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Sampling and potential trouble

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HeptagenHeptagen Posts: 192

How do you go about sampling? Do you care about "clearing" a sample with its owners beforehand and pay for it? Do you just take whatever catches your ear, no matter where it comes from?

I know that this is no problem for music that never gets uploaded. But how do you go about that with tracks that you do upload?
Do you have a "no plaintiff, no judge"-approach or is it important for you to follow the rules in every case?

I'd love to read your thoughts on this.

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Comments

  • 1
    MikeKayMikeKay Sydney, West IslandPosts: 14
    edited May 10

    I've been thinking about this a lot in the past couple of days.

    Right now, any samples I've used are either bought-and-paid-for (so cleared for use) or found sounds (things captured on a microphone; spam voice mail messages). Since I work with cultural heritage institutions, I try to stay on the right side of the intellectual property divide.

    Also, remember that a lot of this depends on what country you're in, so what I say might not be the case for you.

    Last week I sampled dialogue from an educational film from the late 1960s. By any country's definition of copyright, this is still covered, and likely will be for some time. So I thought I'd start down the clearance road and see what happened. I like the samples, and would be willing to pay a reasonable amount for them. If the copyright holder said no or demanded a lot of money, no worries, I'd just delete them.

    Here's the thing, though. The studio that produced the film is no longer in existence, and the owner died in the mid-1990s. So I think copyright would then go to his family/estate, but the studio itself was purchased by another educational film provider. They may or may not hold the rights to the film. (Also - the educational provider is just one branch of a larger organisation, so the copyright might be held by the parent company.)

    I tried doing some detective work through the Library of Congress (the film is from the US) but only reached dead ends and scans of card-catalogue cards(!). I don't know if somewhere like the LoC would keep track of copyright after it changed hands, too.

    So at least three paths to follow here. I haven't started contacting anyone yet, as I don't know if it's ultimately worth it. I like the samples - and would like to offer them up to others - but it seems like it might take a lot of time and follow-up.

    Things would be helped, I think, if the Australian doctrine of Fair Dealing was expanded to exempt more than just research/study, criticism/review, parody/satire, news reporting or enabling accessibility. New Zealand has a similar (and more limited) exemption framework.

    The US doctrine of Fair Use might be a better way to go, as it's not so rigidly defined. I think the samples I'd captured would be allowable by that litmus test, as they come from a published educational work. Australia has been talking about moving towards 'Fair Use' recently, and it's had many creators say that it's A Very, Very Bad Idea, and would rob them of their livelihoods.

    In the meantime, I may start chasing up potential copyright holders for clearance. I guess it depends on how motivated I get.

    Post edited by MikeKay on
  • 1
    hexagon5unhexagon5un MunichBeta Tester Posts: 108

    @MikeKay: Fair use is probably not relevant. It covers use for education, discussion, parody, and review. Creating music, unless you're Wierd Al, isn't any of these. Fair use will not help you.

    (Are you confusing the use of educational material with a use for educational purposes?)

    Unlike covering or playing someone's entire song, which just requires payment of royalties, sampling anything also requires permission. Transformation won't get you out of it either. (See "100 Miles and Runnin" by NWA.) If you care about being strictly immune to lawsuits, you must clear all samples, period.

    In my opinion, many sampling rulings have been wrongheaded, and the pattern of selective application is probably racist, but that's the way it has gone down in the courts.


    But Heptagen's question wasn't about the possible liabilities of sampling, but whether we do it anyway. DMCA makes it very easy to pull your music down, but that's the extent of it. Actually mounting a court case costs time and money, and if you're not worth it, you're not worth it. (No offence.)

    My lawyer advises me to not comment any further. :)

  • -1
    PercivalePercivale SingaporePosts: 28
    edited May 12

    Wanted to chime in on this. I felt that one could easily copyright a song due to its complete and identifiable nature. However, samples become challenging, i.e. to attribute ownership and identify as intellectual property.

    There should be a line somewhere. Samples are basically what the name itself implies, here as bits of audio (read till end). Who is to say that the author did not sample (pun not intended) from elsewhere in the first place. Add in the plethora of FXs and other tweaks and you would not be able to tell for sure the origin to ascertain ownership. How short should a sample be before it is deemed as non-exclusive for all intents and purposes - 3 seconds, 2 seconds or ½ second? Single-cycle waveforms anyone?

    So much sounds/samples out there. With ingenuity and research you could get almost all sounds imaginable, so I think we should just use samples with a pinch of salt and not be too caught up with its origin. Pay the provider if you really wish to and get on with the music making.

    Post edited by Percivale on
  • 0
    hexagon5unhexagon5un MunichBeta Tester Posts: 108

    @Percivale said:
    How short should a sample be before it is deemed as non-exclusive for all intents and purposes - 3 seconds, 2 seconds or ½ second? Single-cycle waveforms anyone?

    The answer to this question is unfortunately: as short as the plaintiff's lawyer can make a convincing argument for. The problem is that there is no line, or if there is, it moves around all the time.

    The NWA case was a two-sec sample pitch-shifted and stretched out over many bars. (The irony is that the original player made $50 on the take: https://en.wikipedia.org/wiki/Get_Off_Your_Ass_and_Jam) Not sampling-related, but the Katy Perry copyright case (https://www.theguardian.com/music/2020/mar/18/katy-perry-wins-appeal-in-28m-plagiarism-case-dark-horse) is even crazier.

    So much sounds/samples out there.

    This is the truth! More than you need. And (field-)recording your own has never been easier either.

    Still, really smoking drum loops are somehow special. I still can't shake the original Zepplin "When the Levee Breaks" loop... Which is, if anything, a sign that I would want to clear it with them for any professional use.

  • 0
    hexagon5unhexagon5un MunichBeta Tester Posts: 108

    @Percivale said:
    How short should a sample be before it is deemed as non-exclusive for all intents and purposes - 3 seconds, 2 seconds or ½ second? Single-cycle waveforms anyone?

    The answer to this question is unfortunately: as short as the plaintiff's lawyer can make a convincing argument for. There is no line. The NWA case was a two-sec sample pitch-shifted and stretched out over many bars. (The irony is that the original player made $50 on the take: https://en.wikipedia.org/wiki/Get_Off_Your_Ass_and_Jam)

    The Katy Perry and Pharrell Williams/Robin Thicke cases are maybe even more depressing, though not directly related to sampling.

    I think the only way to stay sane in this climate is to decide that you're not going to worry about it until you're making enough money to hire a lawyer to worry about it.

    So much sounds/samples out there.

    This is the truth! More than you need. And (field-)recording your own has never been easier either. And the Amen break has still never been prosecuted... :)

  • 0
    MikeKayMikeKay Sydney, West IslandPosts: 14

    @hexagon5un said:
    Fair use will not help you.

    Yep, especially since the country in which I live doesn't have the legal doctrine of Fair Use.

    (Are you confusing the use of educational material with a use for educational purposes?)

    My mistake - I misread a line about Fair Use from the Columbia University Library (https://copyright.columbia.edu/basics/fair-use.html). I think that's a good description of the concept for non-legal eagles, if read correctly.

    If you care about being strictly immune to lawsuits, you must clear all samples, period.

    ...if the sampled material is still under copyright. Ultimately, I wish it was much easier to research copyright, but that's a lot of government paperwork to digitise.

    Actually mounting a court case costs time and money, and if you're not worth it, you're not worth it. (No offence.)

    None taken. Even if DMCA takedown was the potential worst that could happen to a musician/producer, it begs the question, just because you can use a sample, should you?

  • 0
    broughtonfilmbroughtonfilm New YorkBeta Tester Posts: 58

    @Percivale said:
    Samples are basically what the name itself implies, here as bits of audio (read till end). Who is to say that the author did not sample (pun not intended) from elsewhere in the first place. Add in the plethora of FXs and other tweaks and you would not be able to tell for sure the origin to ascertain ownership. How short should a sample be before it is deemed as non-exclusive for all intents and purposes - 3 seconds, 2 seconds or ½ second? Single-cycle waveforms anyone?

    Sorry, but you are bending this too much your way. It does not matter if the song uses samples or not, it is not ok for you to sample it and release unless you have the samples cleared. Why all in a sudden creativity, composition, which samples are used together, in what key, harmony, tempo, etc. does not count as author’s contribution and should be protected by copyright? Not to mention that maybe they actually paid a lot of money to use those samples? You really don’t sound fair.

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