowed down, layered, or equalized for use in the new music.

Since the musical works from which a sample originates are usually protected by copyright, there are specific copyright laws which address the legality of the use of samples. Failure to abide by these copyright laws violates the rights of the performer of the original music. Such an infringement may also cause the violator to be prohibited from distributing the music containing one or more samples.

Copyright Laws and Sample Clearance

Many of the copyright laws which pertain to the use of and rights over music samples involve sample clearance. Sample clearance is the process of obtaining permission to use the sample from the owners of the copyrighted music. According to most copyright laws, a music sample may only be used following clearance from the copyright owner of the original copyrighted music (usually the music publisher) as well as the copyright owner of the master recording (usually the recording company).

However, it should be noted that not every use of a music sample requires sample clearance under existing copyright laws. Music samples which already adhere to the principles of fair use do not violate copyright laws. Additionally, sample clearance is not required if the sample has been altered to such a degree that it no longer resembles or infringes on the original work.

Music Samples and Fair Use

Music samples which adhere to the principles of fair use (the legal concept which permits the use of copyrighted material in certain situations) may be used according to copyright regulations. When intellectual property courts attempt to determine fair use with regard to music samples, they usually consider three factors. Fair use pertaining to music samples typically involves the duration of the sample used, the extent to which the source material was altered, and the extent of financial harm suffered by the copyright owner, if any.

Music samples which do not represent a substantial portion of the original work are deemed to abide by fair use principles. The alteration of the source material can also cause a music sample to receive legal permission. This can be done by adding or removing certain sounds or altering the pitch or tempo of the original work. Finally, if it can be deemed that the copyright owner did not experience any financial harm, the use of the copyright owner’s music as a sample will generally be regarded as fair use.

Sound Recording and Musical Composition Copyrights in the Context of Samples

All copyrights related to music, including music to be used in samples, involve two elements: sound recordings and musical compositions. Even though both elements are used in the same musical work, copyright laws regard them as separate entities. Therefore, it is possible for a sample to infringe upon a sound recording copyright but not the related musical composition copyright or vice versa.

In the context of music samples, this means that it is possible for the copyright owner’s rights to be violated when protected lyrics or music alone are used if proper sample clearance has not been obtained. This can be the case even if some, but not all, of the elements of the original musical work are used. Since a musical work which includes samples is classified as a derivative work, all copyright owners, be they the same person or different people, must provide sample clearance unless the use of the sample is deemed to be fair use.

Sample Clearance and Independent Labels

It can sometimes be difficult for small independent recording labels to obtain sample clearance and thus abide by copyright laws. To receive sample clearance, a musician linked to a small independent label often has to pay a large sum of money to the copyright owner. A percentage of the profits from the music containing the sample must also go to the copyright owner.

In order to avoid this potential problem, small independent label owners and associated musicians can consider providing the copyright owner with an advance recording. This recording will show the extent to which the sampled music will be used. Those involved with the label may also choose to directly contact the copyright owner regarding sample clearance to simplify the process.

This article is brought to you by Exy Intellectual Property Malaysia and Singapore.