Written By: Leah C. Stevenson, Esq.
Samples are widely used in the music industry, especially among hip hop and R&B artists. Samples are a way to pay homage to the past creative works of other artists, while creating a new unique work at the same time. Although most of us can point out a sample when we hear one, do we actually know what constitutes a sample and how we can go about getting the proper rights to sample a song?
What is a Sample?
A sample is when an artist incorporates specific aspects of a song (the music and lyrics) and/or the master seamlessly into a new creative work.
If a music artist wants to sample one of their favorite songs, they would need to get the permission from both the copyright holders of the musical composition and the master as well. Additionally, the artist would need to have two license agreements, one for the the song and a separate license for the master that is being sampled as well. These license agreements would state the extent of use of the sample, the license fee, and the royalties payable to the copyright holders as well.
However, when an artist re-records lyrics or music from another person’s song without sampling the master, this is called an interpolation. When an artist uses an interpolation, they bypass the need to seek permission and pay for the use of the master as they are only sampling the underlying musical composition.
A Very Well-Known Sample- Between the Sheets” by the Isley Brothers
Let’s take “Between the Sheets” by the Isley Brothers for example, which is a very well-known song and an equally notorious music sample as well.
If you don’t know what song I’m referencing there are only three possible reasons why.
1. You’ve been living under a rock.
2. You don’t listen to timeless hits from the 20th century; or
3. All of the above.
I know, I know… I’m just a 90’s baby, what do I know right? I say this because I have literally known this song my entire life and I’m not kidding. I heard Between the Sheets on road trips, while cleaning the house, on the radio while we rode bikes in the summer, and at family reunions. You name it, my dad played this song religiously when I was growing up. What can I say? The man has great taste in music and “Between the Sheets” gets a *chef’s kiss* from me every time.
Now to jog your memory I have included a link to the song here. Excuse me while I listen to the entire song and groove for a little bit.
Ok… we’re back.
Since the Isley Brothers wrote themselves an-award winning, chart toppin’, and timeless hit, many artists have sampled the song. Jay-Z, Mac Miller, Chance the Rapper, Biggie Smalls, and Gwen Stefani have all sampled the song and the list goes on and on.
When Biggie sampled “Between the Sheets” in “Big Poppa” and Gwen Stefani sampled the song in “Luxurious”, they both had to seek permission from the owners of the song and the owners of the master as well. The Isley Brothers (Ernest Isley, Marvin Isley, O’Kelly Isley, Ronald Isley, Rudolph Bernard Isley, and Christopher Jasper) all happened to write the song so they likely granted Biggie and Gwen the right to it, but Gwen and Biggie had to likely acquire rights to sample the master as well. I am not sure how much Biggie and Gwen had to pay for these rights, but I’m sure it was a pretty penny.
Another first class sample…
More recently, when Jack Harlow sampled “Glamorous” by Fergie in his hot single “First Class”, he not only had to get permission from the copyright holders of the musical composition, but he also had to get clearance from the owners of the master, including none other than Fergie herself. Jack Harlow also likely had to pay hefty license fees for this sample, but it’s possible Jack will make that money back in royalties because “First Class” was one of the top songs of the summer.
When Jack performed at the VMAs this year he bought out none other than the GLAMOROUS Fergie. Jack Harlow’s link up with Fergie was something we never knew we needed. Below is footage from the VMAs for your viewing pleasure.
So this leads us to our next point. How do you actually go about getting licenses to sample preexisting works?
What is the sample clearance process?
Section 106 of the Copyright Act grants copyright holders the exclusive rights to reproduce, publicly perform, prepare derivative works, and distribute copies of the work. Third parties are not able to use copyrighted work without proper permission from exclusive copyright holders. Often times copyright holders will grant third parties the right to use their protected material through licensing.
When someone wants to sample a preexisting musical composition and/or master, a third-party would need to obtain permission and pay the applicable licensing fee to lawfully use and adapt that copyrighted work. While this may be counterintuitive to copyright law, someone who wants to sample a preexisting work must first create the new work (which embodies the sample) and then obtain permission from the copyright holders.
It may seem a bit strange that music artists must first use the sample and then obtain permission from the necessary rights holders, but there is a method to the madness.
Sampling Requests
Once the song is created, a music artist must reach out to the applicable rights holders with a sampling request which includes key information about how the sample will be used in the song. This sampling request must include all the necessary information so that the rights holders can determine the licensing fee for the permitted use. The following factors truly affect sample clearance and licensing fees: (i) commercial success of the song; (ii) success and notoriety of the original artist; (iii) length of the sample; (iv) how the sample will be distributed; and (v) how the sample will be used in the new recording.
If this sampling request is granted then the copyright holders will ask the artists to pay a license fee for the use of their work in the new song.
How much are licenses for music samples?
As previously mentioned, when a music artist samples a preexisting work, the artist is required to get permission and licenses from the owners of both the musical composition and master as well, unless they have used an interpolation instead of a full sample.
For the use of the underlying musical composition, the artist would need to obtain an “All In License” from the copyright owners who normally are the music publishers and the songwriters/ composers. The fee for an All In License can range from $2,000-$10,000+, but if the song is not well known, this fee could be substantially less. The copyright owners are generally entitled to a royalty of anywhere between 10%-50% of the revenue from the new song as well.
For the use of the master, the artist would also need to obtain a “Master Use” license from the record label or the recording artist (if the artist owns their masters). The license fee for popular and well-known masters generally ranges from $2,000-$10,000+, but this fee is substantially lower for less popular works. Additionally, the copyright owners are generally entitled to a royalty of anywhere between 2%-8% of the revenue of the song.
Should I use a sample?
Samples are a staple of the music industry as they pay homage to the past while creating a new unique work. While samples may be greatly used in the music industry, the sample clearance process is a long and grueling one. Samples can elevate the popularity of a song, but it is imperative that music artists obtain the necessary rights so they can commercially exploit their new music without inviting copyright infringement claims or music takedowns.
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