Like many forms of creative expression, music is protected by copyright law. As a general rule, a license is required if you create a new work using pre-existing music created by someone else. This includes “sampling,” which involves incorporating a portion of an existing sound recording into a new song or audiovisual project. Understanding what rights must be cleared is essential to avoid costly infringement claims.
Music Copyright Basics
Two separate copyrights exist in most recorded music:
- The Musical Composition – covering the underlying music and lyrics, typically owned or administered by one or more music publishers.
- The Sound Recording – covering the specific recorded performance of that composition, usually owned by a record label or, in some cases, the artist.
For example, the song “New York, New York,” written by John Kander and Fred Ebb, is owned on the composition side by music publishers, while Frank Sinatra’s famous recording is separately owned by his record label. Using the composition itself and using Sinatra’s sound recording of it are legally distinct acts requiring different permissions.
Are Cover Recordings Considered Samples?
Recording a “cover” version of a song does not involve sampling the original sound recording. Instead, it requires a mechanical license for the musical composition. Mechanical licenses are compulsory for audio-only recordings distributed in the U.S., meaning the copyright owner cannot refuse the license so long as statutory requirements and royalty payments are met.
However, mechanical licenses do not apply to audiovisual uses. If a song is used in a film, television show, commercial, video game, social media video, or other synced media, a synchronization license must be obtained from the music publisher. If the original sound recording is used, a separate master use license must also be obtained from the record label.
What Are Music Sampling Rights?
Sampling involves taking a portion of an existing sound recording and incorporating it into a new recording. This is common in hip-hop, electronic music, pop production, and increasingly in social-media-driven content creation.
To lawfully sample a recording, two permissions are generally required:
- A license for the musical composition (from the publisher(s)), and
- A license for the sound recording (from recording owner, which may be the record label or someone else).
Unlike mechanical licenses, sampling licenses are not compulsory. Rights holders may refuse permission altogether or negotiate fees and usage restrictions, including royalty participation, credit requirements, and limitations on distribution or media platforms.
If the sample will appear in an audiovisual work, synchronization and master use licenses are also required.
What If Permission Is Not Obtained?
Using a sample without proper clearance can expose the artist, producer, and distributor to copyright infringement liability, including statutory damages, profits, and injunctive relief.
Courts have rejected the idea that “small” samples are automatically permissible. While some cases recognize a limited de minimis defense when a sample is unrecognizable to the ordinary listener, other courts, particularly in sound recording cases, have held that any unauthorized digital sampling can constitute infringement. Even a short excerpt may require licensing if it captures the “heart” or distinctive elements of the original work.
As a practical matter, clearing rights in advance is almost always far less expensive than defending an infringement lawsuit or negotiating a settlement after release.
Contact Our Team
Whether you are an artist, producer, content creator, or rights holder, navigating music licensing requires careful legal analysis. An experienced copyright or music attorney can help determine which rights must be cleared, negotiate sample licenses, and draft agreements that protect your creative and commercial interests.
Contact our team to discuss your project and next steps.
Contributions to this blog by Kennedy McKinney.