Sample clearance question
mannybolone
Los Angeles, CA 15,025 Posts
Is there a set amount of time when someone can sue over sample clearance? For example, let's say Eric B and Rakim never cleared Bobby Byrd on "Paid in Full." Could Byrd still sue over that? Or is that any album that came out AFTER the Biz Markie/De La Soul lawsuits is open to legal enforcement but albums prior to that are not.
Comments
It has to be the latter
So many classics from before that are in print that wouldn't be worth pressing if all the samples were cleared... they'd probably lose money...
I've never heard of any limitations based on when the material (in question) was created in regards to suing for uncleared samples.
But were talking a civil court thang. Like tort.
Im going to get a danish.
I can't say whether or not the latter is true, but I can say with confidence that there is no magic number of seconds of a song you're allowed to sample and be exempt from copyright infringement suits. The fact that anybody thinks that's true is both laughable and scary. If you sample something without clearance and the person who owns the rights to it realizes it you are open to a lawsuit, I don't care if you sampled a 2-second drum fill off a James Brown record. There's a lot of misinformation out there regarding copyright, mostly on the part of people who are trying to be optimistic so they can either save money or not get sued. The whole myth of the "poor man's copyright" is another huge copyright myth a lot of people seem to believe.
Between this one and the "You don't have to clear samples if you manufacture fewer than X units" urban myth, it's kinda ill what people believe about copyrights.
They probably would. But I doubt the courts would care if it actually came down to the artist (who was sampled) suing over unpaid royalties.
I agree it doesn't make much sense, and the headache for an artist to sue Eric B & Rakim may not be justified by the dollar amount he would receive in the end, but I think it could be done. Sampling laws are set up to protect and benefit artists who are sampled so it would seem like it certainly should be something that's possible. To me anyway.
Oh, they are. A lot of drummers are paying rent from solos they did thirty years ago.
Not that I don't believe you but I seriously remember seeing quite a few discussions about this where a drum pattern is not considered copyrightable in the same way a melody is. You can enforce on MECHANICAL rights, i.e. if you sample straight off of a James Brown record, there's rights you have to pay on that, but if you sat down in the studio and rattled off the "Funky Drummer" break and looped that, then you don't have to clear that.
By "rattled off" do you mean re-created? As in telling your drummer to re-play the same pattern as Funky Drummer? If so, then yes, that's different, grooves on their own are not copywriteable. But as far as actually sampling a drum break, you definitely have to pay the drummer -- whether it's for mechanical rights or not, I don't know. But they would get some form of royalties.
Yeah, what I'm saying here is that you can't claim - under current copyright law - that a drum break/pattern is a composition. If you sample a break directly off a record, then there are mechanical/recording rights you'd have to clear. But if I hired a drummer to recreate "Synthetic Substitution" and sampled that, then, from what I understand, I wouldn't owe Melvin Bliss a penny.
It has to do with classical standards of defining what "music" is and in these cases, melody vs. rhythm is considered unique, and thus, able to be copyrighted. Which, of course, screws a lot of drummers.
If you clear a sample are you legally required to list that sample in your liner notes? After all, if you've already shelled out the dough, who cares if you list written credit or not?
Yeah, exactly -- that's what I was getting at as well.
O, it doesn't seem like your initial question was settled:
no one can sue for any unlicensed sample if it was produced before these laws were created. since there was no law in existence, there was no law to be broken.
It's not sufficient to merely make the claim--the court has to agree with you.
if you sample a song that contains samples, do you have to clear both songs?
let's say i want to use "stay fly" in a movie (or a beat), does anyone know if i also need to license "tell me why our love turned cold"?
Legally, I don't think there is any official word on it, but I would assume that that is one big reason why a lot of older music has not been reissued properly or remastered. I read somewhere that it's anywhere from three to five years, although that was a few years ago and things may have changed. I would think, however, that if an album is still selling consistently and/or getting airplay somewhere, it would be possible to make a claim for it. I remember when James Brown had come out of prison, and he made some statement or something which said he was going to come after everyone with lawsuits. I assume that if more artists got into it, they would do it as well.
Then again, most rap albums sell heavy within the first three months and kind of drift off unless it's an Eminem who will release a new single every three months.
Target (as in the department store) has been using quite a bit of classic songs, I would be curious to know if royalties go to who is listed on the record/CD cover, or do they add to that equation by seeking the author of the sampled song in question.
Unless they are a part of the composition, then no. However, one can sue for the unauthorized use of the sound recording.
It depends. Looking at liner notes, I have noticed that if an artist samples a rap song with a familiar sample in there, and that song credited the sample, then yes you have to give credit to how it is listed on that album. In other words, don't sample "Jenny From The Block" or you'll end up dividing the pie much thinner than you should.
That depends on the record label, the publisher, and sometimes the artist. You are not legally required to list it, but it does suggest that it was paid for, and labels want proper credit for everything, from the publisher, to the songwriting affiliation, etc.
I'm sure you know this too, but there are a number of artists out there who often give out incorrect... man, are you doing an article on this? Something for NPR? I'm tired of working for free and giving out information when it's convenient. You can contact my non-existent agent if you would like to speak with me on the situation.
(I'm joking of course. Then again, I'm not.)
This is a grey area. Whoever owns the masters gets paid. WHo they care to distribute the funds to is their perogative. If the drummer is a writer of the song or owner of the master-then he gets paid. if this were true studio musicians would be going crazy trying to prove they played on sessions. Wouldn't clyde stubblefield be paid as hell off of funky drummer? Rather than trying to fund raise when he had cancer?
interesting. if i claimed it was a parody of sampling laws and not of the music that was sampled.... then what? does the song have to be a parody of the song that was sampled to be considered "fair use" ala luke and roy? or can the claim that by blatantly sampling whatever I want to make fun of sampling laws stand on its own ground?
I would think that the idea has merit; that it falls within a legit definition of parody. but i'm not a lawyer.
Well, what you're describing sounds more like a satire than a parody, so I'm not sure that the exception is applicable. Regardless, though, my point was that the court is not bound by your assertions regarding your intent. I don't know anything at all about this area of the law, though.