Copyright Law and its effects on electronic sample based music

Kieran Nolan
Professional Issues
11 January 2002


The introduction of electronic music instruments and methods of digital audio processing over the last twenty years have changed irrevocably the traditional perceptions of what a musician carries out in producing their art.  Music production has expanded beyond the established conventions of acoustic instrumentation and voice through the creative possibilities of music sampling.  The proliferation of the sampler as a cost effective and versatile instrument has made it as common in the recording studio as the microphone.  These instruments of controversy[1]” are utilized across production work in many musical genres, from pop and rock music, to television, film and radio soundtracks.

What is sampling?

The technique of ‘sampling’ is a key technique in electronic audio that is a constant source of legal concern for record labels.  Sampling involves recording a segment of digitally recorded audio, whether it is a fraction of a second or several minutes duration, and using this piece of isolated sound as either the part of another musical track or as an entirely new piece by itself.  The “Words of Art” list by Robert S. Belton [2] describes sampling as follows: “Technology now permits musicians to make digital recordings of any sound and play them back, thus emulating any combination of instruments or noises, with or without further electronic manipulation.

Where does sampling become a legal issue?

To use an electronic instrument (or indeed an acoustic instrument) to play back part of a song, such as a drum break or guitar riff is legal.  After all, this is how music is made.  People learn to make music by copying elements of songs, adding their own twist and developing a style of their own.  However when a sampler is used to copy this sound from a recording, it is playing back an exact duplicate of a recording, and therefore violates copyright protection law.

Copyright for sound recordings

Copyright refers to the rights that are initially owned by the composer and/or recording artist until he or she gives those rights to someone else.  As soon as a composition has been committed to a tangible form (i.e. a storage medium such as a recordable cd) the owner has the sole right to copy it, and to prevent the unauthorized use of the material by others.  Basically a copyright gives a musician or music publisher a limited monopoly over their works.
There are two main distinctions of copyright for sound recording.  The first is Compositional Copyright.  This refers to the underlying composition (i.e. the song), every time the recording is copied the composer is entitled to royalties.The other category is Sound Recording Copyright (i.e. the record), this refers to the rights over the physical recording of that composition.Compositional Copyright and Sound Recording Copyright are represented with the © and (p) symbols respectively.  Although it should be noted that in the United States placing these markings on a music recording are no longer necessary, the law still protects the owner regardless if the symbols are shown on the recordings packaging or not.

The widespread use of sampling, and the money at stake

In 2000 global music sales amounted to US$37 billion [3] and the large amount of this product that in some way incorporates samples has led to the establishment of several legal companies dedicated to providing sample clearance services.  The UK based is just one example of a sample clearance house, their motto “don’t waste your time clearing samples – let us do it” aptly summing up their ethos.  Through a web-based form, the user can receive a quote on any sample.  All that is required is to specify the track title, the composer and whether recordings rights and/or publishing rights or ‘all media rights’ are required.  Once the send button is hit the request is emailed to and their team will reply with a price quote.

How not to deal with sample clearance (i.e. ignoring it)

A key example of the importance of sample clearance and a case which brought much media publicity to the case was in 1991 when the New York rap artist Biz Markie released a song called ‘All alone (naturally)’ from his album ‘I need a haircut’ on Cold Chillin’ Records.  Not only did it share the title of a song by Gilbert O’Sullivan but it also sampled the melody of O’Sullivan’s 1972 hit.  O’Sullivan sued Cold Chillin’ Records, and whilst Biz Markie had ‘borrowed’ just 3 words and 8 bars of the original song, these formed an integral part of the original.  The judge ruled in favor of O’Sullivan, citing the unauthorized use of these elements from “All alone” as theft.  What resulted from this case was the album being withdrawn and re-released with the offending song cut out and a substantial settlement fee paid to O’Sullivan.  Whilst the media interest sparked by the case provided Biz Markie with a lot of publicity, the financial damage incurred nearly destroyed his career.  His 1993 follow up album was entitled “All Samples Cleared” (an obvious reference to his previous legal woes) and was his last record released until the end of the nineties.

The straight and narrow approach to sample copyright & Public Domain

An example of the legal route to sample use is the case of recording artist Moby, who used the archived recordings of Alan Lomax as an integral part of his recent album ‘Play’ (1999 BMG/V2). Lomax was a musical folk historian who traveled the south of the United States in the first half of the twentieth century compiling an archive of recordings of the indigenous music of the area. 
After much time and expense spent enquiring into the copyright details of this material Moby found out that the recordings were in the public domain all along due to their age, thanks to a US law which states “Music and lyrics written by an American author and published in 1922 or earlier are in the Public Domain in the United States.Public domain means that nobody can claim ownership over a song, so everyone is free to use the piece of music.  Also because nobody owns the song, profit may be made from it without the payment of royalties.  As an added advantage if somebody creates a piece of music that is a new version or derivative of a public domain song, they are free to copyright their version.  Despite the fact that sample clearance is now an everyday task for commercial music labels, cases still arise where companies fail to follow legal guidelines for sample clearance, despite the fact they have sufficient resources to do so.  A gambling type attitude exists where certain artists will use a sample, not declare it, and sit back assuming that the copyright holders will not notice.  It often happens too that the copyright holder may withhold sample rights simply because they personally do not agree with how their work is been interpreted, from an artistic or ethical point of view.

Subjective objections to sample rights requests and how to gamble your music careerThis excerpt from an interview with vocalist Evidence of Los Angeles based band Dilated Peoples shows an example of the frustrations faced by musicians seeking copyright permission and how samples can sometimes be rejected simply because the owner has a personal rather : ”Sample clearance sucks.  It’s some behind the scenes bullsh*t.  I understand if you loop someone’s shit with no creativity, you’ve got to clear it.  But if you take a snare, or one note and bend it, come on.  I’m not clearing that.  We had this one song called ‘Pushing Limits’ sampling Bobby Gentry and she just wouldn’t let us clear it”[4].

If they do notice, it is assumed that they will not waste resources on pursuing a court case that will cost more money than the valid compensation or that individual sued may not be able to pay up.  However if substantial money is been made from through illegal sample in a use then inevitably the owners solicitors will come knocking at the door.

In June 2001 US record label ‘Rawkus’ along with their distributor ‘Priority Records’ and recording artist ‘Pharoah Monch’ were sued for half a million dollars by Japanese movie studio Toho who sought compensation for “copyright infringement, irreparable harm and seeks damages, court costs, and attorney's fees.[5]”  This court action was brought about due to use of an unauthorized sound sample from Toho’s famous ‘Godzilla’ movie.  This easily recognizable sample (to those who have seen the film Godzilla) is looped to provide the main part of the instrumental from the best selling Pharoah Monch track titled ‘Simon Says’.
Released in 1999, this song had a limited local distribution without attracted little notable media attention but over time its fame gathered momentum, becoming internationally known and eventually coming to the attention of Toho.  A victim of its own success, ‘Simon Says’ was eventually withdrawn from all record stores and all remaining copies of the record destroyed, as the result of an injunction requested by Toho’s lawyers.A similar example closer to home happened in 1997 when best selling Donegal singer Enya took up a lawsuit against New Jersey band ‘The Fugees’ prompted by their unauthorized use of part of her song ‘Boadicea’ (Atlantic Records, 1986).  Nowhere in the credits was the source of the sample or anyone who had worked on the track ‘Song for Boadicea’ mentioned, making the matter of successfully suing Sony Music an open and shut case as far as Enya’s lawyers were concerned.Besides the indignation of the blatent use of here music without any sort of acknowledgement, Enya also expressed worry that her composition was been used in a negative context.  “I was angry, yes. Rap bands have their albums labelled because they may contain bad language, or whatever. I was really worried about that because of my fans...[6]" When it was established that the Fugees musical ethos was anti-violence Enya was content to reach an agreement that would allow Sony to keep the version of  ‘Ready or Not’ incorporating part of her song ‘Song for Boadicea’ in circulation.Realizing that they would face a pummeling from Atlantic’s legal team Sony agreed to an out of court settlement.  As Enyas manager Nicky Ryan said in an interview with the New York Times “I can say that a settlement will cost dearly, but nothing like the havoc a court case would have wrecked on them”[7].The agreement reached involved the payment of royalties to Enya and also the inclusion of a sticker on all future copies of The Fugees album ‘The Score’ that states We are very grateful to Enya for her kindness and consideration in allowing us of her track 'Song for Boadicea,' from her album The Celts, which appears on the song 'Ready or Not,' which was used initially without her permission."

Copyright Loopholes ‘Fair Use’

Considering the aforementioned cases it would seem that in order to carry out any sampling from a non public domain source you need to have substantial financial resources at your disposal.  The copyright loophole of ‘Fair Use’ is one method that can be used to avoid targeting for royalty payments.
The visual artist Erik Pauser and ‘video percussionist’ Johan Soderberg of Swedish dance music collective ‘Lucky People Center’ took advantage of the ‘Fair Use’ provision in copyright law for the production of their audio video work entitled ‘Information Is Free’‘Information Is Free’ is a collection of music videos created by splicing together recorded clips from television broadcasts.In a television interview in on MTV in 1994, Lucky People Center were asked about how they could use copyrighted television footage in their own work without encountering legal prosecution.  LPC explained that they had exercised their “right to quote.”  Since the end result of their work serves as a piece of commentary on the issues brought up by the source footage it is in keeping with the copyright provision of ‘fair use’ that makes exceptions “allowable for such purposes of teaching, research, news reports, parodies, and critiques provided that the value of the copyrighted material is protected.”[8]

’Information Is Free’ also make extensive use of video footage taken from television.  By this is do not mean taping with a vcr but where a video camera is set up in front of a television set, recording what is on the screen.  The use of the broadcast footage is justified by the fact that it is been displayed through the perspective of a television viewer.  This casts commentary on television culture and therefore falls under the protection of the ‘fair use’ exception for critiques.

The last line of copyright avoidance, using camouflageFrequently musical artists encounter a creative roadblock caused by copyright restrictions.  Rather than seek copyright permission skilled producers use creative techniques to rework beyond recognition any uncleared samples they use.  Through digital sound processing techniques the samples can be “sped up, slowed down, chopped, faded, flanged, chopped and/or rewired - so that they barely resemble the original.”[9]

This method is nearly foolproof and yet there is an example of it backfiring and causing legal concern.  To provide the melody for the track "You Know My Steeze", famed producer DJ Premier chopped up a guitar lick from a song called "Drowning in the Sea of Love" by Joe Simon.  Because the sample (unlike the aforementioned cases of the Fugees and Pharoah Monch) was heavily manipulated and was from an artist that was not of mainstream recognition (like Enya), it was considered a safe bet that sample clearance could be avoided so it was not credited.  This certainty was dashed when events took an unexpected twist. A few weeks after the release of 'You Know My Steez' eager producers and record collectors deciphered the source of the sound and bought up all the cheap Joe Simon records to do their own sampling.  This in turn caused opportunists to produce bootleg copies of the record to meet the demand.  How this becomes a problem for DJ Premier who originally sampled the record is that these bootlegs bore credit details along the lines of "as sampled by DJ Premier", basically naming him as the culprit in public.

Freedom of information and artistic integrityIn this online age where copyrighted material is traded freely across the internet with no relent (especially music compressed as mp3 audio files), there are many who would present the argument that information is free and no-one should have to pay money to use an excerpt from someone else’s record in their own composition.  Yet if the same person were to be confronted by their employer and told that because they gained their knowledge and expertise through a free education system so they would not longer pay them for this ‘free information’ then no doubt their outlook on the matter might change somewhat.If someone directly lifts from another’s copyrighted property it is theft, whether it sound or otherwise.  It does not apply just to sampling but in every method that music is played, not only that but if a sound sample is not used in a creative manner it does not reflect well on the artist. “At the end of the day, a lot of people have in the past have copied and ripped off, and will do in the future, other people's music, whether it's played or whether it's sampled, whatever. There's so many that have taken an idea within reggae, within hip-hop, within rock that is just regurgitated, but packaged differently. So I have no respect for that.[10]

In conclusion, reviewing the options available and consequences of their neglect

If you want to use sampled material without facing clearance royalties you have four options open to you:

- Use public domain material

- Use the samples in the context of ‘Fair Use’ (i.e. for teaching, research, news reports, parodies, and critiques).

- Electronically Process the sound to a point where it becomes significantly different to the original

- Beg! If the original artist is feeling particularly benevolent he or she may allows their work to be used royalty free. 
If none of these options apply then the use of a sample clearance houses services is the only legitimate way to go.  Since the litigation by Gilbert O’Sullivan against Biz Markie and Cold Chillin’ records in 1991 any notions of free for all sample plundering in commercial music production have been swept away.  No doubt many will choose the unofficial fifth option by stealing the sample and still manage to evade the copyright owners attention, at least temporarily because if this gamble goes awry then they could face though their severe damages to their finances and career.

Web Resources

The Ethics of Digital Sampling: Engineers Discourse" by Thomas Porcello.
Popular Music Vol. 10/1 (1991)

'While You Were Sleeping' magazine
Issue #15.  Page 72

Words of Art: The S_List

The International Federation of the Phonographic Industry

‘Pharaohe Monch Facing Lawsuit’ – news

‘Breaking the Silence’ by Alan Corr, RTE Guide

‘Enya takes on the Fugees’ Irish Voice (USA) 18th February 1997


'Backspinning, Signifying' by Joe Allen.

Pure Creation : Deconstructing DJ Vadim's Sound

Soulstrut – ‘I Need A Paycut’ – by Courtney Bryant Sample Clearance Services


[1] The Ethics of Digital Sampling: Engineers Discourse" by Thomas Porcello (1991),
from Popular Music Vol. 10/1.

[3] From the International Federation of the Phonographic Industry website -

[4] While You Were Sleeping’ magazine issue #15.  Page 72

[5] ‘Pharaohe Monch Facing Lawsuit’ – news

[6] ‘Breaking the Silence’ by Alan Corr, RTE Guide.

[7] ‘Enya takes on the Fugees’ Irish Voice (USA) 18th February 1997

[9] ‘Backspinning, Signifying’ by Joe Allen.

[10] Pure Creation : Deconstructing DJ Vadim's Sound’

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