In this second part of my series on sampling and beatmaking (part one here), I will be answering a frequently asked question: who holds the rights to the sample?
In other words, who do you have to ask for permission to use a sample?
First, a definition…
According to Wikipedia, “In music, sampling is the reuse of a portion (or sample) of a sound recording in another recording.”
Samples do not escape the elementary notions of music law: that there is a musical work, a sound recording, and their respective rights holders.
** The general principle is that the rights holder has the exclusive right to exploit all, or a substantial part, of the work. In other words, the use of an un-substantial part of the work does not require prior authorization. Determining what makes a part substantial, and what does not, is a delicate task, from both an artistic and legal point of view. Since the beatmaker’s intention in sampling is generally to pay homage to another work, I will assume, for the purposes of this article, that prior authorization is required!**
SAMPLE: THE “MUSICAL WORK” PART
The musical work is the fruit of artistic labor; it includes the musical composition, lyrics, melodies, arrangements and, more broadly speaking, the creative contribution of its various contributors.
The rights holders in the musical work are:
- The author;
- The composer; and/or
- The publisher, if the authors/composers have entrusted to them all or part of their rights under a publishing contract.
SAMPLE: THE “SOUND RECORDING” PART
The sound recording is the recorded version of a musical work.
Again, by way of illustration: the recording is the form, the musical work is the substance.
As the maker assumed full financial responsibility of the recording, (i.e. studio fees, musicians’ fees, etc.), they own the recording, while the recorded performers own the rights to their performance.
Consequently, the owners of the rights in the sound recording are:
- The maker; and
- The performer. Very often, the performer will have assigned their rights to the maker so that the maker can exploit the sound recording at their own discretion. This means that as a beatmaker, you will only have to obtain a guarantee to this effect from the maker.
In short, to use of a sound excerpt –a sample – two components must be taken into account: the musical work and the sound recording.
You are thus likely to have to ask the permission of five rights holders: the author, composer, publisher, maker and/or performer. In practice, however, the publisher and maker (the record label) usually hold all the rights. That said, it is important [for the beatmaker or their own record companies or publishers] to consider all the possibilities to ensure no one is forgotten!
Do not hesitate to contact me for more information on this subject!
::Photo credit : Manuel Sardo