Sampling

What does the Law think of Sampling?

Sampling is defined as the act of taking a small portion of one work of art, and then taking that piece and mixing it into an original work of art. This is probably most common in music, particularly in genres like hip hop, house, electronic, techno, and contemporary dance music.

It goes without saying that there are going to be legal issues coming up if you choose to use other people’s music as a part of your own without first getting their permission. Anyone considering sampling should probably read up a little on how the law pertains to this method of composition.

But… unfortunately, there is no one outcome someone can expect if they choose to sample one song and mix that clip into another. All we can really do is look at individual cases. Many artists who use samples argue that sampling is covered by the Fair Use Doctrine, and many judges agree. However… many judges disagree, as well.

The reason there’s so much contention is kind of because, well, art is largely subjective. The official ruling is that, for sampling to constitute plagiarism, that the “heart” of the song must be evident or obvious. Now… how are you going to come up with a legal definition for what exactly the “heart” of a song happens to be?

In some cases, a hip hop artist might use ten seconds of a song on a loop, and play with the sample in such a way that it sounds wholly original. In other cases, an artist might only borrow three or four notes, and get slammed with stiff fees for copyright infringement because their work was not deemed original enough. It’s hard to know when you’re in the clear, because one judge might be a little more open to the idea of sampling than another, one judge might have sharper ears and be able to spot a two second loop that would fly right by most judges and so on. You might even be able to build a song entirely out of samples, play it for the original artists, and not have a single one of them spot their own work buried within yours.

Today, you’ll actually hear less and less sampling in mainstream hip hop music. Most record companies will not release music with samples that are not cleared with the copyright owner before the time of release. Because the original artists are free to demand as much money as they want for the use of a sample, this has resulted in hip hop artists giving the sample owner seventy percent ownership of the new song, and a massive chunk of the revenue, even if their sample only consists of less than one second of the song, and only occurs one time.

The final verdict on whether or not you should use samples really comes down to like… sample at your own risk. There’s no way you’ll ever guarantee, one hundred percent that you won’t be sued. For example, the Beastie Boys were once sued because they used a sample of a song which they had cleared. Unfortunately, they only got authorization for that particular cover of the song. The copyright holder for the original notes wound up suing them, and the Beastie Boys were forced to remove the sample, even after paying for it.

On the other hand, you might be like Daft Punk, building songs entirely out of samples and never being sued. It’s just plain hard to know how it’ll all wind up when you’re using samples.

Although, if you choose to sample music that is in the public domain, you can pretty much do whatever you like with the end product. You can also sample most open source music, just so long as you do not use the end product for commercial purposes.

Almost anyone who really knows something about music can probably recognize that sampling can be a legitimate form of creating new compositions. Even the Beatles used sampling on several albums. Still, others just hold a negative opinion on sampling in general, and it’s certainly not helping when a rapper basically uses a sample like a Xerox machine, putting ten seconds on an endless loop and adding nothing new to it. It all really depends on the opinion of the original artist, and the opinion of the judge.