Legal Sampleing?????

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PRiZ-one

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Ya'll know where this is goin, I need some facts or more than basic info on what I can be sued for?

I know it's not a problem if I sell less than 10.000 units, but i don't want to not have the capabilitie of ever taking this shiet to teh masses and not getting fined for whatever I make.

Any sites with info etc, I'd also like to read up on, thanks!
 
The closest information I can offer on this subject is the "recent" 2 Live Crew case that was reviewed by the Supreme Court. The case deals with 2 Live Crew using portions of "(Oh) Pretty Woman," not necessarily sampled, in a parody song. The case deals with the threshold of taking material from another's work and using it in your own song in a parody context. This is all off the top of my head. You may want to do a search on it to find out more about the threshold of creating a parody song and the amout of music that can be taken for such a song.
 
The best thing IMHO is to just trust your own artistic judgment. You know if you're sampling is really creating something new and of value, or just ripping someone else off.

And if the crux of your tune depends on someone else's hook, give them credit. Title it "XYZ (PRiZ-one remix)". If it winds up selling a ton of copies, then the lawyers will work out all the royalties and such. Don't worry about it. Just worry about your artistic integrity.

And send the artist(s) you sampled a copy of your work. They'll most likely be very flattered. :)

barefoot
 
Do not follow Barefoot's advice.

Granted, most of us will not be releasing any CD's that will garnish enough attention where attorneys will get involved. However, Barefoot's advice is poor if you are actually concerned with copyright ramifications of your composition. In particular, letting the lawyers work it out is a bad idea. In particular, the Copyright Act includes criminal penalties for copyright infringement. Thus, if you lose a copyright infringement lawsuit, not only will you get stiffed with back royalty payments (even if you have not made a dime), you may get stiffed with a criminal fine.

Btw, none of my posts are intended to be legal advice. They are merely unresearched musings.


-B
 
Yo B, sorry for being unclear, but when I said "lawyers" I meant the brand who write up contracts and royalty agreements, not the type who litigate "Lawsuites".

The who point is to be up front and avoid lawsuits altogether. This is why I suggest informing the artists who's samples you've used. If you're a nobody bedroom recorder, they probably won't even care. Most likely they'll pitch your disc in the circular filing cabinet.

Now if you start selling 1000's of CD's they probably will care. At that point you should hook yourself up with a label and let the lawyer types work out all the business contract royalty mumbo jumbo. Not to say you shouldn't be very diligent and look out for yourself and your money. But there are people who do this sort of thing for a living and are far more capable than you or I at determining whether or not we have infringed on someone else's copyright and what should be done about it.

My point is, don't let these legal concerns stifle your creativity and prevent you from doing something you know is good. When the time comes that there is money to be made, all the legal contract stuff can be worked out. It's not too late. In fact, that's the right time. Everyone likes to make money and if an artist or label can gain royalties from something you are selling they are usually very happy. It's extremely unlikely that they will slam you with a lawsuit unless you've tried to pass something off as your own and not give them their share.

barefoot
 
barefoot said:
But there are people who do this sort of thing for a living and are far more capable than you or I at determining whether or not we have infringed on someone else's copyright and what should be done about it.
Click to expand...

That's good avice. If anyone ever figures out the formula, please let me know. Until then, I'd rather jam/compose/record/practice/play than research it.



-B
 
THANKS!

Not to sound Greedy, but I really want to avoid giving royalties at all, unless that just means credit. I know this artist must be in the millions marker, so I wouldn't know. How much is royalties usually? or does it depend on how much you make, I'd be lucky to make enough just to barely live off, so I'm not trying to see more hands to share with.

Do you think I could sell thousands and people wouldn't even notice? I mean, odds are the people who know where I got the sample arn't going to be listening to what i do, etc. And those that find it will proabbly be doing what I'm doing anyway. Also the sample is from a live show only, so i think that might help me. it's about 8 seconds of a voice, but isn't even very recognizable to the regualr sound of it.

If an artist respects my work, and what I do, will they not bother?
Or are most artists out to get all they can. You'd think most artists have a more spiritual side to them, and a greater value for good music regardless of how it's done. I think a straight forward approach would be good, but only if I'm in the situation were I may be selling around 10 000 and up. I think If my finished product was heard it would be more impressive and respectable than aything else. It's not like I'm gonna be rappin some ingnorant bull unintelligently, making more of a mockery out of soemones work than turing it into another form as beautifull.

I'd like to try changing the pitch slightly, any plug-ins do this well?

Thanks for the help! I'm feelin better about my situation.

Also do you think it's smarter or dumber to just hope no one notices if you start moving major units?

Also I'd like to post it on here soon, I'm workin on getting my links together, aslong as all of you promise to not blurt out what it is if you know. It's sort'ov teh hiphop code of honour to not do this, nah mean. But even better just say if you do, just so I know if people can tell. I'm sure alot of you on here have listened to the artist it's from but may not detect it in my mix. Thanks!
 
If you sample anything without prior permission you are liable, period.
If you just do it for fun and your own use, your problem.
However, if you sell your work for money, perform it in public, and in particular if your work gets any radio play, you run a serious risk. (every radio station has to submit playlists).
Its good to consider that the original artist is very unlikely to care or mind (unless you sell a whole lot). But - the publishing companies do, and so do the performing right organisations, like BMI and ASCAP. IT IS THEIR JOB TO PURSUE THESE THINGS, and they do a pretty good job.
 
sjoko2 said:
If you sample anything without prior permission you are liable, period.
Click to expand...

Wrong.

Let me provide some info:

A copyrighted work may be used under certain circumstances under the doctrine of "fair use" of the work.

"Fair use" means that brief portions of published materials may be copied, but the law does not state the exact percentage of the total publication that can be used. "Fair use" is pretty much just that; writers should use published material to illustrate their own points but not to substitute for the original work.

The act states that fair use of a copyrighted work, "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement on copyright."

Unfortunately, there is no set formula for "fair use" because the doctrine is an equitable rule of reason.

However, the Copyright Act notes that the courts have evolved a set of criteria for fair use, which although neither definitive nor determinative, provide some gauge for balancing inequities. These include:

- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to - the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.

Most importantly:
The Copyright Office at the Library of Congress has a hotline for dealing with such specific questions. Call the Copyright Public Information Office at (202) 707-3000 for more information.

Note: This is not intended to be legal advice. Most of it is either musings of paraphrased or directly quoted from http://www.virginia.edu/~urelat/Guide/PartII-9.html If you have actual concerns about potential copyright infringment, please consult an attorney. Make sure your wash behind your ears. This message has not been evaluated by the Food and Drug Administration. The advise in this message is not intended to diagnose, treat, cure, or prevent any disease. For best taste, consume this message by January 19, 2004.


-B
 
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BBB - good post, but according to the law my liability statement is correct and remains.
The "fair use" clause which has developped over the years creates an exception WITHIN the copyright law, meaning that such use still falls under the law, but is not regarded as an infringement upon which you can take action.
"fair use" is completely out of the window if the moment it earns you money - like for instance through radio play.

I have had a total of eleven such cases involving my old material (I used to write a LOT). Only one of those was instigated by myself, when a friend who had just been on tour in Japan phoned me and asked when I was going to take him out to dinner to celebrate my Japanese earnings. A band there had taken one of my songs, written when I was 17, translated it, and had a top 10 hit with it. This wasn't exactly a sample, they just used the whole song and claimed it to be their own! (I was very grateful :)
All the others were phrases used by other artists and bits copied for TV and radio commercials. They were all persued, without my prior knowledge, by the publishing company and BUMA/STEMRA, the performing rights organization in Europe.
 
Sjoko,

That's cool about the Japanese tune. When're you taking the board out for a beer with your winnings? :D :D


Regarding liability, regardless of whether fair use is an exception or a defense to infringement, you will not be "liable" if you successfully invoke the doctrine.

Furthermore, as mentioned above, the fair use doctrine was clarified by the Supreme Court in the 2 Live Crew case. In particular, according to the Supreme Court, making money does not throw the fair use doctrine out the window. It is merely one of the factors that I enumerated above and that I'll repeat below. The factors include:

- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to - the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.

Thus, the commercial nature of the work does not per se throw fair use out the window. Court decisions before 1994 did construe commercial use to be presumtive infringement. However, in the 2 Live Crew case, the Supreme Court looked past these decisions and ruled in favor of 2 Live Crew. In paticular, 2 Live Crew did copy portions of (Oh) Pretty Woman, and they did gain financially from the song. However, they were not liable based on commercial gain because of the weight given to the other factors.

Methinks, your experiences with the fair use doctrine predate the 1994 Campbell v. Acuff-Rose Music case. ;)


-B
 
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I'm defeated your honour :D :D

boy am I glad that other people have to worry about that shit :)
 
As a law school dropout, I don't doubt BBB, but would urge anyone who is going to go big-time commercial with a product containing samples to consult a lawyer first.

I would also add that even if a record company ultimately lost a major lawsuit against you, the legal fees (generally not recoverable) alone can be enough to bankrupt someone.
 
"You'd think most artists have a more spiritual side to them, and a greater value for good music regardless of how it's done. "

I know you only asked for legal advice, but I gotta let this out:

Ripping people off is not very spiritual ya'think? By recognizing the achievement of whoever you're sampling - not only on the "have a nice day"-level (by sending him a copy of your CD and a Hallmark greetings card) but also on the level of real action (sharing your financial gain) - you recognize the noble part of the music industry, which is the participation of individuals in an age-old tradition - and not the ugly part, which is - as you put it - greediness.

Peace out!
 
Aight!

I know what your saying, but before I try to defend my statement this is very subjective. I was more meaning with the intention that I if used a little peice of sound from an artist, like when bbb cleared it up with.

"the effect of the use upon the potential market for or value of the copyrighted work."

So in this case I meant if they tried to get in on the large profit, without actually being part of anything more than being the pluckie of the single sound you used, and trying to gain off of the way you flipped it and off your total reconstruction.

I do agree with you, I wish I hadn't of talked without thinking threw what I said, but nowadays I'm on the side of the sampler, being this is where my music is based off of in construction.
I think there's nothing better than all the great music throughout time being brought back to life, instead of just collecting dust and dieing off.
I actually kinda enjoy the challenge of cutting and slicing my samples till they are not recognizable anyway.

I'd also like to say it's not ripping an artist off unless they take their fans and profit, for no fan of pink floyd is picking up the new wu-tang, in general, except that odd less than 1%, So even if A whole song was taken from the artist and coverted into another juandra, it really wouldn't be hurting their sales, nor would they be getting ripped off, besides the fact they played it. If someone sung a song and another artists heard the song, and used parts of it's lyrical composer and word play, not to mention inspiration it had on them, in parts of their own song in near similarities, would they be any less of a lyricist. Hiphop isn't all grand either, we get style biters, imitators etc, that copy other work, and no one can do anything about it, you can't sue them for copying your style or lyrics etc. All I'm saying is if it has it's heart and creative equality, why would another artist try to take that away from soemone else, especially if they do it themsleves.

Don't intend to start a debate or anything, just letting my thoughts surface.
 
Re: Aight!

PRiZ-one said:
"the effect of the use upon the potential market for or value of the copyrighted work."
Click to expand...

Keep in mind that this is just one of the factors.

I'd also like to say it's not ripping an artist off unless they take their fans and profit
Click to expand...

Not necessarily true. One argument that would logically flow is that it is then ok to copy CDs, etc. if you never would have purchased them in the first place. Point being, that all the factors should be taken into consideration.

Just pointing out that this quote does not appropriately summarize copyright law on parodies as the law now stands.
 
Can I add another question?

I know sampling in hip hop gathers alot of attention when artists sample melody lines and beats and loop them to make their own song, but what if you do sampling of a different nature?

Example: In my band we have a sampler/keyboardist. When we look for sounds we usually try to make them ourselves or get them from those "royalty free" sound effects sites. But we have a few samples from movies. They usually don't run longer than 2 to 3 seconds in length, but alot of the time theyre noticable as to what movie they came from.

The sampling we do never really adds any type of melody to a song, so its never a selling point, just kind of added flavor. On all our disks that we send to the copyright office we leave the samples off the disk as to not get in trouble for "copyrighting someone elses work", but is 2 seconds of audio from a 120 minute movie really considered infringement?
 
I think it boils down to these few points...

the artist isn't who you'll need to worry about...it's the people like BMI and the Harry Fox agency...who take their jobs VERY seriously...they're bulldogs man. My understanding is that a lot of the top selling artists don't have the authority to grant permission for something like sampling...so even if they're cool with it, their record company(who actually owns the song) might not be. The record company could care less about a higher purpose, don't kid yourself there.

My understanding is the law is open to some interpretation by the judge/jury...meaning if the judge decides yer liable, yer liable - he/she decides if you ripped it or not...yea, you can appeal("I'll handle the appeal for an additional 10 grand, up front please")....do you really want to take the chance of going to court? Lawyer fees, lost time from work/life, etc...even if yer vindicated yer still screwed. Somebody told me once regarding samples - ask yerself, would the song be the same without the sample? Are you piggybacking someone else's melody? If so, be careful. If not, your prolly gonna be ok when you go to court( "I require a 4 grand retainer, will that be cash, check, or charge?")

my uninformed 2 cents. Would you like your change back?
 
Hux, you are right, with the exception of "the record company whao actually owns the song" , as very few record companies do own any songs.
BMI. ASAP, BUMA-STEMRA etc are non-profit performing rights organisations who's job it is to track airplay and use of material, to ensure artists get paid if their work is played, performed or used in any way. It simply is their JOB to track use of material, any use of material. Therefore, unauthorised use gets noted as a matter of cause.
 
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