Music Sampling and Beat Licensing
Artists and producers who specialize in hip hop, dance and some other musical genres have long established sampling and beat licensing as part of the culture. Even the casual music fan is sometimes capable of picking up what are known as “samples” of other songs in new works.
With that said, there has always been a lot of questions around the process and requirements of receiving proper approval to utilize another musician’s work as a “sample” in the artist’s new work. In addition, as more and more musicians have their “beats” or instrumental tracks available for sale, the necessity to ensure these arrangements are handled properly becomes even more critical. We will now examine each of these topics in turn.
Typically, a copyright holder in a track, which may be the featured artist on a sound recording, has the exclusive right to publicly sell, distribute, and license the track to others. In order for another musician to utilize an entire existing track or portion of one, a proper agreement must be entered into between the parties. Such a written arrangement is referred to as a “license” and is a document that provides a party with the right to do a specific thing.
A license may include the right to publicly distribute and monetize a song via physical or digital copies or via a music streaming platform. It could also include permission to publicly perform the work on the radio or live, in concert.
There are two common situations within the music business where is it imperative that an individual acquires the proper licenses. These are when a musician engages in music “sampling” of existing material or an entire track and when an artist purchases a “beat” or instrumental track from another. We will now explore each of these situations in turn.
What Is Music “Sampling”?
Music “sampling” is best described as using a specific portion or verse of another’s song and/or other recorded material and incorporating it into an entirely new piece. The actual amount used varies from situation to situation, as an artist may use as little as merely mixing in an existing unique drum combination or guitar rift. They may utilize the entire chorus or a complete verse from another song.
This action, in simplest terms, can be viewed as the musician literally “copying and pasting” a portion of another’s existing sound recording into their new recording.
While this may seem simple, unlicensed instances of this practice can subject a creator to potential liability for copyright infringement. However, there are ways to avoid potential liability by obtaining proper permission to utilize the “sample” of another’s work.
How To Obtain “Sample Clearance” For An Existing Record?
In order to properly and legally “sample” another musician’s work in an artist’s track, the sampling artist must obtain a “sample clearance” from all of the appropriate owner(s) of the original recording and underlying musical composition.
As we have discussed prior, there are two copyrights in every song — the sound recording (typically administered by a record label, e.g., Atlantic Records) and the underlying musical composition (typically administered by a music publishing company, e.g., Universal Music Publishing). This means that a party wishing to “sample” or otherwise incorporate another’s existing material must obtain permission from both of the piece’s copyright owners. This means that a musician must enter into a licensing agreement with each owner in order to legitimately utilize a “sample.”
Generally, in order to determine the owners of each copyright in a composition, a musician should start by accessing and searching through the U.S. performing rights society databases on these organizations’ websites (i.e. ASCAP or BMI). These repertoire databases generally list all the relevant songwriters and producers as well as the contact information for the music publisher of a particular track.
Typically, these databases list the direct contact information for the listed party; and, if the information is not listed, a musician trying to find the correct contact information should focus on internal departments at the specific company. Some of these include departments that handle “licensing,” “sampling,” or “clearances.” That is because those are the individuals and the departments that generally handle the third party licensing of finished recordings to others.
Once a musician determines the appropriate rights owner, they should request a “sampling” license. This request should generally include:
- How long the sample used in the new track is (i.e., how many minutes? seconds?);
- What part of the song the artist plans to “sample” (i.e., the whole chorus, a drum loop, a small verse, etc.);
- How the musician is planning to use the sample (solely replacing a chorus, distorted in the background, continuously looped, etc.);
- The number of units that they intend to distribute; and,
- What types of medium the artist will use to distribute the new work (i.e., CD, vinyl, digital downloads, ringtones, streaming, etc.).
In addition, some owners may also require that the individual wishing to “sample” an existing work, provide an actual copy of the new recording for the rights owner to listen to prior to granting any license for the requested material. Ultimately, the decision of whether to issue a license or not is up to the owner, so, the more information that is provided to them, the better the chance of a license being issued.
Once a musician has properly requested a license to “sample” an existing work, the actual details of the license need to be agreed upon. A typical sample license may include an up-front license fee that is paid to the original owners as well as potentially including a royalty owed to the original artist on each recording sold. In some instances, such as when a substantial portion of the original track is utilized or when the artist is extremely well known, the original owner may also acquire an actual ownership interest in the new recording.
Additionally, licensing deals are sometimes made on a “flat-fee” buy-out basis. In these cases, the musician wishing to “sample” the existing works just pays a one-time fee to the track owners without any additional royalties and without allocating any ownership rights in the newly created work.
There are a variety of factors that may determine a licensing fee. Some of these include:
- The commercial success of the original song,
- The success and notoriety of the original artist that is being sampled,
- The success and notoriety of the sampling artist,
- The length and amount of the sample,
- How the sample will be distributed (i.e., downloads only, streaming only, etc.), and
- How the sample will be used in the new recording (i.e., the entire verse played throughout the song, a drum beat “looped” within the instrumental, etc.).
Generally, the more famous the original track is and the longer the sample used is, the larger the license fee may be. As with most things within the entertainment industry, an artist’s bargaining power comes into play because the alternative (not licensing the “sample”) could end up with litigation. In such instances, the “sampling” party may end up incurring more significant litigation and legal costs, especially if the sampled song ends up being a commercial success.
What is “beat leasing” and “beat purchasing”?
Another common licensing situation encountered by musicians within the music business is the recent trend of producers and other beat-makers creating and selling their “beats” (instrumental tracks). There has been an influx of new websites and individuals publicly advertising and selling their created instrumentals. In most cases, the transaction between the instrumental creator and the third-party who desires to utilize the material is in the form of a license and is either a “lease” or a full purchase of the instrumental.
The first consideration a purchaser must take into account when buying an instrumental track or “beat” from another is whether the track is being “leased” or “sold” to them. This determines whether the issued license is an exclusive or non-exclusive one. Typically, when a creator “leases” a beat to another, the purchaser receives the non-exclusive right to utilize the instrumental and reproduce, sell or otherwise publicly distribute finished works containing the beat for a specified period of time (i.e. a month, a year, a few years, etc.).
A beat “lease” still permits the original creator of the instrumental to sell and issue other non-exclusive licenses to other musicians for the same instrumental track as the one purchased. In these situations, if the purchaser wants to continue utilizing and exploiting the recording that contains this leased beat after the expiration of the time period, the purchaser would have to enter into an additional agreement with the original work’s creator.
However, if the individual wishes to acquire the exclusive right to utilize the beat for an indefinite period of time, an instrumental track purchase agreement is necessary. This arrangement prohibits the original creator from re-selling the same instrumental to others and provides the purchaser with the sole and exclusive rights to the instrumental work for any purpose the new owner desires.
Generally, when negotiating these types of licenses and the appropriate license fee, it is important to discuss and agree on how the purchasing party plans to utilize the instrumental track. This includes whether the new track can only be used for a particular use (i.e. ‘for demo use only’, ‘for iTunes sale only’, ‘free on a mixtape’, or sending the song in an email), how many copies of the finished work will be created and made available for sale as well as determining which mediums (i.e. CDs, downloads, streaming) the track will be available on. Also, the parties must decide the applicable territory or territories that the finished work can be sold in (i.e., North America, Europe, “the universe”).
Typically, the cost to lease a beat is less than the cost to purchase the exclusive rights to the instrumental, as a non-exclusive lease allows the creator to monetize and sell the same work several times to different buyers. The “lease” or “purchase” fee for the beat can range from as little as $5 to $10 all the way up to several thousand dollars. The fee depends on the reputation and notoriety of the instrumental creator and the type of usages the purchaser envisions.
As examined above, when a musician is purchasing or leasing a beat, it is essential that they ensure that any purchased instrumental does not contain any unauthorized “samples” in them. If the instrumental track does contain a “sample” of another’s work, an artist should require that the seller provide some type of appropriate “sample clearance” document or any other clearly defined authorization permitting the use and commercial distribution of a track containing this “sample.”
If the seller cannot provide proper documented authorization, it is highly advisable to avoid purchasing (or leasing) this instrumental as it could set the purchaser up for potential copyright infringement liability down the road. Even if there is not a clear and distinct unauthorized sample in a “beat for sale,” it is prudent to ensure that the seller agrees to fully indemnify the purchaser for the creation and state that they will reimburse the instrumental track purchaser if they are sued or otherwise found liable for unauthorized material contained in the purchased work. A purchaser should aim to have the seller warrant that they own all the rights to the material contained in the work and that there are no “samples” or other unauthorized material used in the creation of the work.
Additionally, it is important that the parties agree in writing on what the original creator is entitled to in exchange for the rights that the purchaser acquires. This could include the instrumental producer receiving a traditional music publishing interest in a finished track; and, if so, the agreement should list what percentage they would be entitled to. It is also essential to determine the royalty rate the seller is entitled to, which is typically a specified percentage of the income generated from the track. This rate can be based on a ‘per copy’ rate or can just be a flat fee buy-out that does not include any additional royalties for the recordings sold.
Likewise, it is imperative to outline whether the purchasing party is permitted to issue third-party licenses for the finished recording or not. The parties should also agree on which avenues of exploitation are permissible, such as the right to synchronize with visual images in any media such as in a motion picture, in television, or in a video game.
Finally, a determination of appropriate credit, if any, and the rights of publicity should be made between the parties. The right of publicity permits the purchaser to utilize the instrumental creator’s name, likeness, and other biographical material in connection with selling or otherwise monetizing the material. This is extremely important, especially if the instrumental is created by a well-known “beat” producer.
As discussed above, it is important to acquire the proper licenses and rights to the material a musician intends to distribute and monetize. In fact, most third-party distribution platforms, such as Tunecore, require its users to verify that they have rights to any material that they make available for sale. A failure by the artist to obtain the proper clearance prior to commencing to sell their music could potentially impact the amounts that the artist can make as well as potentially exposing them to additional significant liability.
This Survival Guide is not intended as legal advice, as an attorney specializing in the field should be consulted.
By Justin Jacobson, Esq.