Summary

• A derivative musical work is one based on or derived from one or more already existing musical compositions and/or recordings. Examples of this include samples, interpolations and covers.
• Due to the copyright protection afforded to the owners of musical works and compositions, it is necessary to gain permission to use (ie ‘clear’) copyrighted works before incorporating them into new works.
• As the copyright holders are not obligated to license the rights in many cases, clearance can bring with it a great number of terms and conditions for an artiste wishing to use a sample. Introduction Music, as a form of creative expression, is protected by copyright law. Consequently, creating a new work using pre-existing music (or a ‘derivative work’) such as a sample or an interpolation typically necessitates obtaining a licence. Securing samples legally as an independent musician can be challenging and costly. Therefore, it is imperative to understand the laws, rules, and regulations regarding music samples – or have someone to guide you. Samples, interpolations, covers, and remixes A sample is a ‘copied and pasted’ portion of a sound recording (whether music, speech, a ‘jingle’, or another form of audio) that has been repurposed and integrated into a new song. As an artiste, you can technically sample your own song (if you own the rights to it). Sampling is an established element of the creative process in many genres, but its viability for an artiste can vary depending on the stance of the owner of the recording in question. An example would be Odunsi (The Engine)’s sampling of Ruff Rugged & Raw’s ‘Wetin Dey’ in his track of the same name, or GJtheCaesar’s sampling of Adewale Ayuba’s ‘Koloba Koloba’ in his track ‘Fuji Rap Riddim’. An interpolation for the purposes of this research note, in our view, is when an artiste uses any portion of lyrics or a melody (the ‘composition’) from another copyrighted song that that artiste did not write within a new song (a ‘re-recording’), but does not integrate any part of another existing original audio recording of that composition. This will typically manifest in an interpolating artiste giving credit to the author(s) of the composition, but not to the performers of the original recording. For example, we understand that Flo Rida and Ke$ha’s song “Right Round” interpolates Dead or Alive’s 1985 release “You Spin Me Round (Like a Record)”, but does not sample it.

A cover is an identical or near identical re-recording or reperformance of an existing song, without any major changes to the lyrics or melody – a cover may entail elements of both a sample and/or an interpolation, but not every sample or every interpolation will be a ‘cover’. An interpolation of an entire song would be a cover.

A remix is a reworking of a previous song to make a new version of that song by adding, removing, and/or changing parts of the song – whether the person remixing has access to the original ‘stems’ (the underlying files) or not. In practice, ‘sampling’ utilises more originality, as it entails making a completely new song, whereas a ‘remix’ generally draws from and uses more of a previous song with a view to creating a new version of that song, rather than being aimed at creating a completely original song itself. Nevertheless, this is open to artistic interpretation.

Music copyrights and clearance companies

For any given recording of a song, there are two separate copyright holders. First, the holder(s) of the composition copyright – being the person or persons responsible for the arrangement of lyrics, notes, melodies, and chords in a specific order – are afforded protection. A second set of rights protects a specific sound recording and does not extend to any other rendition or version, even if performed by the same artiste. The finalised original sound recordings are commonly referred to as ‘masters’. There can be multiple masters in relation to the same composition. This or these will usually be owned by the record label who originally released the track, if not by the artiste themselves. For instance, the song “New York, New York” written by John Kander and Fred Ebb we understand is published by Sony Music Publishing, whereas the various recordings of it, such as those by Frank Sinatra, are owned by different record labels. A quick check of the ‘song credits’ on Spotify for Frank Sinatra’s version of this song still apportions songwriting credits to John Kander and Frank Ebb, whilst affording Frank Sinatra ‘performance’ credit.

An artiste signed to a record label or publishing company can reliably expect these entities to handle the clearance process, but if this is not the case, artistes can choose to negotiate independently or employ a specialist sample clearance company to help to navigate the process, such as Harry Fox Agency, DMG Clearances, or Sample Clearance.

It is also important to note that where there are multiple songwriters, unless there is paperwork to the contrary, the co-writers each own undivided, equal interests in the whole composition. For this to apply, the contribution from each party must be inseparable, and their individual contributions must combine to form a complete creation that is not comprised of distinct elements – such as would be the case if one person solely ‘owned’ the lyrics, but another person solely ‘owned’ the music. Any change to a jointly owned track (including the removal and replacement of lyrics) will be deemed a derived work of an original joint work.

There may also be joint holders of master recording copyrights. In both such cases, the key takeaway is that clearances may need to be sought from more than just two persons.

Other types of clearances

For an artiste planning to use a copyrighted work, aside from sample licences, other types of licences may be necessary depending on how they plan to make use of it. For example, mechanical licences cover activities such as recording cover versions, releasing new recordings of existing songs, or distributing music either physically or digitally. In these cases, the artistes’ creation of a new recording typically means that only clearance from the composition rightsholder is necessary.

In the UK, musicians require a mechanical licence from the original writer or publisher to record and release cover songs. However, these artistes don’t need a licence to cover a song live – this is the responsibility of the venue at which they are performing that song live, who will typically acquire PPL-PRS’ all-encompassing ‘TheMusicLicence’ (and any other local entertainment and/or broadcasting licences) ahead of hosting artistes for such performances.

A separate compulsory mechanical licence or direct cover song licence is required to actually record and commercially release a cover song. In the UK, a ‘compulsory’ licence can be sought and acquired if a song being covered is registered with the Mechanical-Copyright Protection Society (MCPS), the necessary fee is paid, and the relevant conditions are met (including that the song is for recording use only, major changes are not being made, and that the song has already been commercially released previously). The rightsholder is deemed to have granted permission – subject to their royalties rights via MCPS. If the song is not registered via MCPS, a direct mechanical licence will have to be sought – this is particularly important if an artiste is planning on releasing a cover song on a physical format or for digital download. Additional licences may be required to disseminate covers captured on video (as opposed to audio-only recordings).

Synchronisation licences or (‘syncs’) are designed to grant permission for parties other than the rightsholder(s) to use a master in other types of media. Once gained, these grant permission for the licence holder to use copyrighted works in audiovisual projects. This includes films, TV shows, commercials, video games, or online videos where music is synchronised with visual content. As with sampling, synchronisation licences require permission from both the copyright holder of the composition and the copyright holder of the recording.

In the case of film and television samples, the conditions attached to any clearance are often prohibitive. When dealing with samples of speech from films or television in particular, obtaining such clearance can be particularly challenging due to the multiple layers of rights involved and potential additional permissions required from actors.

Clearing music samples

Sampling from smaller artistes may prove more attractive to musicians due to there being a higher likelihood of securing clearance from, and the more immediate access to, the relevant copyright holders. Nevertheless, when seeking permission to use a sample, an artiste must always gain permission for use of both copyrights – whatever the size of the relevant songwriter(s) or recording artistes. The composition rights will generally be owned by the music publisher, or the songwriter(s), and the recording of that composition will typically be owned by a record label, the artistes, or a producer. The process of finding the original source of a sample and clearing it is often a lengthy one, making it beneficial to secure permission early to avoid delays. It is also why it is industry standard for the two respective copyrights to ‘sit’ in one place, wherever possible.

Identifying the Rights Holders

The first step in the sampling clearance process is to actually identify the relevant rights holders for each of the copyrights in question.

Information on the publishing rights holder can be found in music publishing databases held by performance rights organisations (‘PROs’) such as ASCAP, BMI, and PRS. Membership of the relevant PRO may be required for full access to these databases. Resources such as SESAC and MCPS can provide up-to-date contact information for copyright holders. The recording rights are usually owned by the artiste, label, or another third party. A quick search on platforms like Google, Wikipedia, or Spotify can often provide the necessary contact information.

As an artiste, before contacting the copyright holder(s) it is important to have first decided upon and established key details such as:

• the proposed length of the sample;
• how many times it is featured in the new song;
• which part of the original song is being sampled; and
• the artiste’s plans for the new song. Once the appropriate contacts have been identified, terms of use must be negotiated. The cost of clearing a sample can vary significantly based on factors such as the sample’s length, the original track’s popularity, and the artiste’s status. For example, Burna Boy’s sample use of Toni Braxton’s ‘He Wasn’t Man Enough’ recording in his hit single ‘Last Last’ is rumoured to set him back 60% in royalty income whenever his track is played. In sum, record companies might request a flat fee (ie a ‘’buy-out’), or a percentage of the profits, possibly along with an advance payment. Sometimes a sample clearance can be given completely free of charge. However, it is important to note that the owner of a recording may have every right to refuse to negotiate the price, or simply refuse to grant sampling rights at all. Next steps and Infringement As the sample rights clearance process is a two stage-process, if permission for use of a composition is successfully obtained, an artiste can either choose to seek further clearance from the copyright holder of the recording they wish to sample, or use a recreation of the recording instead – therefore effectively bypassing the need to secure permission from a record label. If permission is denied by the record label or rights owner for use of a recording or their terms are prohibitively expensive, an artiste may opt to re-record the sample independently or hire someone to do so. This approach avoids using the original recording, thereby negating the need for additional permission – to stress, clearance from any music publisher or composition rightsholder would still be required.

Put simply, re-recording circumvents the need for sound recording rights, but still necessitates obtaining the musical composition rights.

This approach extends to recorded ‘covers’ of songs created for commercial purposes, which require licences in order for artistes to record and distribute cover songs they have created. As mentioned above, as a live performance of a cover is not technically a ‘publication’, using a cover song in a live performance requires the least additional licensing. The onus is on a venue to procure the necessary public performances licence(s). As non-commercial works, covers created for private consumption also should not require licences to remain compliant with copyright law.

Licensing for samples can become complex depending on the length and nature of the music sample. Elements such as the significance of the section sampled from the original work play a role in determining what licence is necessary, if any. A very brief sample, for example, may only capture generic features of the copyrighted work such as its beat or basic chord progressions. This can mean that from time to time an artiste may in practice only actually require a licence for the sound recording. Longer samples, embodying more identifiable features of the work, as detailed previously, will require permissions for both the sound recording and the musical composition.

The uniqueness of each master and each use case varies, making the licence application process increasingly complex. Use of a sample without the correct licence could result in copyright infringement, and defending such a case can be significantly more costly than obtaining the proper licence. For this reason, many artistes choose to utilise the expertise of legal and industry professionals at the application stage.

Once cleared, it is important that the new song (whether sample, interpolation, or cover (or remix)) has its own separate International Standard Recording Code (‘ISRC’) code for identification purposes, in order to distinguish the new recording from other similar recordings. If an artiste is planning on performing a cover of a popular song, chances are that many other artistes have covered or will cover the same song.

Sampling v Interpolation

While sampling involves taking a portion of a pre-existing recording and incorporating it into a new track, interpolation refers to re-recording a segment of music or lyrics from another artiste’s song. For sampling, permission is needed for both the master recording and the underlying composition. Conversely, interpolation only requires permission for the underlying composition, as it does not use the original recording. This distinction is significant because clearing samples can be time-consuming and expensive, leading many artistes to opt for interpolation to reduce the number of permissions needed and save costs.

If either or any rights holder denies permission, it is essential to respect their decision and avoid using the sample, to prevent legal repercussions. Alternatively, if creating something completely new is not a preferred option for an artiste, consider using pre-cleared samples. Much like the samples that subscribers to Tracklib enjoy and are afforded access to, many of these pre-cleared samples are readily available online.

Conclusion

Understanding copyright law and the necessity of obtaining proper clearances for both the sound recording and the underlying composition is crucial. While this process can be time-consuming and costly, it ensures that artistes respect the intellectual property rights of others and avoid potential legal disputes. For those who find sample clearance challenging, considering interpolation or using pre-cleared samples can be viable alternatives. Ultimately, thorough knowledge and careful navigation of the legal landscape surrounding music sampling will enable artistes to create innovative works while maintaining integrity. If in doubt, seek clearance or professional guidance and support.

~ Oyin Olatuyi, Eku Williams, Aji Ayorinde