A famous example of sampling infringing copyright law is Vanilla Ice’s Ice Ice Baby, which sampled the bass line from the Queen/David Bowie song Under Pressure without obtaining clearance. Vanilla Ice was forced to pay royalties and as a result, all members of Queen and Bowie have since been given songwriting credit for the sample.
If obtained without permission, sampling can involve the breach of a number of sets of legal rights including the copyright in the composition, the copyright in the sound recording and the performer’s right to control the use of their performance.
In order to use a sample legally, you must first obtain permission from the copyright owner which is often a publishing company and record label. The issue of whether or not an artist has infringed copyright revolves around the question of whether a “substantial” portion of the original work has been used. Often, it is mistakenly believed that an individual is not infringing copyright law if they only sample a small portion of an original work. The real test, however, is whether or not the sample captures the “essence” of the earlier work by being an important and distinctive feature of it. The same test applies to non-musical works such as dialogue from a television show or film.
In music, just a few notes may be an important and essential part of a song. People are frequently attracted to certain parts of musical works because there is something distinctive and recognisable about it. This is often an indication that you will need to obtain copyright permission if you plan on sampling. It has indeed become common industry practice to clear musical samples from the relevant copyright owners. If you have a reasonably large fan base as an artist and are releasing material globally it is important that you become particularly wary of using a sample without permission, even though the law applies to everyone in the exact same way.
BY DAN CHISHOLM
