Sampling Confidential: Anything To Declare? (Part 1)
The first of our new series on the very live issue of sampling, taking all the technicalities into account. Dom Foulsham begins with an examination of the law as it currently effects all involved. An indispensable guide, if you're concerned about clearance and want to avoid that nasty little rubber glove
In the first of three articles our industry guru Dom Foulsham explores and explains the modern music minefield they call, simply, sampling...
Amidst the retrogression of the rock'n'roll compilations, the jazz revivals and the blues re-unions, the evolution of sampling as a dominant force in contemporary music has come as a welcome breath of fresh air. In little more than a decade, sampling has gone from being virtually a black art to becoming a fine art.
Yet even after Paul Hardcastle's chart- (and ground-) breaking electro-hip-hop workout - '19' - first stuttered the narrative of Vietnam documentaries over a militaristic dance beat in '85, the full potential of the sample as a musical building block and instrument of composition, was not fully recognised. It was, in effect, the street culture of mixing instrumental drum riffs from old records - the music they call rap and hip-hop - that gave birth to a far wider circle of artists who discovered in the early samplers an easier way of achieving the same thing.
Indeed it was the need to produce drum loops and break beats that provided the impetus for DJ-producers like New York's Larry Levine to move from using 7" records to 12", to drum machines, and finally to samplers. Why waste time programming a complex beat to rap over when there were machines that could engulf that riff - digitally - and spit it out with quartz-crystal regularity.
But of course, it was the availability of these cheap, sample grabbing machines to a mass market - and perhaps more importantly, the culture of the sampler outside the studio - that planted the legal minefield, which, five years on, has only just begun to be cleared. Albums like Coldcut's What's That Noise? with its Disney samples, and De La Soul's daisy age Three Feet High with its Gwen McCrae samples, television programme themes (...and the adverts between them) - and the dance music in all of them - shook music law into recognising the complexity of the subject.
So what is the official definition of sampling? Ironically it's not defined in any UK legislation, but it is commonly understood as "The taking of a portion or extract of sound from one permanent recording together with its subsequent use in another". So what if you've used samples in your latest and greatest drumscape; just how much of a snippet constitutes a sample? How much is using it likely to cost? Should you bother asking permission?
To begin with the last question: the answer is, unfortunately, yes - in almost all cases. As mentioned in previous discussions, the value of music lies in the song that was written, as well as in the recording itself - and the same is true of samples. The sample must have some musical value because it has been taken rather than 'created', and, since it has a value, to use it you must ask permission.
What many sample-seekers often forget is the crucial point that almost all samples have both a song (or publishing) value as well as a sound recording value. You may well find yourself having to pay the artist (or his label) for the right to sample a part of a recording - and also a similar (sometimes greater) amount for the right to sample the song on that recording.
This is by no means universal. Some samples need only a sound recording copyright clearance - an example might be that floor-shuddering "da-da-da-daaaa... da-da-da-daaa!" from Beethoven's Fifth Symphony. Some only require a publishing clearance - a sample taken from one of your own records, for instance, that might itself include a James Brown sample.
The explanation of the first example is simple. Beethoven, most people would agree, is dead. And has been so for, well... over fifty years anyway. In this instance there are no songwriter's (publishing) copyright royalties due, because you can only copyright a song up to and until fifty years after the songwriter's death (...sorry Ludwig). You must, however, pay a sound recording royalty to the performers of the track (ie. the orchestra). The second case of paying a publishing contribution to the original songwriter, is rare, but does occur when the sample you've taken has a songwriting value, but no sound recording value to you because you are sampling your own recording of a sample.
There are many instances when you need to consider one further clearance matter. What happens if you get permission from the record company (who own the recording rights to the record you want to sample) as well as permission from the publisher (who, remember, is responsible for collecting fees on songs and samples of songs) but you want to use the sample in a 'controversial' manner? For example, using a Malcolm X speech sample in a condom advert? Or sampling James Brown for a record which pokes fun at him? In any situation where the person being sampled believes there to be a misuse of that sample, he is entitled to refuse permission on the grounds of moral rights.
James Brown objects to the use of his samples in some hard-core rap records, while George Michael successfully stopped a Wham! mega-mix because the manner in which the sampling was done amounted to "distortion or mutilation of the original recording" (...that never seemed to worry Jive Bunny too much, though). Other artists like hallowed rockers Led Zep, and soul diva Anita Baker have never agreed to any sampling of their records, and Michael Jackson's more recent records - the rights to which he jointly controls with Sony - are also off limits to the S1000. Ironically there are parts of Jackson's early catalogue on Motown (which is not in his control) - that are easier to clear.
The refusal to allow the sampling of a record on moral grounds is encapsulated in two ways: the 'right of integrity', where you must show respect and consideration for the way in which an artist might want his samples used (and placed); and the 'right of paternity' where, at the request of the artist you're sampling you must include the necessary credits detailing the origin(s) of the sample(s) you have used.
But when is a sample not a sample? Surely a sample could be so small as to be not worth bothering getting clearance for? This is where we enter a grey area...
In theory, every sample that's ever used should be cleared, because sampling without permission is, purely and simply, theft of someone else's intellectual property. Yet in many cases rules of thumb operate within the industry. If the sample is distinct, say a James Brown "Good God!", then it has sufficient artistic value to warrant clearance. If, however, you sample a single snare from a record, and there is nothing in any way distinctive about the snare, then, clearly, it has little value.
Using this rule of thumb, some of the top sample clearance lawyers in the United States will - when presented with a list of samples used in a recording - ignore as many as half of them if they feel that their use will not be noticed. But of course such people are highly trained in this field and know exactly what to look for; applying the 'substantiality test' is no job for the amateur. That's why it makes sense to have tracks checked for sample clearance before release.
Having mastered a recording prior to manufacturing, it is necessary to approach both the publishers of the work and the representatives of the performers. By contacting the Mechanical Copyright Protection Society - or the MCPS (an organisation that represents the vast majority of composers and publishers in this country) they can help to clear the publishing (or songwriters) side of your sampling. You must write telling them your name (or the name of your band), the name of the track that will contain the samples, a name and description of all the samples you are declaring, and details of the record company and the publishers (or songwriter) of each of the tracks from which you have taken samples.
The MCPS then sends a sample form off to each of the samples' original owners which they trace through the National Discography - an impressive list of millions of song titles, together with the associated artists, songwriters, and record companies (where known) - and asks them whether or not they'll allow the sample to be used and how much they wish to charge. If successful in securing an agreement, the MCPS will then grant you the necessary license to release your record.
But what about the sound recording copyright? Well, the MCPS should also be able to help you contact the record company who owns this, but it is then up to you to agree a fee or a percentage of your earnings from sales of the record which has been made with the aid of samples of their artist. Until this has been done, you are not allowed to release the record.
"At present", points out an MCPS spokesperson, "talks are afoot between the publishers organisation (the MCPS) and the recording labels organisation (the British Phonographic Industry) to simplify much of these procedures". This is likely to be done by creating a single sample clearance form that covers the publishing, sound recording and moral rights clearance of each and every sample.
So how much should you expect to pay for the song and sound rights of a sample? Unfortunately, this is one of the hardest questions of all to answer. Some record companies charge a proportion of the sampling artists song and sound recording royalties. For substantial samples - like the Shut Up And Dance 'Raving I'm Raving' single, the act ended up paying half of its publishing income back to the owners of the sample they'd used. (And in the case of a number one record, that could add up to an awful lot of money.) In other cases, James Brown might only ask you to pay around 2% out of your 8.5% songwriter's royalty for a reasonably small sample from one of his recordings - together with, perhaps, a lump sum payment of say $1000 for the sound recording royalty.
This latter payment is a straight, one-off buy-out of the sample clearance. In other cases, some US labels operate a roll-over system whereby you repeat the $1000 payment, for (say) every 250,000 extra units above the first 250,000 records that you sell. "Other labels, like Sal Soul, have a reputation for charging the earth for their samples, simply because they do not like sampling!" says Hope Carr, a sample clearance specialist based in New York. Some companies like Disney have only just begun issuing sample clearance, and then, only to artists on their own labels.
But whilst America abounds with sample clearance agencies, none currently exist in the UK. The reason for this is that over here the MCPS keeps accurate records of songwriters and the songs they own, so publishing clearance on samples is a lot easier. "Unfortunately in the States, our MCPS equivalents, BMI and ASCAP aren't as organised with their records!" says Carr. "I've often had to go through the MCPS in London in order to track down some of the owners of these works, for American acts!" she points out.
As you've probably realised by now, the development of a seemingly innocuous piece of hi-tech kit has led, in only a few short years, to the establishment of a highly complex network of sampling practices and policies. The story may begin with an S1000, but unless you want it to end with a court injunction (or worse!) understanding your obligations to the artists that have provided us with the 30-year musical legacy from which we sample, is essential for the wellbeing of all concerned.
So much for the legalities. Next month we'll take an in-depth look at the tricks of the trade and learn how the top producers go about getting their samples. The author points out that all contract rates, fees and methods of trade mentioned in this article are intended purely as guidelines and should not be regarded as authoritative figures or universally applicable methods of business.
Feature by Dom Foulsham