George Howard is the Executive Vice President
of Wolfgang’s Vault. Wolfgang’s Vault is the parent company of Concert
Vault, Paste Magazine, and Daytrotter. Mr. Howard is an Associate
Professor of Management at Berklee College of Music.
September 13, 2012
Article Courtesy of TuneCore.com
A Walk-Through: Sampling
By George Howard
(Follow George on Twitter)
I’ll be writing a periodic set of articles all designed to present
the necessary information to make complex topics in the music business
more easily understood—”walk-throughs,” if you will. The first in the
series is a walk through on sampling.
I chose this topic because it allows us to view an
action—sampling—which requires an understanding of an array of music
business elements. As such, I’m able to introduce several important
concepts at the same time. Even if you yourself are an artist who does
not sample, it’s important to understand the process because someone may
desire to sample your music.
First, a definition. Sampling is the act of inserting a portion of
another work into your work. For instance, Vanilla Ice inserted the bass
line from the David Bowie/Queen composition “Under Pressure” into his
song “Ice, Ice, Baby.” As such, Vanilla Ice sampled David Bowie/Queen’s
song.
Whenever you question whether something is allowable in the music
business, you should always begin with examining the bundle of rights
that are automatically granted to copyright holders upon the creation
and fixation (writing down or recording) of an original work of
authorship. For a primer on this, please refer to
this handy guide.
Ok, let’s take a look.
First things first, should you desire to insert the copyrighted work
of another artist into your own work (i.e. sample their work), you
immediately bump into that artist’s exclusive right to create derivative
works. This—the right to create derivatives—is one of the six rights
conferred on copyright holders. What this means is that only the
copyright holder can do things like: make a translation of their song,
create a screenplay of their song, and—most relevant here—create a new
song that is in any way
derived from the original composition.
So, inserting a portion of someone else’s work—however short that
insertion might be—is deemed to be creating a new work derived from
another work. Only the copyright holder of the original work can do
this without infringing upon another’s copyright.
What this means is that should you desire to sample someone else’s
work in a song you have written, you must go to the copyright holder(s),
and seek permission to do so. Similarly, should someone desire to
sample your work in one of their songs, they must come to you. Fair is
fair, right?
In terms of what type of deal you must strike with this person (or,
they with you), there is no compulsory rate. In other words, unlike,
for example, when you want to cover someone’s song, and can rely on the
compulsory license statute, which establishes the rules (including what
you must pay the copyright holder of the song you cover), no such
statute exists with respect to derivative works; it’s a purely
negotiated dynamic. The person who controls the copyright you desire to
sample in your work can grant you the right to create a derivative for
free or for whatever fee the market will bear, or just say no, and,
thus, keep you from sampling the work at all.
Of course, the same rules apply to you when someone wants to sample
your work. This is reasonable. Imagine someone wants to use your work
in their work, but you feel their doing so would present your work (and,
by extension, you) in a way that you’re not comfortable with—you
wouldn’t want them to be able to just do it anyway. Similarly, if you
are the copyright holder of a very popular song, and someone who is less
well-known wants to sample your work in their song (I’m looking at you
P-Diddy), you might reasonably feel that this artist is reaping
disproportionate benefit from your song; in other words, the popularity
of “their” song is contingent upon the established popularity of your
work. In this case, you would want to be compensated in such a way so
as to not feel that the artist sampling your work is free-riding, and
being unjustly enriched. By not having a compulsory rate, you are able
to do this.
Before we move on to further details with respect to compensation, let’s pull back and examine what
exactly
is being sampled. For every song there are two copyrights: the
copyright in the composition itself (represented by the (c) symbol), and
the copyright in the sound recording of the song—frequently referred to
as the “master;” this is the
recording/
version of the
song that is on a CD or download (it is represented by the (P)
symbol). While the songwriter or the songwriter’s publisher is
typically the copyright owner of the composition (the (c)); the sound
recording (the (P)) is typically owned/controlled by the label who
releases the record/CD/download. Of course, if the songwriter releases
the work himself/herself he/she would be the owner of both the (c) and
the (p).
Both the (c) holder and the (p) holder have the exclusive right to
create derivative works, and so it’s not only the writer of the song
(the (c) holder) that you must obtain permission to create derivatives
from, but also the copyright holder of the sound recording/master (the
(p) holder)—again, typically the label.
Either party can say no, and either party can negotiate whatever deal
with you that they want. Frequently, these deals are “Most Favored
Nations” (MFN), meaning that whatever deal is struck with one party (the
(c) holder, for example) must also be struck with the other party (the
(p) holder).
The copyright holder to the composition (the (c) holder) is the
dispositive party. That is, if the (c) holder denies the usage, it’s
game over. If, on the other hand, the (c) holder agrees to the usage,
but the copyright holder of the sound recording (the (p)
holder—typically, the label) says “no,” the person desiring the sample
can re-record the sample, and, thereby, bypass the (p) holder.
Obtaining permission from the rights holders to create a derivative
work is the first step, but, again referring to the six rights the (c)
holder(s) are conferred with, we see that there are other steps that
must be taken.
Simply having the right to create a derivative, and, thus, include a
sample of someone else’s work in your work, doesn’t do you much good if
you can’t exploit (sell) it. In order to sell you must have the right
to do at least two other things that—unless a deal is struck with the
copyright holder—only the copyright holder has the right to do:
reproduce and distribute the work.
The rights to reproduce and distribute a work are, of course,
essential to selling that work. Labels that desire to reproduce and
distribute the copyrighted works of a songwriter on the label’s releases
do so via a “mechanical license.” Therefore, when a sample is inserted
into a song, unless the copyright holder(s) of the sample waives their
rights with respect to reproduction and distribution (and, why would
they?) the copyright holder(s) of the sampled work must be paid for the
reproduction and distribution of the work.
Typically, what occurs is that as part of the deal that “clears” the
sample—i.e. outlines things like the right to create a derivative
work—details concerning royalties associated with reproduction and
distribution are also addressed. These are negotiated, and — like the
terms for the use of the sample—are determined by what the market will
bear, but the normal scenario is that the person using the sample gives
up some or all of the mechanical royalties to the writer of the original
composition. Note, that a “synchronization”—the use of a song combined
with an image; such as in a movie or TV show—also triggers reproduction
and distribution issues, and must be addressed in these deals. In
short, if your work is sampled in a song, and that song is used in a
movie or TV show, you should get paid when that movie is
reproduced/distributed.
The last element to consider with respect to rights/income and
samples is public performance. The exclusive right to public performance
(both in the composition (the (c)) and the sound recording (the (p))
are exclusive to the writer and the master holder. As such, when the
writer and master holder’s works are publicly performed as part of the
song that sampled them (that is, when a song that has a sample in it is
played on the radio, streamed online, performed live in front of an
audience, or, in any manner, publicly performed) performance royalties
are owed. In all cases, a public performance royalty is owed to the
copyright holder of the composition (the (c)), and in the case of
non-interactive digital streams (such as internet radio, Pandora, or
satellite radio), a public performance royalty is due to the master
holder and featured performer. The payments to the the songwriter are
made via Performance Rights Organizations, such as ASCAP, BMI, or
SESAC. The payments to the master holder/featured performer are made
via SoundExchange.
As you can see, the use of another’s work as part of a new work (a
sample) triggers a vast array of rights issues. While—from the point of
view of someone who desires to sample someone else’s work—this may seem
extreme, from the other viewpoint—that of someone sampling your work—it
should give you assurance that you have both control (via the ability
to exclusively control whether or not a derivative of your work can be
created) and compensation (via your exclusive rights related to
distribution, reproduction, and public performance).
For those who feel that having their work sampled is beneficial from a
promotional standpoint, and want to facilitate/encourage the use of
their works as samples, they can utilize a
Creative Commons
license that allows the copyright holder to opt out of certain elements
of their copyright bundle. For example, they could allow the creation
of derivative works, and/or reproduction/distribution with few
(attribution, for example) or no conditions. I suggested in a
prior article
that perhaps another way forward is to create a compulsory license for
samples under a certain length (similar to the compulsory license rules
around covers).
Certainly, there can be benefits to having your work sampled, as
there can be benefits to sampling the work of others—in terms of revenue
and awareness—and songwriters/master holders need to understand them,
and, if they choose, attempt to maximize their value.
My hope is that, via this article, both those who desire to sample,
and those who have their work sampled see that there is a system in
place (however effective/efficient it may or may not be), and that the
system is rooted in the same copyright law that governs all elements of
the music business. To that end, if you understand this article, you’ve
gone a long way in understanding the music business generally.
