How to sample legally

Sampling has been a hot topic in the music world for decades. To be clear, sampling means to take an audio snippet, usually from an already existing song, and make it into something new. The legality of using other people’s work can be complicated and legally messy, but in spite of that, it has remained a prevalent art form. 

Luckily, nowadays a service like Tracklib can simplify the effort.

Some condemn sampling as lazy stealing, while others praise the collage-like creativity and homage. Regardless of how you feel, the fact remains that sampling introduces old and often forgotten songs to new audiences that would otherwise never hear them. And if the original creators give their consent and get compensated, there’s no harm in it. 

But how do you go about sampling legally?

Sampling History

Sampling was popularized by the underground hip-hop community in the 1980s. At first, they would find short drum breaks on vinyl records and loop them on turntables so MCs could rap over them. Two of the most popular drum breaks are “Funky Drummer” by James Brown (drummer: Clyde Stubblefield) and the Amen Break from the song “Amen, Brother” by The Winstons (drummer: Gregory C. Coleman) which have been used in countless songs. 

As time progressed, digital samplers like the Akai MPC and the E-mu SP-1200 were introduced. This made sampling easier, more affordable, and opened up new creative possibilities. 

When hip-hop proved itself to be not just a cultural phenomenon but a major moneymaker, the original artists, composers, labels, and publishers all wanted a piece of the pie. This resulted in momentous lawsuits in the late ‘80s and early ‘90s. Notably, The Turtles sued De La Soul and Gilbert O’Sullivan sued Biz Markie for uncleared samples. These lawsuits made artists and labels more careful about sample usage and ensuring samples had been cleared. In 1993, Biz Markie released an album called All Samples Cleared! as a reference to the previous lawsuit.

Today, you don’t need turntables or hardware samplers. You can do the same and maybe even more with a DAW (like Soundation) and an audio file. Even though the music business cracked down on illegal sampling, sampling didn’t become any less common. On the contrary, it has become one of the most popular production techniques and is heard in more songs than most people probably realize — and not only in hip-hop but in pretty much every genre.

Copyright

There are two types of copyrights in music — the recording and the composition. The labels and artists usually own the recordings, while the compositions are usually owned by the songwriters and publishers. These rights could belong to one and the same person who has written, recorded and released a song all by themself. It could also be a tangled mess of multiple songwriters, producers, labels, and publishers who all hold a piece of the rights.

Clearance 

To release music that contains samples, you need permission from all the rights holders. This is called clearing the sample. Tracking down all the rights holders can sometimes be tricky, depending on the situation. IFPI can help you find the labels, and you can use performance rights organizations like BMI and ASCAP to look up who owns the rights to compositions. If the rights holders agree to your request, they will probably want an up-front payment as well as a cut of the royalties (the money you generate with the song). An option to make sampling easier and more affordable is by remaking the part of the song you want to use. This would be called an interpolation and means you don’t have to license the original recording. However, you still have to get the rights to the composition. 

Sampling Myths 

“It’s just a few seconds”

It doesn’t matter how short the sample is, you still have to clear it. Even if it’s a fraction of a second, it might make it harder to detect, but doesn’t make it any more legal. 

“I changed it”

Pitching, stretching, distorting and generally messing up the sample is fun and creative, but it doesn’t exempt you from having to clear the sample. No matter how different it sounds from the original, clearance is necessary. You might think that no one will recognize the sample but beware, as automatic music detection technology is getting better and better. 

“It’s fair use”

Though fair use can be argued in some instances as a legal defense against copyright infringement claims (for limited use in transformative commentary and parody), it does not apply in most cases. If you don’t want to ask for permission and claim fair use instead, make sure that it indeed is fair use. 

“I’m not making any money off of it”

Just because you’re not selling the music, doesn’t mean that you don’t have to clear the sample. It’s still copyright infringement. Platforms like Soundcloud, YouTube, and Soundation can remove the content and may even ban you for uploading music with uncleared samples. Although there probably won’t be repercussions beyond that, it’s not worth the risk. 

“It’s an obscure song”

The popularity of the original song doesn’t change the fact that you need permission to use it. If your track gets big, odds are it will be figured out at some point.

Tracklib

One service that makes all of the work and sampling legalities easier for you is Tracklib, a library of real songs that you can dig through and get creative with. If you decide to release a song that uses a sample, you can clear it directly through them. This makes legal sampling accessible, and affordable, for the first time. 

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