I am frequently asked the same question in multiple forms, which essentially is, “How much music can I sample without getting sued?” Unfortunately, too many people believe too many urban myths about music sampling and how much is permitted to be used without a license from the copyright owner. The law is complicated and there is no clear line. So, what is the best course of action to take if you are going to sample music?
It is an urban myth that you can sample a particular length of music without incurring any liability or paying any license fees. Usually, this is presented under a misunderstood justification of “fair use.” I’ve heard people incorrectly claim they can use up to thirty seconds under fair use laws. I’ve also heard others erroneously claim they can use up to four bars or six seconds of a song, without violating copyright laws. Unfortunately for those who follow these guidelines, they are putting themselves at significant risk of copyright infringement. There is no set length of music that puts you in the clear.
Music Sampling Permission
The best and legal way to avoid liability is to simply obtain permission from the copyright holder before sampling a piece of music. In this age of multiple songwriters, music publishers and record labels that may appear a daunting exercise. However, there are many websites with extensive music libraries that administer licenses for these purposes.
If you are only using the music sample for an event or public performance, then you likely would only need a public performance license. Such a license can be obtained from ASCAP, BMI or SESAC, which are music performing rights organizations that license the public performances of its members’ musical works. A public performance is defined as one that occurs in a public place where people gather (other than a small circle of a family or social acquaintances).
However, if you are using the music sample on a website, YouTube page or social media accounts, a public performance license be insufficient for these purposes. These uses involve rights such as synchronization of music with video or images and the possible use of the master sound recording. In that case, you will need to contact the song’s publisher and possibly the artist’s record label to negotiate the appropriate licenses with them.
ASCAP, BMI and SESAC do not issue mechanical and synchronization licenses, which means that to obtain such licenses you must negotiate directly with the songwriters or publishers. Additionally, a mechanical license does not grant the right to reproduce sound recordings, also known as “master use rights.” If you want to use an actual recording of the song instead of re-recording your own version, you must obtain permission from the copyright holder of the song recording as well, which is often a recording studio or label. Master use rights can only be obtained from the owner of the master recording, usually a record company.
Fair Use is a Defense Only
Absent securing the appropriate licenses for music sampling, you are hanging your hat on a defense to copyright infringement. If your music sampling falls under the permitted exception of “fair use,” you may be able to use it without permission, but if you’re wrong, you could face significant liability including statutory damages (up to $150,000 for willful infringement) and the opposing sides’s attorney’s fees (you get to pay your own attorney’s fees as well as the opposing side’s attorney’s fees).
Without permission, generally you can only use a small sample of another artist’s music if it falls under the “fair use” doctrine. The law does not specify the amount of the song you can use, such as a number of seconds or bars of music, before you are in violation of copyright law. In reality, you could be sued for copyright infringement for sampling even a few seconds of a song. As discussed in the earlier article, courts will consider four factors to determine whether or not it truly is fair use, including the purpose of the use, the nature of the song being sampled, the quantity of the original song that was sampled, and the impact on the original song.
Use that is non-commercial (i.e., for nonprofit educational purposes) is more likely to be considered fair use. Courts also will consider if the copyright holder is impacted by your use of the music sampling, such as if the public is less likely to purchase the original album of music because they can access the music through your new composition. Courts have not provided specific rules as to when music sampling is considered copyright infringement, although music samples used in parody, education or research are more likely to be considered fair use.
Get a License for Music Sampling
The best advice is to secure a license for your music sampling. It can be expensive, but the alternatives can be a multiple of that expense number. Just as Robin Thicke and Pharrell Williams and T.I. whether they regret obtaining a license for “Blurred Lines.” The cost for these licenses is not mandated by the law and can vary significantly based on the artist and your use of the song, such as the length of the sample and the final created product. The form of the license fee could be through a flat fee to use the sample, or could be based on how many records are created or sold, or could be based upon outright profits from your project.