The Law regarding Sampling Part 2

  

There is also a rumor going around that you can use four notes of any song under the "fair use" doctrine. There is no "four note" rule in the copyright law. One note from a sound recording is a copyright violation. Saturday Night Live was sued for using the jingle, "I Love New York" which is only four notes. The test for infringement is whether the sample is "substantially similar" to the original.

Remember, a judge or jury is the one who determines this and these people may be much less receptive to your music than your fans. My point is you cannot rely on fair use as a defense.

Sampling can also have tremendous consequences if you have a record contract. Most record contracts have provisions called "Warranties", "Indemnifications" and "Representations". These provisions constitute a promise that you created all the music on your album and an agreement to reimburse the label if it is sued. These same provisions are included in all contracts throughout the entertainment distribution chain. The record company has them with the artist, the distributors with the record company, the record stores with the distributors, and so on. Well, all these warranties point back at the artist who is responsible to everyone else! Therefore, if you violate someone else's copyright, you will be paying all the bills of your record company, distributor and any stores which incur expenses as a result of your infringement. This can run into serious money as you can imagine. You will also be in breach of your record contract. Read your record contract carefully before using any samples.

Michael McCready represents clients in all areas of the music industry including music, radio, television, stage, and book publishing. His music law practice includes representing bands, record labels, production companies, recording studios, promoters, and music publishers. His work includes copyrights, analyzing and drafting contracts, trademarks, publishing, and litigation.

www.copynot.org --- VERY INFORMATIONAL

Contrary to popular belief and practice, sampling of an original copyrighted song without permission of the copyright's owner is illegal copyright infringement.

Unauthorized sampling actually violates two potential legal rights. First, the instant you sample a portion of someone's song (no matter how small), it constitutes a violation of the copyright in song itself - the © symbol - which is owned by the song writer or the music publisher. Second, sampling violates the sound recording copyright - the symbol - which is usually owned by the record company or recording artist. Thus, sampling without prior permission subjects the illegal copier to a copyright infringement in federal court by the original author (or publisher) and by the record company.


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