Many clients ask about whether or not they can "sample",
how much is permissible to use, and whether or not they need permission to sample.


Sampling occurs when a portion of a prior recording is incorporated into a new sound recording. When such a use occurs without permission, copyright infringement of both the sound recording (usually owned by the record company) and the song (usually owned by the songwriter or publishing company) has occurred.


In order to legally use a sample, you need to contact both the owner of the sound recording and the copyright owner of the underlying musical work for permission. License fees for sampling vary greatly and depend on how much of the sample you intend to use, the music you intend to sample, and the intended use of the sample in your song. Licenses can be granted for free, for a percentage of the record royalties and/or the mechanical royalties, or for a flat fee. Threre are no statutorily mandated rates for samples so the copyright owner can charge whatever he wants and does not have to grant you permission to use his work at all.


Using samples without permission can lead to litigation where you may be forced to pay damages to the copyright owner of hundreds of thousand of dollars per infringement. A court can also order you to recall and destroy all of your infringing copies.


Although the "2 Live Crew"/"Pretty Woman" infringement case turned on the issue of "fair use", I do not recommend trying to rely on that copyright law doctrine. And the idea that you can use a certain number of notes or seconds of someone.s song without penalty is a myth. The only proper way to use a sample of a prior recording in your recording is to get permission.

Wallace Collins, Esq is an entertainment lawyer with the New York firm of Serling Rooks & Ferrara, LLP

 © 1993 - 2009 WALLACE COLLINS, Esq. all Rights Reserved.


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