Like many forms of creative expression, music is protected by copyright law. That means a license is usually necessary if you create a new work using pre-existing music created by someone else (otherwise known as a “derivative work”). What rights do you need to license for music sampling?
There are two separate copyrights involved in a recording of music: a copyright in the song (which includes the musical composition and lyrics) and a copyright in the particular sound recording of that underlying composition. The song “New York, New York” by songwriting team John Kander and Fred Ebb provides a good example to illustrate the two copyrights. The copyright in a composition is typically controlled by one or more music publishers. “New York, New York” is published by Sony Music Publishing. However, the composition has been recorded by multiple artists, most famously by Frank Sinatra, and typically the record label owns the copyright for their particular sound recording.
If someone simply wanted to record a “cover” version of “New York, New York,” he or she would need to obtain a mechanical license to the musical composition from the music publisher. A mechanical license is compulsory and automatic for those who pay the associated fee. In other words, the copyright holder to the musical composition cannot refuse to give someone a license to record their own audio-only version, but the copyright holder is entitled to be compensated for the license. However, the mechanical license is available for audio-only recordings, not for videos. If you want to include a recording of a pre-existing music into a television show, film, videogame or other audio-visual work, you will need to obtain “synchronization” licenses from both the music publisher(s) and the record label for the recording of the song in question. For example, if someone wants to “sample” Frank Sinatra’s version of “New York, New York,” he or she must obtain the rights to the sound recording and the rights to the composition, as discussed below.
Sampling refers to the act of taking a portion of a sound recording and reusing it by incorporating it into an audio-only recording of a new song. This is common in genres in which artists will typically use pre-recorded music and sounds to create new work. Sampling is especially common in Electronic Dance Music (EDM).
If someone wants to sample a sound recording, he or she must obtain the permission from both the copyright owner of the song (the music publisher(s)) and the copyright owner of the particular recording of that song (the record label) to avoid copyright infringement. Unlike a mechanical license, licensing the right to use a sound recording is not compulsory. The artist can refuse to license the work or negotiate any price for those rights. If you want to use the recording, including the sample in an audiovisual work, you’ll also need to obtain synchronization licenses for that usage.
Licenses can get complicated depending on the length and nature of the music sample. A sample so brief that the underlying composition is unrecognizable may only require a license to use the sound recording. Conversely, a long sample would need a license for the sound recording plus permission for the musical composition.
If you were to sample a song without a license, you could be liable for copyright infringement. However, if the sample was so brief or was not detectible to the ordinary listener, you may be able to argue the use of the sound recording was de minimis, and therefore no permission was required. This defense may not always be available. In some instances, even if the sample is short in length, a license may be required if the excerpt encompasses “the heart of the song” (for example, it only takes seconds to recognize the opening bars of Queen’s “Under Pressure”). In either case, it is much less costly to obtain a license to sample a work than it is to defend a copyright infringement action.
If you are considering using a music sample or have been approached by a potential licensee, an experienced copyright attorney can assist you in determining what rights must be licensed and handle negotiating and drafting the licensing agreement. Contact a member of our team for next steps.
[This blog post has been updated from a previous version, published September 25, 2021]