Clearing music samples

A common question asked by musicians and producers is whether they need to obtain approval for the inclusion of a pre-existing piece of music or ‘sample’ in any new recording. If approval is required, then what process will they have to go through to obtain clearance? For the uninitiated, the term ‘clearing a sample’ refers to obtaining the legal rights to use music, lyrics and/or recordings that are owned by someone else.

Do I really need to clear a sample?
As a rule of thumb the answer to this question has to be “Yes – every time”. There are some circumstances where a sample will not need to be cleared, e.g. because it is in the public domain and is available from sites such as the Open Music Archive. However, use of the vast majority of samples will almost certainly require formal, written clearance, payment of a licence fee and/or a royalty.

The consequences of not obtaining clearance…
A review of some of the cases around the unlawful use of samples, show that failure to obtain clearance can prove expensive.

DNA and the Tom’s Diner Case – DNA had to pay £4,000 for remixing Suzanne Vega’s song “Tom’s Diner”. It is understood that Vega’s label acquired the rights to the remix and re-released the record. The re-release went on to become a much larger hit than Vega had with the original song. Although this was seen as an amicable, out-of-court settlement, DNA had to pay a fine and lost the track. Whether any future royalties were shared with DNA remains a mystery.

Robbie Williams and Jesus in a Camper Van – Robbie Williams had to remove the track “Jesus in a Camper Van” from his album “I’ve Been Expecting You” because it infringed the copyright in a track “I’m The Way” published by Ludlow Music Inc. You can imagine how delighted Williams’ label was! In addition, Williams had to pay 25% of the income already received fom album sales that included the infringing track, amounting to some £50,000.

The Verve and The Rolling Stones – The Verve track “Bitter Sweet Symphony” included an uncleared sample of The Rolling Stones’ “The Last Time”. The Verve had little option but to agree to allow Mick Jagger and Keith Richards to receive 100% of the songwriting credit for the track.

How do I clear a sample?
Clearing a sample is, in theory, a relatively simple process – you are just asking the owner of the copyright in a recording if you can use part of that recording to include in your own work. Our 6 simple steps for obtaining clearance are:

  1. Allow plenty of time. This process can take some weeks!
  2. Identify what you want to sample.
    For example, I may want to sample part of “Dirty Rain” from Ryan Adams’ album “Ashes & Fire”.
  3. Identify the record label that owns the track you want to sample.
    The sleeve notes tell me that Pax-Am Records/Columbia is Ryan Adams’ record label.
  4. Identify the publisher of the track you want to sample.
    This can be a little more difficult. If you cannot find the publisher then contact PRS for Music who provide a sample clearance service.
    In our example, a little research on the BMI website tells me that Bug Music is the publisher for “Ashes & Fire”. I subsequently discover that Bug Music has been acquired by BMG Rights Management.
  5. Write to the record label and the publisher and ask for their consent to your using the sample.
    You’ll need to tell them who you are; what part of the recording you want to use; and describe how you will use it – preferably by providing an MP3 recording of the new track.
    In our example, I’d write toPax-Am Records and BMG Rights Management.
  6. If consent is provided in principle then you will need to agree the terms of the agreement. This will typically mean agreeing a fee for use of the sample and a licence agreement that will permit you to use the sample.
Please be aware that some record companies and publishers may refuse to allow you to sample the track. They aren’t obliged to give reasons. If you find yourself in this position then you should look for another sample to use – particularly as the label or publisher will have been alerted of your desire to use the sample!
Alternatively, you may find that the record label isn’t willing to grant permission but the publisher is. In this scenario you could have the sample re-recorded so as to sound like the original.

How much does sample clearance cost?
The cost of clearing a sample vary enormously. Clearance of a sample from a recognisable track by a big name artist will typically cost far more than a sample from a new artist with modest sales.

For example, it is reported that Dido was happy to allow Eminem to sample her track “Thank You” in “Stan”. This presumably occurred without charge, but the resulting notoriety for Dido was clearly well worth it!

Typically, record companies will charge a fixed sum to clear use of a sample. It is not unusual for a further sum to be payable in the event the new recording is successful. The record label may require an initial clearance fee of, say, £1,000 with a further £1,000 payable when sales reach 5,000 copies.

Publishers tend to be content with a percentage of the publishing income from the new recording. Depending on the extent of the sample, this can be up to 100% of the total publishing income, although a lower percentage is usually agreed.

Register your sample
Once you have obtained clearance from both the record label and the publisher, you’re free to use the sample in your new recording. At this point in time you should register the new recording with PRS for Music. This will ensure that you get paid when the new recording is played, say, on radio, and that the relevant shares are properly recognised by PRS for Music.

Sample Clearance Service
Legality offers a sample clearance service for a fixed fee of £295 + VAT per sample. This includes an examination of your sample, identification of the relevant record label and publisher, a clearance letter to both record label and publisher, and negotiation of terms and fees. For more details please call Mark Roberts on 0161 826 9309.

Mark Roberts

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