Another "urban myth" about sampling that I hear is that if you only press "promo" copies, you don't have to clear samples...is there any truth to this??
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.
The main thing is that I don't think you truly understand what parody is. It's not just making fun of a song, and sampling itself isn't even close to parody. I'm not saying I'm a legal scholar here and fully understand parody, but parody generally means a comment upon the original song or idea, not just making fun of it. For instance, Weird Al always gets permission for his "parodies" because technically he could be sued because simply making fun of a song isn't protected.
It's been a while, but back when I was in college I had to take a class called "Legal Problems & The Recording Industry" and the 2 Live Crew case is one of those landmark intellectual property cases. The judge ruled that the 2 Live Crew song was a commentary upon the original and fell within the scopes of parody, which falls under fair use. Fair use is basically to protect the right to criticize or comment, or to allow use of materials in an educational environment. The thing a lot of people don't realize is that anything being claimed as a "fair use" is an admission of copyright infringement.
For something to be "fair use" it basically has to pass a 4-prong test:
1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
2. the nature of the copyrighted work
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work
You can't just claim something is fair use and it is; if you were taken to court it would be up to the judge to decide whether or not your use passes the 4-prong test and if it doesn't...sorry pal, you're up shit creek.
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.
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?
I just said "artist" as to refer to whoever owned the publishing on the song sampled -- and that's who would be ultimately getting the royalties, not merely the person who owned the master. Owning the master alone does not entitle you to royalty money. Perhaps if you were in fact the drummer in the particular session where the break was sampled from, and you were simply trying to add weight to your case by saying "hey, look, I have the masters and I was the drummer on that date -- pay me" it could be a determining factor. Otherwise, it's based on who owns the publishing, and that is another sticky situation because many artists surrender their right to the publishing when getting a record deal. In that case, the artist may never see his share of the royalties.
Oh yeah, here's a bit from the Fair Use entry in Wikipedia that pertains specifically to parody and mentions the 2 Live Crew case:
"Fair use and parody
Producers or creators of parodies of a copyrighted work have been sued for infringement by the targets of their ridicule, even though such use may be protected as fair use. The fair use cases addressing parodies distinguish between parodies ??? using a work in order to poke fun or comment on the work itself ??? and satires ??? using a work to poke fun or comment on something else. Courts have been more willing to grant fair use protections to parodies than to satires, but the ultimate outcome in either circumstance will turn on the application of the four fair use factors.
In Campbell v. Acuff-Rose Music (1994), the Supreme Court recognized parody as a fair use, even when done for profit. Roy Orbison's publisher, Acuff-Rose Music Inc., had sued 2 Live Crew in 1989 for their use of Orbison's "Oh, Pretty Woman" in a mocking rap version with altered lyrics. The Supreme Court viewed 2 Live Crew's version as a ridiculing commentary on the earlier work, and ruled that when the parody was itself the product rather than used for mere advertising, commercial sale did not bar the defense. The Campbell court also distinguished parodies from satire, which they described as a broader social critique not intrinsically tied to ridicule of a specific work, and so not deserving of the same use exceptions as parody because the satirist's ideas are capable of expression without the use of the other particular work.
In a more recent parody case, Suntrust v. Houghton Mifflin, a suit was brought unsuccessfully against the publication of The Wind Done Gone, which reused many of the characters and situations from Gone with the Wind, but told the events from the point of view of the slaves rather than the slaveholders. The Eleventh Circuit, applying Campbell, recognized that The Wind Done Gone was a protected parody, and vacated the district court's injunction against its publication."
the satirist's ideas are capable of expression without the use of the other particular work.
says who???? JESUS!
thanks for the article by the way. wikipedia is neat.
DocMcCoy"Go and laugh in your own country!" 5,913 Posts
Since I do this for a living, I'd like to make a few points;
O-Dub - mechanical rights don't cover just the recording. They relate to the mechanical reproduction of a copyright musical work, and that can be anything from a musical birthday card, to a ringtone, to a CD. If people do clear a drum break, they'll generally go for a master clearance only - ideally a buy-out, if they can get it. There are a few publishers who will demand a cut of the publishing if you use the breaks off some of their songs (word to the wise; steer clear of "Impeach The President", "Outstanding" and "Good Old Music"). As for the legal requirements to list the sample, that's dependent on the terms of the agreement. It's standard to ask for a credit, but there's one well-established, oft-sampled rap act who will routinely take a share of the publishing, but will specify that they must not be credited anywhere on the label copy/sleeve/CD booklet/wherever. Also, performing rights organisations in the US won't collect unclaimed royalties past a three-year period (six years in the UK), so whether a statute of limitations applies or not, it's only really effective if you make your claim right off the bat and it isn't tied up in court for years. I'm sure you could claim damages in lieu of lost royalties though.
Mandrew - if you wanted to use "Stay Fly" in a movie, you'd license "Stay Fly", because the elements of "Tell Me Why Our Love Turned Cold" that Three-6 used will be embodied within "Stay Fly" according to the terms of the clearance agreement. You'd need Willie Hutch's publisher's approval to license it for your movie, because the publishers would administer their individual rights to the song separately, but you wouldn't need to license the Willie Hutch song itself separately.
As Karlito says, it's more trouble than it's worth to sue over relatively small uses on limited-run releases. Technically, you could do it, but whatever benefit there'd be would be eaten in lawyer's fees. Imagine if the rights owners of "Funky Drummer" decided to pursue everyone who'd sampled it without clearing it - there'd be enough work for an entire office for ten years at least, but to what end?
Question: Which major label has just had to abandon an extensive reissue programme for the back catalogue of a landmark hip-hop act because they're shook about retroactive claims on uncleared samples?
Another "urban myth" about sampling that I hear is that if you only press "promo" copies, you don't have to clear samples...is there any truth to this??
There is some truth to this. The idea is, you can sample whoever you like, but once you turn a profit on such material, the artists sampled need to be compensated should they pursue payment. So in essence, yes, if you're just giving away promos copies with uncleared samples, you're OK. Actually, many major labels take advantage of this loophole regularly. For example, that Ghostface joint -- I think it was called "The Watch," where he rhymed over that Barry White loop from "I'm Gonna Love You..." They couldn't clear the sample but they thought it was hot so they put it out as a promo rather than completely scrapping the song. It's a smart way to take advantage of a loophole. Sometimes exposure is better than profit.
Question: Which major label has just had to abandon an extensive reissue programme for the back catalogue of a landmark hip-hop act because they're shook about retroactive claims on uncleared samples?
I would certainly like to know...
I'm trying to think what landmark act signed to a major has a currently out of print catalog... or is it that the catalog remians in print, but there is a fear that advertising and deluxe repackaging would draw attention to it?
Question: Which major label has just had to abandon an extensive reissue programme for the back catalogue of a landmark hip-hop act because they're shook about retroactive claims on uncleared samples?
I would certainly like to know...
I'm trying to think what landmark act signed to a major has a currently out of print catalog... or is it that the catalog remians in print, but there is a fear that advertising and deluxe repackaging would draw attention to it?
Beastie Boys - Licensed to Ill/Pauls Boutique ? (granted these were on different labels, but both had MAJOR uncleared samples)
DocMcCoy"Go and laugh in your own country!" 5,913 Posts
Another "urban myth" about sampling that I hear is that if you only press "promo" copies, you don't have to clear samples...is there any truth to this??
There is some truth to this. The idea is, you can sample whoever you like, but once you turn a profit on such material, the artists sampled need to be compensated should they pursue payment. So in essence, yes, if you're just giving away promos copies with uncleared samples, you're OK. Actually, many major labels take advantage of this loophole regularly. For example, that Ghostface joint -- I think it was called "The Watch," where he rhymed over that Barry White loop from "I'm Gonna Love You..." They couldn't clear the sample but they thought it was hot so they put it out as a promo rather than completely scrapping the song. It's a smart way to take advantage of a loophole. Sometimes exposure is better than profit.
Same with "Flowers" - they couldn't clear the "Mardi Gras" sample, so that one only ever came out on promo, with a weaker version getting used on "Bulletproof Wallets". "Mardi Gras" is a funny one. Bob James, who takes a notoriously hard line on samples, knows that the break gets sampled a lot, but he can't make a claim on the publishing because Paul Simon wrote the song. Why he never seems to have made a bigger issue over the recording use (because he owns all his Tappan Zee masters) is a mystery to me.
Another "urban myth" about sampling that I hear is that if you only press "promo" copies, you don't have to clear samples...is there any truth to this??
There is some truth to this. The idea is, you can sample whoever you like, but once you turn a profit on such material, the artists sampled need to be compensated should they pursue payment. So in essence, yes, if you're just giving away promos copies with uncleared samples, you're OK. Actually, many major labels take advantage of this loophole regularly. For example, that Ghostface joint -- I think it was called "The Watch," where he rhymed over that Barry White loop from "I'm Gonna Love You..." They couldn't clear the sample but they thought it was hot so they put it out as a promo rather than completely scrapping the song. It's a smart way to take advantage of a loophole. Sometimes exposure is better than profit.
What's interesting to me about this is that radio stations can play promos, so a track like the Ghostface could blow up on radio and the samples would not need to be cleared - and the radio station would make money. One could assume the sampled artist could sue for broadcast royalties in such a case, I would think. Also, if the sampled artist found the uncleared material offensive, I would think they could sue everybody - or could they?
well, i think the laws that were cited were created in the 1800s or some shit though.
Here are the former and present copyright terms:
1790: 14 years + 14 years of renewal 1831: 28 + 14 1909: 28 + 28 1976: author's life + 50, 75 for works made for hire 1998 CTEA: author's life + 70, 95 for works made for hire
In addition to the now seemingly endless copyright terms, the recent George Clinton/NWA case (Bridgeport Music v. Dimension Films, et al.383 F. 3d 390 (6th Cir. 2004) suggests that older recordings that sampled without clearance are still not in the clear.
DocMcCoy"Go and laugh in your own country!" 5,913 Posts
Question: Which major label has just had to abandon an extensive reissue programme for the back catalogue of a landmark hip-hop act because they're shook about retroactive claims on uncleared samples?
I would certainly like to know...
I'm trying to think what landmark act signed to a major has a currently out of print catalog... or is it that the catalog remians in print, but there is a fear that advertising and deluxe repackaging would draw attention to it?
The answer's PE. So much of the shit on those records was never cleared. Bridgeport, the publisher which owns the rights to almost all the Parliament/Funkadelic/Westbound catalogue, pretty much went to war with a grip of major labels over uncleared samples a few years back. It was all settled out of court, but it dragged on for years and they went after absolutely everything, so PE got hit hard, as did a lot of other acts. From what I hear, Island Def Jam feels as if they got away with a lot of it first time out, but to repackage it, knowing that shit like, say, the Meters sample on "Timebomb" was never cleared properly (if at all), would be leaving themselves wide open.
There'll probably never be 20th Anniversary Remastered Editions of "Licensed To Ill" or "Paul's Boutique" for similar reasons.
There'll probably never be 20th Anniversary Remastered Editions of "Licensed To Ill" or "Paul's Boutique" for similar reasons.
Huh, I thought I heard them say on MTV one time that they had to spend so much clearing shit on BOUTIQUE that that was why they went to the studio and recorded their own breaks for the next album
DocMcCoy"Go and laugh in your own country!" 5,913 Posts
There'll probably never be 20th Anniversary Remastered Editions of "Licensed To Ill" or "Paul's Boutique" for similar reasons.
Huh, I thought I heard them say on MTV one time that they had to spend so much clearing shit on BOUTIQUE that that was why they went to the studio and recorded their own breaks for the next album
Master clearances, maybe. Publishing clearances? Well, they might have cleared some of them, but definitely not all of them. Not those Beatles samples, for a start.
Another "urban myth" about sampling that I hear is that if you only press "promo" copies, you don't have to clear samples...is there any truth to this??
There is some truth to this. The idea is, you can sample whoever you like, but once you turn a profit on such material, the artists sampled need to be compensated should they pursue payment. So in essence, yes, if you're just giving away promos copies with uncleared samples, you're OK. Actually, many major labels take advantage of this loophole regularly. For example, that Ghostface joint -- I think it was called "The Watch," where he rhymed over that Barry White loop from "I'm Gonna Love You..." They couldn't clear the sample but they thought it was hot so they put it out as a promo rather than completely scrapping the song. It's a smart way to take advantage of a loophole. Sometimes exposure is better than profit.
Same with "Flowers" - they couldn't clear the "Mardi Gras" sample, so that one only ever came out on promo, with a weaker version getting used on "Bulletproof Wallets". "Mardi Gras" is a funny one. Bob James, who takes a notoriously hard line on samples, knows that the break gets sampled a lot, but he can't make a claim on the publishing because Paul Simon wrote the song. Why he never seems to have made a bigger issue over the recording use (because he owns all his Tappan Zee masters) is a mystery to me.
Yeah, funny you mention Bob James. Similar promo-only thing with that Souls/Hiero song "Cab Fare" where they sampled "Angela," the theme from Taxi. I read an interview with Bob James and he was saying that he felt they bastardized the original version of the song with how much they sped up the sample and he wouldn't clear it. As someone who samples, I know it's probably not a good look to agree with Bob James, but I have to admit, I thought they went a little pitch crazy with that joint when I first heard it. Wasn't surprised to hear Bob James' discontent with it.
Also, if the sampled artist found the uncleared material offensive, I would think they could sue everybody - or could they?
I touched on this on a different topic at OKP, but I think of the Mad Flava/Joe Farrell issue. Joe Farrell's "Up On This Rock" was used in Black Sheep's "Flavor Of The Month". Mad Flava wanted to use the track for their own "Spread The Butta". Priority Records, Mad Flava's label, had already sent out advance tapes to the media, in the hopes that by the time the album came out two months later, magazines would have some reviews. However in this case, the sample had to be cleared by Farrell's family and estate. They heard the lyrics, which was very explicit, and said no way. They would not grant it unless the version of the song was clean. If they proceeded with the version as is, Farrell's estate would sue. Unfortunately, Mad Flava did not do a clean version for any of the songs, and apparently they loved the song enough to not want to censor any of the words by simply reversing them. They had to go back in the studio to do a completely different vocal track. In that time, a small handful of other songs were not granted permission, so it ended up delaying their debut album by nine months. In that time a single was made, along with a video which aired for BET, "Feel The Flava". When the album came out, the small buzz that the group had (including a very nice interview in URB) had pretty much faded with the new buzz of the Wu-Tang Clan. To make it worse, one of Mad Flava's song sampled "As Long As I've Got You", and when "C.R.E.A.M." dropped on the same month, it seemed that Mad Flava had copied the Wu, when the MF song was done months before Wu even did sessions for their album.
These days if artists know they can't press it up, they will generally release it on their own as a white label pressing, which has the appeal and look of a bootleg/"unofficial release", but is a way of getting the material out there so fans can hear it as is. Or of course, "leak" out the MP3.
DocMcCoy"Go and laugh in your own country!" 5,913 Posts
Doc:
Maybe you already broke this down but what's to stop someone from suing a rapper for a sample-laden album from 1986?
I'm not too sure on how US law would look at it but, theoretically at least, nothing. Suppose someone used a song from this album in a movie, and the guy who wrote the song that was sampled went to see the movie, and heard the new song? It would still be an infringement, even 20 years after the fact, and I'm pretty sure there'd be a case, but it would probably be more effective to sue for damages, as well as claiming infringement of moral rights. I'm no lawyer, though, and I should add as well that, relatively speaking, it's very rare for a sample case to go to court. Most of the time, the parties involved will settle long before that stage. That's why I was so surpised to see Dre at the centre of three major sample trials in recent years. He needs to get a new lawyer.
What's interesting here is that I remember Bob James saying that he really liked how Rza totally flipped the key on "Nautilus" for "Daytona 500". Diff't strokes I guess.
Another "urban myth" about sampling that I hear is that if you only press "promo" copies, you don't have to clear samples...is there any truth to this??
There is some truth to this. The idea is, you can sample whoever you like, but once you turn a profit on such material, the artists sampled need to be compensated should they pursue payment. So in essence, yes, if you're just giving away promos copies with uncleared samples, you're OK. Actually, many major labels take advantage of this loophole regularly. For example, that Ghostface joint -- I think it was called "The Watch," where he rhymed over that Barry White loop from "I'm Gonna Love You..." They couldn't clear the sample but they thought it was hot so they put it out as a promo rather than completely scrapping the song. It's a smart way to take advantage of a loophole. Sometimes exposure is better than profit.
Same with "Flowers" - they couldn't clear the "Mardi Gras" sample, so that one only ever came out on promo, with a weaker version getting used on "Bulletproof Wallets". "Mardi Gras" is a funny one. Bob James, who takes a notoriously hard line on samples, knows that the break gets sampled a lot, but he can't make a claim on the publishing because Paul Simon wrote the song. Why he never seems to have made a bigger issue over the recording use (because he owns all his Tappan Zee masters) is a mystery to me.
Yeah, funny you mention Bob James. Similar promo-only thing with that Souls/Hiero song "Cab Fare" where they sampled "Angela," the theme from Taxi. I read an interview with Bob James and he was saying that he felt they bastardized the original version of the song with how much they sped up the sample and he wouldn't clear it. As someone who samples, I know it's probably not a good look to agree with Bob James, but I have to admit, I thought they went a little pitch crazy with that joint when I first heard it. Wasn't surprised to hear Bob James' discontent with it.
Question: Which major label has just had to abandon an extensive reissue programme for the back catalogue of a landmark hip-hop act because they're shook about retroactive claims on uncleared samples?
I'm going to take a guess. Universal, and it applies to the first three Public Enemy albums since Def Jam is now with Universal?
I think it was Bill Stephney who was either going to write a book, was approached by someone who is writing a book, or whatever, it was going to be an in-depth look at the making of It Takes A Nation Of Millions To Hold Us Back, and it was going to look at the album inside-out, from the type of equipment, how many takes were done, as well as some of the layers heard within each song. That's why I'm guessing on P.E.
What's the going rate($$$$$$)for utilizing a sample?
Is it dependent on length, lawyers, the artist?
DocMcCoy"Go and laugh in your own country!" 5,913 Posts
Question: Which major label has just had to abandon an extensive reissue programme for the back catalogue of a landmark hip-hop act because they're shook about retroactive claims on uncleared samples?
I'm going to take a guess. Universal, and it applies to the first three Public Enemy albums since Def Jam is now with Universal?
I think it was Bill Stephney who was either going to write a book, was approached by someone who is writing a book, or whatever, it was going to be an in-depth look at the making of It Takes A Nation Of Millions To Hold Us Back, and it was going to look at the album inside-out, from the type of equipment, how many takes were done, as well as some of the layers heard within each song. That's why I'm guessing on P.E.
The weird thing about all of this is, I know some of these issues because I've always been into sample-based music and the legality of it all. That curiosity lead me to want to do what I do now, and I like to be sneaky. I want to make something and have someone go "AH HA, THAT'S FROM THAT EXERCISE RECORD!" Vinyl geekdom at its best.
If I had the luxury of working with a major label artist, or if I had my own deal (very unlikely), it would be great to be able to give back to those artists whom I've admired over the years. Yet there is that urge to fuck shit up by having a sampling free for all. Diddy gets away with a lot of it because he has his samples recreated, which in many ways is like any other artist covering the song.
The minimalist approach in hip-hop in the last ten years has made a lot of rappers and producers wealthy, because they're going for the no sample approach. Or if it's a 15 song album, maybe two songs will have a sample or interpolation, thus reducing costs. Those who didn't want a minimalist sound simply refined their chopping skills.
The minimalist approach in hip-hop in the last ten years has made a lot of rappers and producers wealthy, because they're going for the no sample approach. Or if it's a 15 song album, maybe two songs will have a sample or interpolation, thus reducing costs. Those who didn't want a minimalist sound simply refined their chopping skills.
I can't think of an album in past 10 years that has not used samples to make it a great album. Its a long list to find one that hasn't, maybe Master P but yeouch
well, i think the laws that were cited were created in the 1800s or some shit though.
Here are the former and present copyright terms:
1790: 14 years + 14 years of renewal 1831: 28 + 14 1909: 28 + 28 1976: author's life + 50, 75 for works made for hire 1998 CTEA: author's life + 70, 95 for works made for hire
In addition to the now seemingly endless copyright terms, the recent George Clinton/NWA case (Bridgeport Music v. Dimension Films, et al.383 F. 3d 390 (6th Cir. 2004) suggests that older recordings that sampled without clearance are still not in the clear.
The Constitution Of The United States:
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
Clearly congress has perverted this clause to promote the wealth of the heirs of copyright and patent owners at the expense of progress.
If Congress was concerned with the promotion of "progress of Science and useful Arts" they would reduce the length of copyrights.
What's the going rate($$$$$$)for utilizing a sample?
Is it dependent on length, lawyers, the artist?
From personal experience, I wanted to clear a sample for one of my songs. I told them that I was unsigned, with indie label interest. This was around the time I had come out with the eBay song, and I figured if more mushc was to come out I better know what to expect. My song had a number of samples, but there was a main loop that I felt should be cleared. I was told that my minimum fee would be $5000, and that off-the-record, it probably would not be worth my time to pay it since I'm probably not going to make that money off of the song anyway. It was a harsh response, but it was true. If I was represented by a major label and the song was to be used for a movie or a television campaign, then at least that money could be made back through publishing.
Lawyers will look at you as an artist and see how much your net-worth is. It's like magazines and websites that charge differently between indie labels and majors. If you are an indie artist or self-release your music, the fees aren't going to be as high. If you are on a major label, fees go up considerably. Before he died, Barry White had charged a flat fee of $40,000 for usage of his music, and he added surcharges if there were any expletives. That was in the early/mid-90's, I could only imagine what a normal sample fee is today. Artists and labels don't only want the sampling fee, they also want a cut of publishing, because "the life of the song" will generate further income in the future than just that flat, one-time fee.
I do not know if length of the sample (i.e. how much of the song you sample) is involved. I would think it would matter after the fact, if the song is not cleared. It's almost like movies, where lawyers will charge a "needle drop" fee for usage in a film. If a song is heard in a movie three different times, you pay for each different time it is heard.
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
Clearly SONNY BONO[/b] perverted this clause to promote the wealth of the heirs of copyright and patent owners at the expense of progress.
If Congress was concerned with the promotion of "progress of Science and useful Arts" they would reduce the length of copyrights.
Comments
if you only press "promo" copies, you don't have to clear
samples...is there any truth to this??
Nothing to add but this: Wikipedia article on Poor Man's Copyright explains a little on that tip.
The main thing is that I don't think you truly understand what parody is. It's not just making fun of a song, and sampling itself isn't even close to parody. I'm not saying I'm a legal scholar here and fully understand parody, but parody generally means a comment upon the original song or idea, not just making fun of it. For instance, Weird Al always gets permission for his "parodies" because technically he could be sued because simply making fun of a song isn't protected.
It's been a while, but back when I was in college I had to take a class called "Legal Problems & The Recording Industry" and the 2 Live Crew case is one of those landmark intellectual property cases. The judge ruled that the 2 Live Crew song was a commentary upon the original and fell within the scopes of parody, which falls under fair use. Fair use is basically to protect the right to criticize or comment, or to allow use of materials in an educational environment. The thing a lot of people don't realize is that anything being claimed as a "fair use" is an admission of copyright infringement.
For something to be "fair use" it basically has to pass a 4-prong test:
1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
2. the nature of the copyrighted work
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work
You can't just claim something is fair use and it is; if you were taken to court it would be up to the judge to decide whether or not your use passes the 4-prong test and if it doesn't...sorry pal, you're up shit creek.
I just said "artist" as to refer to whoever owned the publishing on the song sampled -- and that's who would be ultimately getting the royalties, not merely the person who owned the master. Owning the master alone does not entitle you to royalty money. Perhaps if you were in fact the drummer in the particular session where the break was sampled from, and you were simply trying to add weight to your case by saying "hey, look, I have the masters and I was the drummer on that date -- pay me" it could be a determining factor. Otherwise, it's based on who owns the publishing, and that is another sticky situation because many artists surrender their right to the publishing when getting a record deal. In that case, the artist may never see his share of the royalties.
"Fair use and parody
Producers or creators of parodies of a copyrighted work have been sued for infringement by the targets of their ridicule, even though such use may be protected as fair use. The fair use cases addressing parodies distinguish between parodies ??? using a work in order to poke fun or comment on the work itself ??? and satires ??? using a work to poke fun or comment on something else. Courts have been more willing to grant fair use protections to parodies than to satires, but the ultimate outcome in either circumstance will turn on the application of the four fair use factors.
In Campbell v. Acuff-Rose Music (1994), the Supreme Court recognized parody as a fair use, even when done for profit. Roy Orbison's publisher, Acuff-Rose Music Inc., had sued 2 Live Crew in 1989 for their use of Orbison's "Oh, Pretty Woman" in a mocking rap version with altered lyrics. The Supreme Court viewed 2 Live Crew's version as a ridiculing commentary on the earlier work, and ruled that when the parody was itself the product rather than used for mere advertising, commercial sale did not bar the defense. The Campbell court also distinguished parodies from satire, which they described as a broader social critique not intrinsically tied to ridicule of a specific work, and so not deserving of the same use exceptions as parody because the satirist's ideas are capable of expression without the use of the other particular work.
In a more recent parody case, Suntrust v. Houghton Mifflin, a suit was brought unsuccessfully against the publication of The Wind Done Gone, which reused many of the characters and situations from Gone with the Wind, but told the events from the point of view of the slaves rather than the slaveholders. The Eleventh Circuit, applying Campbell, recognized that The Wind Done Gone was a protected parody, and vacated the district court's injunction against its publication."
says who???? JESUS!
thanks for the article by the way. wikipedia is neat.
O-Dub - mechanical rights don't cover just the recording. They relate to the mechanical reproduction of a copyright musical work, and that can be anything from a musical birthday card, to a ringtone, to a CD. If people do clear a drum break, they'll generally go for a master clearance only - ideally a buy-out, if they can get it. There are a few publishers who will demand a cut of the publishing if you use the breaks off some of their songs (word to the wise; steer clear of "Impeach The President", "Outstanding" and "Good Old Music"). As for the legal requirements to list the sample, that's dependent on the terms of the agreement. It's standard to ask for a credit, but there's one well-established, oft-sampled rap act who will routinely take a share of the publishing, but will specify that they must not be credited anywhere on the label copy/sleeve/CD booklet/wherever. Also, performing rights organisations in the US won't collect unclaimed royalties past a three-year period (six years in the UK), so whether a statute of limitations applies or not, it's only really effective if you make your claim right off the bat and it isn't tied up in court for years. I'm sure you could claim damages in lieu of lost royalties though.
Mandrew - if you wanted to use "Stay Fly" in a movie, you'd license "Stay Fly", because the elements of "Tell Me Why Our Love Turned Cold" that Three-6 used will be embodied within "Stay Fly" according to the terms of the clearance agreement. You'd need Willie Hutch's publisher's approval to license it for your movie, because the publishers would administer their individual rights to the song separately, but you wouldn't need to license the Willie Hutch song itself separately.
As Karlito says, it's more trouble than it's worth to sue over relatively small uses on limited-run releases. Technically, you could do it, but whatever benefit there'd be would be eaten in lawyer's fees. Imagine if the rights owners of "Funky Drummer" decided to pursue everyone who'd sampled it without clearing it - there'd be enough work for an entire office for ten years at least, but to what end?
Question: Which major label has just had to abandon an extensive reissue programme for the back catalogue of a landmark hip-hop act because they're shook about retroactive claims on uncleared samples?
There is some truth to this. The idea is, you can sample whoever you like, but once you turn a profit on such material, the artists sampled need to be compensated should they pursue payment. So in essence, yes, if you're just giving away promos copies with uncleared samples, you're OK. Actually, many major labels take advantage of this loophole regularly. For example, that Ghostface joint -- I think it was called "The Watch," where he rhymed over that Barry White loop from "I'm Gonna Love You..." They couldn't clear the sample but they thought it was hot so they put it out as a promo rather than completely scrapping the song. It's a smart way to take advantage of a loophole. Sometimes exposure is better than profit.
I would certainly like to know...
I'm trying to think what landmark act signed to a major has a currently out of print catalog... or is it that the catalog remians in print, but there is a fear that advertising and deluxe repackaging would draw attention to it?
Beastie Boys - Licensed to Ill/Pauls Boutique ? (granted these were on different labels, but both had MAJOR uncleared samples)
Same with "Flowers" - they couldn't clear the "Mardi Gras" sample, so that one only ever came out on promo, with a weaker version getting used on "Bulletproof Wallets". "Mardi Gras" is a funny one. Bob James, who takes a notoriously hard line on samples, knows that the break gets sampled a lot, but he can't make a claim on the publishing because Paul Simon wrote the song. Why he never seems to have made a bigger issue over the recording use (because he owns all his Tappan Zee masters) is a mystery to me.
What's interesting to me about this is that radio stations
can play promos, so a track like the Ghostface could blow
up on radio and the samples would not need to be cleared -
and the radio station would make money. One could assume
the sampled artist could sue for broadcast royalties in
such a case, I would think. Also, if the sampled artist
found the uncleared material offensive, I would think they
could sue everybody - or could they?
Here are the former and present copyright terms:
1790: 14 years + 14 years of renewal
1831: 28 + 14
1909: 28 + 28
1976: author's life + 50, 75 for works made for hire
1998 CTEA: author's life + 70, 95 for works made for hire
In addition to the now seemingly endless copyright terms, the recent George
Clinton/NWA case (Bridgeport Music v. Dimension Films, et al.383 F. 3d 390 (6th Cir.
2004) suggests that older recordings that sampled without clearance are still
not in the clear.
The answer's PE. So much of the shit on those records was never cleared. Bridgeport, the publisher which owns the rights to almost all the Parliament/Funkadelic/Westbound catalogue, pretty much went to war with a grip of major labels over uncleared samples a few years back. It was all settled out of court, but it dragged on for years and they went after absolutely everything, so PE got hit hard, as did a lot of other acts. From what I hear, Island Def Jam feels as if they got away with a lot of it first time out, but to repackage it, knowing that shit like, say, the Meters sample on "Timebomb" was never cleared properly (if at all), would be leaving themselves wide open.
There'll probably never be 20th Anniversary Remastered Editions of "Licensed To Ill" or "Paul's Boutique" for similar reasons.
Huh, I thought I heard them say on MTV one time that they had to spend so much clearing shit on BOUTIQUE that that was why they went to the studio and recorded their own breaks for the next album
Master clearances, maybe. Publishing clearances? Well, they might have cleared some of them, but definitely not all of them. Not those Beatles samples, for a start.
Maybe you already broke this down but what's to stop someone from suing a rapper for a sample-laden album from 1986?
Yeah, funny you mention Bob James. Similar promo-only thing with that Souls/Hiero song "Cab Fare" where they sampled "Angela," the theme from Taxi. I read an interview with Bob James and he was saying that he felt they bastardized the original version of the song with how much they sped up the sample and he wouldn't clear it. As someone who samples, I know it's probably not a good look to agree with Bob James, but I have to admit, I thought they went a little pitch crazy with that joint when I first heard it. Wasn't surprised to hear Bob James' discontent with it.
I touched on this on a different topic at OKP, but I think of the Mad Flava/Joe Farrell issue. Joe Farrell's "Up On This Rock" was used in Black Sheep's "Flavor Of The Month". Mad Flava wanted to use the track for their own "Spread The Butta". Priority Records, Mad Flava's label, had already sent out advance tapes to the media, in the hopes that by the time the album came out two months later, magazines would have some reviews. However in this case, the sample had to be cleared by Farrell's family and estate. They heard the lyrics, which was very explicit, and said no way. They would not grant it unless the version of the song was clean. If they proceeded with the version as is, Farrell's estate would sue. Unfortunately, Mad Flava did not do a clean version for any of the songs, and apparently they loved the song enough to not want to censor any of the words by simply reversing them. They had to go back in the studio to do a completely different vocal track. In that time, a small handful of other songs were not granted permission, so it ended up delaying their debut album by nine months. In that time a single was made, along with a video which aired for BET, "Feel The Flava". When the album came out, the small buzz that the group had (including a very nice interview in URB) had pretty much faded with the new buzz of the Wu-Tang Clan. To make it worse, one of Mad Flava's song sampled "As Long As I've Got You", and when "C.R.E.A.M." dropped on the same month, it seemed that Mad Flava had copied the Wu, when the MF song was done months before Wu even did sessions for their album.
These days if artists know they can't press it up, they will generally release it on their own as a white label pressing, which has the appeal and look of a bootleg/"unofficial release", but is a way of getting the material out there so fans can hear it as is. Or of course, "leak" out the MP3.
I'm not too sure on how US law would look at it but, theoretically at least, nothing. Suppose someone used a song from this album in a movie, and the guy who wrote the song that was sampled went to see the movie, and heard the new song? It would still be an infringement, even 20 years after the fact, and I'm pretty sure there'd be a case, but it would probably be more effective to sue for damages, as well as claiming infringement of moral rights. I'm no lawyer, though, and I should add as well that, relatively speaking, it's very rare for a sample case to go to court. Most of the time, the parties involved will settle long before that stage. That's why I was so surpised to see Dre at the centre of three major sample trials in recent years. He needs to get a new lawyer.
I'm going to take a guess. Universal, and it applies to the first three Public Enemy albums since Def Jam is now with Universal?
I think it was Bill Stephney who was either going to write a book, was approached by someone who is writing a book, or whatever, it was going to be an in-depth look at the making of It Takes A Nation Of Millions To Hold Us Back, and it was going to look at the album inside-out, from the type of equipment, how many takes were done, as well as some of the layers heard within each song. That's why I'm guessing on P.E.
Is it dependent on length, lawyers, the artist?
Yup.
If I had the luxury of working with a major label artist, or if I had my own deal (very unlikely), it would be great to be able to give back to those artists whom I've admired over the years. Yet there is that urge to fuck shit up by having a sampling free for all. Diddy gets away with a lot of it because he has his samples recreated, which in many ways is like any other artist covering the song.
The minimalist approach in hip-hop in the last ten years has made a lot of rappers and producers wealthy, because they're going for the no sample approach. Or if it's a 15 song album, maybe two songs will have a sample or interpolation, thus reducing costs. Those who didn't want a minimalist sound simply refined their chopping skills.
I can't think of an album in past 10 years that has not used samples to make it a great album.
Its a long list to find one that hasn't, maybe Master P but yeouch
The Constitution Of The United States:
Clearly congress has perverted this clause to promote the wealth of the heirs of copyright and patent owners at the expense of progress.
If Congress was concerned with the promotion of "progress of Science and useful Arts" they would reduce the length of copyrights.
From personal experience, I wanted to clear a sample for one of my songs. I told them that I was unsigned, with indie label interest. This was around the time I had come out with the eBay song, and I figured if more mushc was to come out I better know what to expect. My song had a number of samples, but there was a main loop that I felt should be cleared. I was told that my minimum fee would be $5000, and that off-the-record, it probably would not be worth my time to pay it since I'm probably not going to make that money off of the song anyway. It was a harsh response, but it was true. If I was represented by a major label and the song was to be used for a movie or a television campaign, then at least that money could be made back through publishing.
Lawyers will look at you as an artist and see how much your net-worth is. It's like magazines and websites that charge differently between indie labels and majors. If you are an indie artist or self-release your music, the fees aren't going to be as high. If you are on a major label, fees go up considerably. Before he died, Barry White had charged a flat fee of $40,000 for usage of his music, and he added surcharges if there were any expletives. That was in the early/mid-90's, I could only imagine what a normal sample fee is today. Artists and labels don't only want the sampling fee, they also want a cut of publishing, because "the life of the song" will generate further income in the future than just that flat, one-time fee.
I do not know if length of the sample (i.e. how much of the song you sample) is involved. I would think it would matter after the fact, if the song is not cleared. It's almost like movies, where lawyers will charge a "needle drop" fee for usage in a film. If a song is heard in a movie three different times, you pay for each different time it is heard.