Put off by the sometimes onerous undertaking to obtain clearance, some upcoming artists gamble on the prospect of going undiscovered and record a sampled song without obtaining the relevant permission. At YMB we always advise our young artists to have their legal and business matters in check at all times. Getting clearance for your sampled song, no matter your expectations of its success, is a MUST. Not doing so makes you vulnerable to the possibility that the owner(s) of the sample not only demand that you remove it from your song but they may also bring legal action against you for copyright infringement. In other words, without clearing your sample things can go from “0 to 100 real quick” (hopefully Drake won’t need us to clear that).
We’ve put together 6 useful things to know about clearing samples, to guide you in the right direction.
1. Permission must be obtained from two sources which are; the owner of the master recording and the copyright owner. The song is usually owned by a music publisher who can be located via a music rights organisations such as PRS, MCPS or BMI and the master is typically owned by a label. However, there are situations where the label may have assigned rights to a third party, or rights are reverted back to an individual artist or the master is owned by an independent artist, in such instances it can be an absolute mission to locate the owner of the master. For this reason, find the publisher first who can then let you know who is in control of the master.
2. You CAN NOT clear a sample by alteration (e.g. speeding it up, auto-tuning it etc.), re-recording or using a track which has already cleared its samples, this will still amount to an infringement and require the relevant permission.
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There are situations where one of the two sources you need to obtain clearance from says ‘no’ and the other says ‘yes’. Due to the nature of copyright law if the publishing rights owner says ‘no’ and the recording right owner says ‘yes’ you cannot go ahead. However, in the reverse there may be an option for you to re-record the sample and play the song yourself without using the actual sound recording which will relieve you from needing permission from the owner of the master rights.
3. It’s all about the mula, so let us break down the costs. There are a few factors which will determine the cost of sampling.
The label: If the song you’re wanting to sample is from a small label the request might be a one-off fee called a ‘buy-out’. If the sample request is to a major label and by a big artist, the label will usually request an advance on top of royalties ( typical royalty rate is generally between 1-3% - but if the sample is a substantial part of your song the royalty rate may be MUCH higher), if you can’t afford the advance you may be able to negotiate a smaller advance against a higher royalty rate.
The pubisher: Unlike the label the publishing company won’t usually ask for an advance but will demand a royalty, which depending on how big the artist is and how much of the song you’re sampling, can be quite high sometimes even higher than 50%. Bare in mind that some songs are co-written where each writer may be represented by different publishers!
4. To give yourself more of a chance of obtaining the relevant permission make sure you make their job easy and come prepared with all the information that will be required. Prepare a file with the track that your sampling and your track; include exact time stamps of where the sample will occur; include your personal information and information about the release. The more information you are able to provide the quicker the decision process.
5. The time it takes to get clearance will vary, if you have provided as much information as possible from the go then getting the song and master cleared can happen quite quickly (a matter of weeks). In most cases the delay is in obtaining the artist’s permission to go ahead. Some publishing or record contracts may stipulate that the artist has approval rights for sampling, even if not it would be customary to get the artists permission anyway. If the artist is on tour or working on other projects it may delay this process.
6. When clearing a sample for a song ensure that you have cleared it for all uses worldwide, you want to make sure that your clearance terms aren’t just limited to record sales. Who knows your track might be such a banger that it could get picked up by a label or a production company, in which case it would be unfortunate if there is some kind of restriction to licence the track for other uses such as an advertisement or soundtrack to a movie.
We hope these key bits of information have been useful to you, if you need any further guidance on the above remember that YMB Consultancy is here for you.