Understanding Sampling, Cover Songs & Derivative Work

by George Howard, Read more articles at Artists House Music or follow George on twitter @gah650

Video Response to Questions Posted

Overview

When you are the author of an original work, and you fix that work in a tangible medium (write it down, record it), you are automatically granted six exclusive rights. One of the works that you don't hear about very much is the right to create a “derivative work.” It, like all the other rights, is codified in the United States Copyright Act in 17 U.S.C. § 101:

A “derivative work” is a work based upon one or more pre-existing works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”.

Put simply, the only person who can create or grant the rights for a derivative work to be created is the holder of the copyright for the original work.

Translations

When, for instance, The Gypsy Kings decided to do a version of The Eagles' “Hotel California,” sung in Spanish (as seen in The Big Lebowski), it was a translation of the original work, and as such, not a cover. Thus, the Gypsy Kings had to get permission from the copyright holder(s) of “Hotel California” in order to create this derivative version of the work. Remember, you can cover any song that has been publicly released without getting anyone's permission so long as you don't make substantive changes to the lyrics or melody, and you abide by the compulsory license requirements (for a refresher on this topic, please see here).

A translation, however, is deemed to be a substantial change, and therefore a derivative work, which, as an exclusive right of the holder of the copyright, requires permission to be granted.

As you can see from the above, it's not just translations that are deemed derivative works, and require permission from the holder of the copyright. If you, for instance, wanted to create a movie or TV show based on a song, it would be deemed a derivative work.

Samples

However, where I believe derivatives will be relevant to most readers is with respect to sampling.

Sampling is one of the most confusing elements of the music business, but through understanding derivatives it will help you better understand both the rules around samples, and – depending on which side of the fence you're on (sampler or sampled) – the money to be paid/made.

A sample is when you take a piece of an existing copyrighted work and combine it with another work. If you refer back to the language from the Copyright Act regarding derivatives you'll see explicitly where samples and derivatives overlap: “…any other form in which a work may be recast, transformed, or adapted.”

Because a sample clearly involves “recast[ing], transform[ing], or adapt[ing]” one work in order to merge it with another work, the copyright holder of the work being recast, transformed, or adapted must grant permission for this to occur. Simply put, because a sample is a derivative work, you cannot sample someone else's copyrighted work without permission.

Note that there are actually often two copyrights that must be addressed when a work is sampled (and thus two copyright holders you must get permission from in order to avoid infringing):

  1. The copyright to the song itself
  2. The copyright to the version of the song (i.e. the master)

For instance, if you want to sample the guitar riff from a Beatles song, you would need to negotiate a deal with the copyright holder to the song (The Beatles' publisher(s)), and negotiate a deal with the copyright holder to the version of the song from the recording from which you are sampling (The Beatles' label). Either party can reject the request and not grant you the right to create a derivative work.

Should they not reject the request outright, they will negotiate with you to attempt to come to terms allowing your creation of a derivative work. Unlike mechanicals there's no statutory maximum rate for samples, so publishers and master holders will get everything they can – including the rights to the copyright of the song that is using their sample – in the negotiations.

A lesser-known approach to sampling is often referred to as a “replay.” This is where a derivative work is created and used as part of another work via a re-performance/re-recording of a piece of the original work.

For instance, if an artist, instead of taking the sample of a guitar riff from a Beatles record, played the riff herself and then used that within her own song, she'd create a derivative work of the composition (the song), but not the master; i.e. a “replay.” In this situation, the person creating the derivative “replay” would need to negotiate a deal with the copyright holder of the song (i.e. the publisher), but not with the copyright holder of the recording (i.e. the label). Of course, the publisher can reject the request.

If you do not negotiate the rights to create a derivative/sample work with the relevant copyright holder(s), you will be infringing on the exclusive right of the copyright holder(s) to create a derivative work, and you can be sued.

It cuts both ways, of course, should someone want to sample your copyrighted work, he or she will have to negotiate a deal with you in order to do so, or risk you suing them for infringing upon your exclusive right to create derivative works.

A note on the fair use defense of “transformativeness.”

The Supreme Court held in Campbell v/ Acuff-Rose Music Inc. (i.e. the “2 Live Crew Case”) that while 2 Live Crew's unauthorized use of elements of “Oh, Pretty Woman” (the song popularized by Roy Orbison, and copyrighted by the publisher Acuff-Rose) constituted a derivative work, the infringement was defensible due to fair use, because 2 Live Crew's version provides new insight to listeners, and thus represents socially important commentary (this is very similar to/overlaps with the fair use defense of parody).

This transformativeness fair use defense is likely what Girl Talk will rely on should any of the various copyright holders sue him for infringing upon their exclusive right to create derivative works.

There is no such thing as a “small enough” sample

Don't be confused with respect to misinformation regarding the right to use small amounts of another's copyrighted work in your composition – i.e. a “short” sample – without legal risk. There is no clear standard for what is considered de minimis usage, and thus you are at risk if you misappropriate any copyrighted material and create a derivative work in the form of a sample in your own composition.

Ignorance is not a Defense

Similarly, ignorance is not a defense. If you, create a derivative work without knowing or intending to do so – e.g., you put a riff in your work that is so similar as to be seen as a derivative work of another's copyrighted material, but you didn't know about this prior work – you are still infringing on the copyright holder's exclusive right to create a derivative work. However, if you can show that there was no knowing or intentional infringement, the damages will be less than if you intentionally and knowingly infringed.

Summary

The exclusive right to create derivative works is a lesser-known exclusive right that is granted to authors of original works who fix their work in a tangible form. However, as can be seen – particularly with respect to samples – it can be a very important and lucrative right.

Please ask any questions you have in the comments, and I'll do my best to answer them.


George Howard is the former president of Rykodisc. He currently advises numerous entertainment and non-entertainment firms and individuals. Additionally, he is the Executive Editor of Artists House Music and is a Professor and Executive in Residence in the college of Business Administration at Loyola, New Orleans. He is most easily found on Twitter at: twitter.com/gah650

  • http://www.rythmiklove.com Lee

    One thing I was wondering about, what about people using samples but not selling the song? I have heard on numerous sites songs that have bits and pieces ripped from various places (rnb, hip hop, rap, etc) and the people releasing the songs would be in a hobby capacity.

  • Wonderingmind

    What if you use samples that you purchased, the person who created the sample has released the royalites and allows you to use their samples in your music. Because they released the royalites means I paid one set fee and I own them nothing else. They still own the copyright to the sample(s) but I own the copyright to the song. Can I now submit my song to get it Copyrighted? Does the person(s) who created the samples need to be created on your song?
    Thanks.

  • http://www.myspace.com/535226419 Eric C Bruggeman

    Often, deejays will have unauthorized copys of an artist song they play, without the name or title of the song or artist on the vinyl pressing or sleeve, known as a “white Label”, due to the lack of information. Many artist don’t mind the free attention, while some established artists throw a tantrum if caught. Other artist like “Girltalk” use such small snippets of the songs(8-15 seconds) in rapid succession, that it makes a poor case for record labels to sue, and in and of itself is an artform in the “Mashup” community.
    Bmaniphesto

  • http://www.songclearance.com Alex Holz

    @Lee,
    Even if you’re not selling the song, usage alone requires clearance.
    There are royalty-free libraries out there where you can pay a flat fee for sample-usage (as well as completely free options), though any sample usage requires clearance (in exchange for compensation, credit, and often both).

  • L3SSON LAST

    What about vocal samples from movie or radio. Radioactive goldfish, Ministry and so on are notorius for this type of sampling. Is it illegal. Is sampling George Bush saying Evil or Obama saying Evil Illegal. Or perhaps sampling the stuff they say on the radio between commercial breaks.

  • http://www.youtube.com/victormatell Victor

    What is the laws on “Tribute Videos.” If someone created several of them. Dedicated to the artist that is tributed. If someone create a montage of video clips. Add the clips to make a new work. Where do the copyright laws lie?

  • James McParty

    With all due respect to Mr. Howard, I find the way the TuneCore newsletter describes this content to be quite frustrating. This was pitched as a “how to” on clearing samples / licensing, not a cautionary run-through of copyright law.

  • FleetwoodMac

    Can you explain step-by-step how to clear a mechanical license for a cover song through Harry Fox? For example, It seems confusing when they ask about units that are expected to sell etc, when those numbers are unknown for a digital release from an unknown artist.

  • Khari Cummings

    If I want to “replay” elements of an original song, how would I go about finding the original copyright owner’s contact info? And can you explain the steps necessary to complete this process? Thanks.

  • http://www.tbasedmusic.com john d carter

    I would like more information on “derivative” work. Taking a theme and making an orchestral instrumental or other elaborate rendition of someone else’s song. Is this a negotiated fee? Is the derivative work copyrightable? Does the copyright belong to the the arrangement or the original artist? What if original music is introduced in the arrangement, who does that ultimately belong too? etc. Also, fees… who sets them, who gets them, etc. Thank you for your information. It is informative.

  • http://www.sonofabeachmusic.com Gary

    @Khari Cummings – To find the copyright holder of any “musical” work, the easiest method is searching the song title through the performing rights organizations, such as ASCAP, BMI, and SEASCAP (I’m not sure if the last acronym is 100% right, but most everything can be found through the first two). They will list the copyright holder, or their representative (the publisher), and you can contact them through email or snail mail… You could try the phone, but that is a frustration that you don’t normally want. You can also search the title through the Harry Fox Agency, or through the US Copyright Office of the Patents and Trademarks Office in DC… Copyright Office is the truly mind-numbing way to search titles, so use with caution.

  • smoove

    basically you cant sample anything unless you negotiate a price no matter how small! apart from royalty free / none payment samples… does this apply to recordings 50 years old?

  • HCDJ

    America’s sampling laws how horribly outdated and ridiculous. Hip-Hop and dance music use so much and the laws should have been updated in the 90′s at latest. Sampling-wise, you can get away with it if you change the original so much no one can tell where it’s from.
    There’s a excellent documentary about this called “Copyright Criminals”. It shows both sides of the music world POV on sampling.

  • rodney cain

    thank you for the information.

  • http://www.engeltone.com/ Bastian Vel

    I can understand this.
    But… Isn’t this affecting creativity in a negative fashion sometimes?
    In the classical period, many music masters used melodies from other composers in their own creations freely.

  • http://www.rythmiklove.com Lee

    Thanks for answering my comment, I’m glad I don’t use samples, and after reading this, all I can say is I’ll probably never use a sample from other’s songs, One concern is being able to be sued despite being oblivious to doing it. – I can understand that it would be hard for a court to believe that you had no idea, but it seems very very strict. (However, if it was my song being sampled, it turns out a good thing for my rights – I’m on the fence on this one)

  • Dread

    Hey there, just wondering what the deal is with sampling spoken words from other media such as the news or movies or speeches for example?? I have a killer sample of Malcolm X giving his famous ‘I am a field negro’ speech, and was wondering what the implications are of using the sample?

  • http://www.whatsthesynopsis.com Frank Synopsis

    My understanding is….If you create a derivative work based on public domain music such as a classical Beethovan piece, no harm since their is no copyright holder. There are many other forums and site that talk about copyrights and your rights. Bottom line…If the work was published before 1923, it’s in the public domain. So use it, its free to use, modify, mold and shape, you could even perform the piece in its entirety and sell it on iTunes with no reprocussion as long as its the original piece and not someone elses derivitave or simplyfied version that you play. Enjoy. Classical composers of the 18th 19th century new what was up….the industry and people nowadays are just greedy.

  • http://blog.tunecore.com/2010/10/video-replies-to-derivative-works-questions.html Mike (TuneCore)

    George Howard recorded some video replies to questions on this post. Follow the link to view the anwers: http://blog.tunecore.com/2010/10/video-replies-to-derivative-works-questions.html

  • Carlos Guerra

    Is writing music in the style of another artist infringement,even if the music is my own creation?

  • kathryn kj burnett

    The current monopoly in the industry is prohibitive to exercising ones ownership rights. A lawyer costs anywhere between $30,000 and $100,000. A case for one song that is infringed costs half a million to try. What is the use of a law if it cannot be enforced?

  • MT

    Can you comment on DJ remix sets and how this applies to Podcasting music sets?

  • anonymous

    My doubt is, if i remake a infringing song,can i still have a copyright on my new work, although the original work from which i have remade has infringed the copyright that is owned by the third party?
    eg: if A has given B a right in a music that A has infringed from a third party C, then can B absolve itself?

  • Nicko Mc

    Hi, I understand all about copyright, derivative works etc, and after much research and discussion with the PRS I have discovered how to licence cover songs for distribution. One thing I’m still not sure of though… if I get permission from an artist/publisher/copyright holder to produce a derivative work, can I distribute it on iTunes UK via Tunecore? And if so, are the royalties paid via the same method and at the same standard rate for any ‘ordinary’ cover version of a previously released track in the UK? Thanks