Sampling Music Within the Bounds of Copyright Law
The latest lawsuit against Kanye West takes us back to copyright basics
They say it’s always better to ask for forgiveness than for permission, though I think most copyright owners would disagree. Sampling music is a perfect example—it’s a great way for artists to generate fresh, exciting work by bringing in familiar, existing sounds. Audiences get the benefit of enjoying the new and the old together, so it’s no surprise that the popularity of sampling has grown year after year.
Consequently, so has the number of copyright infringement cases regarding music samples. The latest is a lawsuit brought against Kanye West by Bishop David P. Moten, a pastor at The joy of the Lord Worship Center in Victoria, Texas; Moten is seeking damages for the unauthorized use of his recorded sermon in Ye’s song “Come To Life.” Per Moten’s filed complaint, “twenty percent (20%) of the entire sound recording ‘Come to Life’ is comprised of unauthorized, unlicensed samples of the Sermon.”
That’s a significant amount, and it reminds me of what a fickle line sampling music can be when it comes to Fair Use. It’s true that an artist can use a small portion of someone else’s recording without their permission, though that artist’s use would have to be weighed by certain factors of a Fair Use analysis—a factor of which focuses on the question of the quality and quantity of the copyrighted work being used.
Our work with clients in the entertainment industry has spanned all sorts of copyright matters, not the least of which has been making sure they know exactly what rights they have when their work is registered with the U.S. Copyright Office. (A refresher: A copyright registration gives you the right to reproduce, distribute, publicly perform or display, digitally transmit [via sound recording], and make derivative versions of your original work.)
Infringement cases that revolve around music samples are coming our way more often—and many of them could be easily avoided if both creators and samplers had a better understanding of their options. If I could offer artists on either side of the sampling process three essential pieces of advice, they would be the following:
Register your original work with the U.S. Copyright Office. It’s true that once an artist finishes a creative work and fixes it in a certain medium, that person is automatically the author and owner of that piece—but try telling that to the courts. Backing up your ownership rights with a copyright registration is the only way you have real legal recourse in the event that someone infringes upon your creative work. Ideally, you should apply to register your work before you publish the work; alternatively, you can also register within the first 3 months of the work’s publication.
If you’d like to sample someone else’s creative work in your own piece, ask their permission. It sounds deceptively simple, but making the effort to ask can sometimes unlock the “yes” you need. Be willing to commit your agreement to paper too—even if you get what you want with nothing asked in return, it’s highly advisable to keep a paper trail of what was agreed to, what work you’ll be using, and in what context.
Beyond obtaining permission, know what the sample creator wants in return for your use of their work. This typically comes into play if one party has a much larger audience—more exposure, more influence—than the other. The copyright owner may agree to simply being given credit upon use, and/or a flat fee for a one-time use of their work. If your use of their piece is more complicated than that, they may want an ongoing licensing and royalty agreement, perhaps with a specified date for the revocation of that license. It all depends on their terms.
The business side of the sampling process doesn’t have to be complicated—not if you understand the basic expectations around transactional work and fair use of protected pieces. It also helps to have an attorney in your corner who knows the ins and outs of IP in the creative space. If you’d like to connect with our team about your own entertainment law needs, drop us a line below!
Vivid IP Associate Attorney, Melissa Castro