Music Sampling: a few Do’s and Don’ts 6

Music Sampling is the act of incorporating bits of someone else’s musical score or sound recording into your own music.  Music Sampling becomes risky business when it’s done without proper authorization and licenses.  To further complicate things, musicians and composers often view sampling as a logical progression in the music composition process; and often ignore the formalities and laws that regulate sampling.

Here are a few basic Do’s and Don’ts of music sampling.

  • IT’S OK TO:  sample from the song White Christmas (original score) because it in the public domain.
  • IT’S NOT OK: to sample from Frank Sinatra’s sound recordings of the song White Christmas because these are not in the public domain.
  • IT’S NOT OK: to sample ‘arrangement elements’ of Frank Sinatra’s sound recordings of the song White Christmas because the sound recordings are not in the public domain.

The common theme of these three examples is whether or not the sampled music is in the public domain.  The public domain is the land of ‘free public property’ and music that is in the public domain is free for the taking, sampling, using, reproducing, or distributing.

What music is in the public domain?  Any musical score that was published in the US before 1923 is in the public domain, due to expiration of copyright.  There are also newer musical scores in the public domain too, but a case by case analysis needs to be done on scores published in 1923 or later to determine if they are in the public domain and free for sampling.   A significant, but easily overlooked detail, is that almost all sound recordings are ‘new enough’ to still be under copyright protection (this includes bit and pieces of the sound recording as well as arrangement elements) and hence are not necessarily free for sampling.

BY: Vanessa Kaster, Esq., LL.M.

vk@kasterlegal.com.

6 comments

  1. Very interesting distinctions in the White Christmas example. How does one search to find out if a piece is in the public domain yet or not? Can heirs force the “public domain date” back so that the music remains private longer?

  2. Finding out who owns a work or if a work is in the pubic domain isn’t always as simple as it might seem. Online searching can be done for copyright registrations made/recorded after 1978. For anything older, you can search in person at the Copyright Office or pay the Copyright Office to run a search for you.

    Your right, that folks who are making money from their copyright want to keep making money from their copyright for as long as possible… and this has been a factor in changes made to copyright law over the years.

  3. Good read. Very informative. Only thing is that music genres like Hip-Hop were founded on sampling, if you remove it then you take away the essence of the Hip-Hop beat. A lot of emcees and beatsmiths don’t clear their samples, even popular underground artists. And people will continue to put out sample-based music, but thanks for the info.

  4. Thanks for you comment. And you’re right… sampling is common place in many if not most types music. Not only in Hip-Hop but also in classical music, jazz, folk… you name it. The late, great classical composers sampled from each other all the time. In fact, I was at the MET Opera right before I wrote this post and was amazed to hear that one of the main themes from ‘Phantom of the Opera’ was lifted right out of Puccini’s Opera score.

    Sampling isn’t shameful… it’s part of the music making process. However, in many cases permission, credits and compensation need to be negotiated.

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