What will happen if you don't get copyright clearance for the samples you use in your tracks?

What will happen if you don't get copyright clearance for the sample you use in your tracks?

A question received from a Audio Masterclass visitor...

"I am a rapper with only my computer and FL Studio software. I'm going to launch my own record company, yes I do know that it won't be a walk in the park and I am very willing to go through thick and thin, one little thing that is worrying me is that I produce a lot of remixes of past songs and use parts of the songs at normal and fast pace tempo's. I have a fear of not going about things the right way and being sued for everything I've got by the owner's of the copyrights and what if it is a very old and scarce song and I do not have any info to whom the copyrights belong?

"If you do not reply personally at least send me links explaining exactly how do I go about doing things legally. Oh, and with different samples that I download from the net, do all these carry copyrights?"

OK, firstly I have to say that this is not legal advice I am about to give. For that you need a music industry lawyer.

You need to be aware that there is a copyright in a song, and also a separate copyright in the recording of that song. The two copyrights do not necessarily have the same owner.

To use a copyright work in any way requires a licence from the copyright owner. This varies according to the legal system of the state in which you live, however in general there are five 'restricted acts' covered by copyright...

• to copy the work
• to issue copies of the work to the public
• to perform, show or play the work in public
• to broadcast the work or include it in a cable program service
• to make an adaptation of the work or do any of the above in relation to an adaptation

So you can play (which is the equivalent of perform) a CD in private, but you may not without permission play it in public. As for copying however, you may not do this either for public or private use. (There are some very specific permissions granted by the Audio Home Recording Act in the USA).

So basically you cannot sample a copyright work. You are infringing the copyright in both the music and in the recording. To take a sample legally, you must have the copyright owner's permission, for which you will almost certainly have to pay.

Even if you do not know who the copyright owner is, you still need his or her permission. This in fact puts many works in a kind of limbo because the copyright owner simply cannot be traced. (Although they will soon surface if there's something worth sueing for!). It applies to samples from every source, including the Internet.

In the UK, you can seek permission from the MCPS (Mechanical Copyright Protection Society) who will put you in touch with the copyright owner and smooth the way through to clearance. In the US, you can probably find out the copyright owner from ASCAP, BMI or the Harry Fox agency, and then approach the owner.

If you infringe copyright you are liable to pay damages. Although copyright infringement has been upgraded to a felony (criminal) offense in recent years, I haven't heard of anyone getting sent to jail merely for sampling. Correct me if I'm wrong.

So the likely worst case scenario is that you release a record that contains an uncleared sample, and the copyright owner finds out. They could demand that you destroy all remaining copies; claim damages for copies already sold; perhaps even claim ownership of the entire copyright of the work, so that they make all the money out of it and you make none. These things have happened.

Of course the next question is how exactly did hip hop music ever get started in the face of all these restrictions?

Image: Public domain