So I'm looking @ Mos Def's liner notes to see if they used 1 or 2 songs by the Doors for "The Rape Over" & I don't see ANY acknowledgement of the Doors or Marvin Gaye (sampled for "Modern Marvel", I believe). Am I crazy or do these songs clearly contain samples? Where's the credit? Somebody school me...



.
[Edited 11/20/04 18:46pm]

It's almost as if they pay extra to NOT credit a sample these days. What else explains the lack of a James Brown credit in the liner notes for Alicia's Songs In A Minor?

VoicesCarry said:

Alicia also sampled Betty Wright(I believe), and the Isley Brothers on her new record. I didn't see any sample credits in there either, but she did have one for YDKMN. I thought that was weird.

dragondayz said:

It really is a disturbing trend. If you're unschooled, you'll think it's original, which is of course what they're counting on. If artists like Mos Def and Alicia are actually paying for the sample, then paying EXTRA to not give credit, that really speaks for their lack of artistry.

Or at least a lack of credibility.
[Edited 11/20/04 19:01pm]

if they use 8 seconds or less of a sample i don't think they have to mention it. it falls under the fair use doctrine of the u.s. copyright law. even if they loop that 8 seconds for 4 minutes...it won't need to be paid for or credited. basically as long as the piece they sample is used to create another original work, its all legal.

SassyBritches said:

I believe they changed the rules recently. Now if you sample anything, you apparently have to credit it. I'll try to find a news article on it.

I think any kind of sample should be credited, fuck that. I hear Marvin's voice all over "Modern Marvel" & Jim Morrison screaming all over "The Rape Over", not to mention the beat from a Doors song too, apparently. If it's a sound you didn't create yourself, give credit to whoever did. This is bool



.
[Edited 11/20/04 19:05pm]

CalhounSq said:

There's a current song that samples "Distant Lover", but doesn't give credit, either . Can't recall the title, though.
[Edited 11/20/04 19:06pm]

VoicesCarry said:

i know that copyright laws changed in 1998 with the sony bono copyright term extension act but i am unaware of any copyright credit changes. i know that adapted work or sampled work doesn't need to be paid for (though it may need to be credited) as long as an unsubstantial portion is used. the biggest issue is whether or not the adapted work would put the original creator or work at risk of financial losses. samples wouldn't threaten an existing work so they usually don't need to be paid for. unless its the chorus of a song or a substantial portion of the work.

From NOLO Law website:

Getting Permission for Sampling Others' Work by Attorney Richard Stim

Failure to get the proper permission when you sample an outside source (a music CD or a movie soundtrack) could lead to serious consequences.

If you use samples in your music you've probably gotten the message by now: Whenever you sample an outside source, you need to get legal permission for your usage, if you're planning to use the audio in your commercially released music. Failure to get the proper permission could lead to serious consequences. Not only could you get sued, but you might not be able to distribute your music to the public at all.

The process of getting permission from the owners of the sampled music is referred to as "sample clearance." When you sample music from a pop recording, you'll need two clearances: one from the copyright owner of the song, who is usually a music publisher, and the other from the copyright owner of the master tapes, which is usually a record company.
When Sample Clearance Is Required

In general, sample clearance is required only if you're planning to make copies of your music and distribute the copies to the pub­lic (it's not required for sampling at home).

Use of samples in live shows usually poses no problems either, since you're not making copies and the usage will be covered by the blan­ket license fees the owner of the venue pays to performing rights organizations such as Broadcast Music Incorporated (BMI) or American Society of Composers, Authors, and Publishers (ASCAP).

There are also a few instances when you may legally sample without permission even when you plan to distribute copies to the public: when you sample an inconsequential amount of material, when an average listener would not notice the similarities between your end product and the sample, and when your use of the sample falls under the "fair use" doctrine. For more information, see "Defending a Lack of Sample Clearance," below.
Typical Sample Clearance Fees

The costs for sample clearance are negotiable, and there are no standard fees. However, as a general rule, the music publisher usually wants an up-front "advance" payment (which could be anywhere between $250 and $5,000) plus a percentage of the song income (usually between 15% and 50%).

The owner of the master recording will also want an up-front payment (usually at least $1,000), plus a "rollover." A rollover is a payment that's made when a certain number of copies have been sold. Sometimes, instead of a rollover, the owner of the master may want a portion of future record royalties (although sampling consultants advise against this practice).

Sample clearance rates have become so steep that it’s often difficult for small inde­pendent labels to acquire clearance. For example, one inde­pendent artist with a recording budget of $20,000 spent $9,000 on up-front payments for two samples. As one music attorney put it, “Today, you pretty much have to be associated with a major to pay the rates.”

Some owners of source music won't even deal with independent or unsigned artists because they don't sense enough of a financial return to bother. "A lot of times if it's self-released, we say come back when you have a deal," says a sampling rep at one major music publisher. In other words, the publisher or label may take a laissez faire attitude until you're making money.

Here's the Catch-22: In order to get a signed sample clearance agreement, you'll probably have to provide the copyright owners with a recording that shows how much of the source you intend to use, and how you intend to use it. So you'll likely be doing your recording first, with no permission. If you then find that you can't get permission, a lot of hard work will have gone to waste.
How to Obtain Sample Clearance

Here are some ways an independent artist can obtain sample clearance:

• Find the copyright owners. The first step in obtaining per­mission is to locate the copyright owner(s) of both the song and the master recording. The song and the master recording will often be owned by different entities, and you need permission from both of them. Since it's always easiest to find the music publisher, you should start there. The best way to locate a publisher is through performing rights orga­nizations, such as BMI or ASCAP. These groups collect money for radio, TV, and other public performances of songs. (In Canada, the performing rights organization is The Society of Composers, Authors, and Music Publishers of Canada (SOCAN).)

You can locate the key information on the Internet by visiting the performing rights society web sites (www.bmi.com, www.ascap.com, or www.socan.ca) and determining which organization controls rights for the source song. (You may also find help at the Harry Fox website at www.harryfox.com.)

Some detective work may be required. BMI's searchable database includes more than 20 entries, for instance, for songs titled "Yesterday." If you can't locate the song you're looking for online, try phoning the performing rights organizations and ask for the "song indexing" department. Once you have the publisher's name and address, phone or write the publisher to deter­mine if they will grant clearance for the source music. Many publishers, unfortunately, have a policy not to grant permission for sampling.
tip Show Them the Money
If you're an independent or unsigned artist, you may be able to overcome the "never heard of you" syndrome by offering to make the payment up-front. If you show them that you can write the check to pay the advance, they'll be more inclined to deal with clearance.

If the publisher can't lead you to the owner of the master recording, you can check online record stores or the Phonolog directory at your local record shop to find the record company that is currently releasing the source music. Locating master owners may prove troublesome -- record companies may fold or sell their copyrights to other companies. In addition, rights in masters may revert to the original artists after a number of years. In that case, you may have to use the assistance of a clearance expert or sampling consultant.

• Use a clearance expert. For an hourly fee, sampling consultants can guide you through the clearance process. They will review the use of samples and advise the client of the expected budget and potential problems. Consultants can save you time and money because they're familiar with the procedures, costs, and key people who license rights at the major music publishing and record companies.
tip Have a Plan B
A common error is the failure to plan far enough ahead and to not have enough alternatives if a sample is rejected. Sometimes it can take months to get all of the approvals. Also, remember, many copyright owners (for example, the Beatles) have a no-sampling policy. If the sample request isn't approved, be prepared to replace the sample with something else.

• Recreate the sample. Some artists have avoided paying part of the sampling clearance fee by re-recording the sampled section. You will still need to seek permission from the music publisher, but not from the owner of the master recording. How does this work? Let's say you want to use a six-second sample from "Green Onions." Instead of sampling the original recording, you play the parts yourself and re-record the music to sound exactly like the original. In that case you have not infringed the master recording. (Due to a quirk in copyright law, you can only infringe a master recording if you actually copy it -- not if you imitate it). You will not need to seek permission from the master owner, and you don't need to pay any fees to the master owner.

• Find sample-friendly copyright owners. Some copy­right owners are happy to clear samples -- so much so that they encour­age the process. For example, copyright owners of songs by the Average White Band and the Gap Band have pro-actively sought to promote their music for sampling. Tommy Boy Records has also made it easy to acquire clearances.

• Contact the artist or songwriter directly. If you run into problems with a music publisher or owner of a master, you may have better luck contacting the artist directly. This works if the artist still has some say or control in what gets cleared. For example, Shirley Manson of Garbage wanted to use the line, "You're the talk of the town," at the end of a song. Lawyers for the band ordered her to drop it, but Shirley called up Chrissie Hynde, who sent the following letter to Garbage's attorneys: "I, Chrissie Hynde, hereby allow the rock band Garbage to sample my songs, my words, and indeed my very ass."
Operating Without Sample Clearance

Many artists releasing their own recordings can't obtain clearances -- either because they can't get the music publisher to respond to their phone calls or because they can't afford the fees. Using a sample without clearance is always risky.

If you are using an uncleared sample, you can lower your risks by making it unrecognizable, by not using the sample as the groove or hook, and by burying it in the mix. And of course, don't use the title of the source music in the title of your song.

As a practical matter, if you're only selling recordings at shows and don't expect to press more than 1,000 copies of a record, you run less risk for uncleared samples, because it's unlikely that the owner of the source recording will ever learn of your samples. However, if your recording becomes popular at clubs or on the radio, or if a major label wants to pick it up, you'll definitely have to deal with sample clearance.
Defending a Lack of Sample Clearance

In the event that you intend to proceed without clearance, you should be familiar with some legal principles. Under the copyright law, you may be in the clear in the following situations:

If your use of the sample isn't considered infringing. If you altered a sample so that an average listener comparing the two works (your composition and the source) can't hear any sub­stantial similarities, then there's no violation of the law. For example, a court determined that Run DMC's use of a drum sample from the 1973 Honey Drippers recording of "Impeach the President" was not infringing.

If your use of the sample is inconsequential. When the Beastie Boys recorded the song, “Pass the Mic,” they repeated a six-second sample from a song entitled “Choir” from an album by the award-winning flautist James Newton, Jr. The sample consisted of a three-note pattern: C, D-flat, C. Newton simultaneously sang and played these notes, a method known as vocalization. The Beastie Boys obtained permission to sample from the owner of the sound recording copyright (the record company) but not from Newton, the owner of the musical composition copyright. Newton, sued, and in 2002, a federal judge ruled that the three-note pattern from “Choir” was not, by itself, a protectible composition and that permission from Newton was not necessary. In other words, the three-note pattern, even though it included Newton’s rare vocalization skills, was not original enough to merit a payment and it was labeled “de minimis” (too small to matter). Newton v. Diamond, 204 F. Supp. 2d 1244, (N.D. Cal. 2002).

Note that according to a Sixth Circuit ruling (Bridgeport Music Inc. v. Dimension Films, No. 02-6251 (6th Cir. 2004)), this "de minimis" argument may apply only to musical copyrights, not sound recording copyrights. In the Bridgeport case, the appeals court held that using any identifiable musical sound recording segment without permission -- even as small as two seconds -- was a violation of copyright law.

If your use of the sample qualifies as a fair use. Fair use is the right to copy a portion of a copyrighted work without permission because your use is for a limited purpose, such as for educational use in a classroom or to comment upon, criticize, or parody the work being sampled. For example, the rap group 2 Live Crew's recreation of the musical tag and the open­ing lyric line from Roy Orbison's "Oh Pretty Woman" was considered to be a fair use because it was limited (they only used the riff once) and it was for purposes of parody.

There's a widespread myth in the sampling community that "less than two seconds is fair use." Don't believe it. What a judge and jury will feel is fair use depends on a number of factors other than the length of the sample. Generally, when reviewing fair use questions, courts are looking for three things:

* You did not take a substantial amount of the orig­inal work.
* You transformed the material in some way.
* You did not cause significant financial harm to the copyright owner.

Also, some courts only apply this fair use rule to the musical composition copyright, not the sound recording copyright.

In principle, it's good to know these defenses, but the obvious difficulty with all of them is that they are defenses. The time you'll use them is when someone is coming after you. There is no predictable way to guarantee that you'll win your court case based on these defenses (assuming you can even afford to hire attorneys to fight the case).

You'll find yourself on safer legal ground if you seek permission. This is especially true if you're signed to a record label and your record contract puts the burden of sample clearance on your shoulders. Your contract probably contains an indemnity clause, which means that if you and the record company are sued, you must pay the record company's legal costs. Ouch!
Publicity Releases

There's an extra wrinkle if you use a sample for purposes of selling or endorsing a product (for example in a Volkswagen ad), and the sampled artist is identifiable. In cases like this, you also need to get the source artist's consent. That's because the ad creates the impression of an endorsement. Without the consent, the source artist could sue for what is known as the violation of the "right of publicity." (The same would be true if you imi­tated the source artist's voice without sampling it.) So when you use a sam­ple for an advertising agency or other commercial client, be aware that a third type of clearance or "release" may be necessary.
Pre-Cleared Sample Discs

What about sample CDs -- recordings that contain sounds and riffs specifically sold to be used in samplers? Most sample discs are "pre-cleared," which means that by buying the disc, you're automatically granted per­mission for music usage without the payment of any further fees. However, the permitted use of pre-cleared samples may vary from one disc to another. Don't assume you can use the sample in whatever way you like: Review the documentation that comes with the CD for any license information.

Most companies that makes sample discs grant the user a "nonex­clusive license" to use the samples. A "license" is a grant of permission to do something (that is, use the sample in your composition). "Nonexclusive" means that you're not the only person who can use the samples. All buyers of these sample discs share the right to use them. You're not buying the right to redistribute the samples, however, only the right to use them in musical works.

If you find that your purchase of the disc doesn't grant the rights you need, contact the soundware manufacturer to see if you're eligible for a refund.


Getting Permission for Sa...hers' Work
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=

More than you were looking for i'm sure.
But I believe the bottom line is if you've done all the proper legal moves above, giving credit on the record is not mandatory.

Someone else might have more info.

tA

Tribal Disorder

http://www.soundclick.com...rmusic.htm

Recreate the sample. Some artists have avoided paying part of the sampling clearance fee by re-recording the sampled section. You will still need to seek permission from the music publisher, but not from the owner of the master recording. How does this work? Let's say you want to use a six-second sample from "Green Onions." Instead of sampling the original recording, you play the parts yourself and re-record the music to sound exactly like the original. In that case you have not infringed the master recording. (Due to a quirk in copyright law, you can only infringe a master recording if you actually copy it -- not if you imitate it). You will not need to seek permission from the master owner, and you don't need to pay any fees to the master owner.

etc.

Well, now we know.

Thanks, TA! Great read.
[Edited 11/20/04 19:18pm]

theAudience said:

But shouldn't they WANT to give credit? Out of respect? I mean, they'd want their work acknowleged wouldn't they? I don't even understand the disregard for a mere mention

VoicesCarry said:

Laws suck I'd be mad if I were the original artist

CalhounSq said:

To make the young 'uns think they're "like, so totally original".

i love all the loopholes...so f'n crazy! the bottom line is that decisions in intellectual property are frequently decided on a case by case basis unless the sample is a direct infringement. the safest thing to do to get your ass covered is to get permission.

thanks, ta, for an interesting read!
[Edited 11/20/04 19:23pm]

dragondayz said:

My sister bought Missy's "Under Construction" album, which is packed, I mean packed with samples (or "interpertations"). I looked it over like ten times and there are no credits for samples but somebody I talked asked about it insisted that they have to acknowledge the samples and pay the people but they might not have to list it on the album.

VoicesCarry said:

You're quite welcome VC.
(damn you read fast)

NOLO is a good source for free DYI legal info here in the States.

tA

Tribal Disorder

http://www.soundclick.com...rmusic.htm

VoicesCarry said:

YOu have to acknowledge the songwriter in the credits? This was something the Missy album never did. I'm not sure if those were samples as in things taken from other albums or things recreated but either way, the songs and songwriters were never given credit from what I saw).

VoicesCarry said:

It's really sad - how everything eventually turns to dust & history gets buried little by little. I know the Marvin song (What's Going On) but I wasn't sure if I'd heard the Doors song before so I wanted to know what it was. I had to find it in an article that it's a song called "Five to One", instead of them just listing the original recording. BASTIDS!

CalhounSq said:

I would give the artist credit without question, even if I didn't legally have to.
It just seems like the "human" thing to do.

tA

Tribal Disorder

http://www.soundclick.com...rmusic.htm

VinnyM27 said:

Damn shame...

theAudience said:

EXACTLY... human & artist to artist respect, you know?

CalhounSq said:

Yeah, I think 99.99999% of all the brilliant soul/R&B records have been made, and most of what we're gonna hear will be recycled because no one will remember it. When people like Alicia and Usher are called "brilliant", you know you've really reached the end of the road. And P. Diddy is the "ideal" record mogul of today. I miss the decades of Motown, even though I wasn't alive.

Damn why can't there be another Marvin Gaye? I suppose the answer to that is that there will only ever be one, so we'd better be happy with what we've got from him.
[Edited 11/20/04 19:36pm]

theAudience said:

Definitely. But I don't think "human" is in many of their vocabularies. At least not when it comes to selfish lust for acclaim.

VoicesCarry said:

I agree but I just find it hard to believe that artists like Marvin Gaye, Aretha, Stevie and etc. didn't sample. What made their minds more advanced musically back then? To my knowledge the music industry has always been the music industry so I don't see how sampling was impossible to happen in those days.

VoicesCarry said:

That's a frightening thought. I'll never forget those great SONGS.

On that very subject, I caught RRHOFer Martha Reeves on Tony Brown's Journal today.
(catch it if you can)

What a woman. And what great stories she had to tell about the heydays of Hitsville U.S.A..
She made mention of how Martha and The Vandellas lost the writing team of Holland/Dozier/Holland to "those other girls" because one of them knew how to say "Bar-ryyyyy" a certain way.

She has a new CD out...



...Home To You

tA

Tribal Disorder

http://www.soundclick.com...rmusic.htm
[Edited 11/20/04 19:50pm]

dragondayz said:

I think because they were actual musicians who didn't take the easy way out.

The Funk Brothers didn't need to sample. Neither did HDH, Smokey, Marvin, etc.
[Edited 11/20/04 19:50pm]

theAudience said:

Thanks, I love her and I'll definitely check her new disc out. It's so telling that Motown culled her from their secretarial staff as a background singer initially, but today we need to put on huge productions like American Idol to find meager singing talent that will never amount to anything artistically. Kind of tells you how talented the people at Motown were in general.

VoicesCarry said:

But my thing is, if they did would we ever know?

I also wonder how long they waited between releases of their albums. I know that nowadays if your off more than two years the public seems to loose interest. I wonder if the time limit they put on artists plays a factor in the artist laziness?

dragondayz said:

Yes. And Motown used to release albums every few months for some major artists (in the 60's, at least, it was like a factory).