1-16) Define "sampling" and describe how to legally do it.

We will continue our discussion on Copyright Basics with "sampling." Sampling is something that many of today’s artists—rap artists especially—do not fully understand and, as a result, they could face potential CRIMINAL liability for some of their productions.

Sampling is defined as using previously recorded sounds, voices, or music in a new composition or in a new configuration . This new use could be as the musical backbeat of a rap tune, to using snippets of a sound as an accent, such as orchestral "stab" of a horn section. Rap music relies heavily on sampled music, but it is far from the only form of music to do so: country, rock, pop, and R&B productions have all utilized sampled sounds, beats, hooks, and rhythms to spice up their music.

Sampling as a whole became a useful element of music production around the mid-80’s when budget-priced synthesizers enabled the user to plug a microphone into them and record small portions of everyday sounds and tune them across the length of the keyboard. These new sounds could then be synchronized with other elements of the production in creative ways to make the project very unique. Many artists, experimenting even further with this technology, began incorporating favored rhythms from old records to make new music. Some even began using TV theme songs in their new projects.

As the use of sampling spread, very glaring and obvious question was being asked by some: Is it legal?

In the mid-80s, many artists, performers and musicians actively involved in the music industry had some inkling as to how money was made for those involved in it. Money was made every time a record was sold, played on the radio, or performed in concert. This seemed obvious.

What became a not-so-obvious situation was the now rampant use of sampled records. Many artists reasoned that since only a small slice of a song was being sampled, they didn’t had to worry about paying or getting permission to utilize the material. It was around this time that a "de facto" standard of legality was adopted: using 8 bars or less of a song in a sample was OK, and no permission by anyone was needed. Later, this "standard" was revised to include the provision that using up to 30 seconds of a song was permissible.

All this began to change when artists like James Brown began to object.

By the late 80’s and early 90’s, sampling had become a VERY common occurrence in music. Many producers had even begun to make their mark by only using samples of a certain type or genre in their music. Parliament/Funkadelic and others in the Funk family such as Rick James and Cameo began to be sampled more and more. James Brown’s records became attractive to these producers because it was with Brown that most of Funk music began. Samples of Brown could be heard in many, many compositions, and Brown soon filed suit claiming copyright infringement. And he won. Brown’s lawsuit forced the users of his sampled music to pay him for that use. It also forced artists and producers to consider the consequences of their sampling practices, but it was another lawsuit that really pushed the issue to the forefront.

In 1991, the rapper Biz Markie and his record label, Cold Chillin’ Records, lost a lawsuit filed by Gilbert O’Sullivan, a 70s era singer/songwriter. O’Sullivan filed suit due to Biz Markie using a sample of his hit song, "Alone Again (Naturally)" without his permission. Biz Markie and his label were brought to court where it was revealed that they had actually requested permission to use the song but O’Sullivan had refused. Biz Markie and ColdChillin’ proceeded to use it anyway, and O’Sullivan sued. In court, O’Sullivan even brought a copy of the letter Biz Markie and his label sent requesting the sample. This was enough for the court to rule in favor of O’Sullivan.

The judge in the case, Kevin Duffy, then made national headlines with his ruling. First and foremost, he questioned the "artistry" of someone who had to rely on "stolen" material to create another work. Next, he ordered that EVERY copy of Biz Markie’s album which contained the O’Sullivan sample be removed from store shelves and destroyed. He further ordered that the rapper be referred to the District Attorney for possible criminal prosecution of copyright infringement.

It is estimated that hundreds of thousands of dollars were lost by Biz Markie and Cold Chillin’ Records in fines, attorney fees, lost productivity, and destroyed merchandise. Even Biz Markie’s career suffered irreparable damage, culminating in his being dropped by the label a few years later.

Since this precedent-setting case, artists desiring to use other people’s songs in their productions have had to get written permission, or "clearances," from the copyright holder — usually the publisher — before they can proceed any further. These clearances are obtained for a fee and can range in price from several hundred to several hundred thousand dollars, depending upon their usage in the new composition. If the use of the sample is substantial, some publishers can even demand a part-ownership in the new song.

This process to clear a sample can be quite extensive, so it is highly advisable to begin negotiations well before the new production is to be released. Over the years, several companies have been formed which handle this sometimes tedious task of clearing samples. These firms usually charge by the hour or simply set a flat fee for their work, but with any of these methods you choose, MAKE SURE YOU GET THE PERMISSION!