Sampling: History & Copyright Laws
Sampling: History & Copyright Laws
When samplers first came about in the mid 1980's they truly revolutionized the way that music was made and pushed the boundaries of what could be done, spawning new genres and waves of music.
A sampler was essentially a piece of hardware that you could use, with no built in sounds, or any way to generate them. You would be responsible for sourcing your own sounds and loading them in, or 'programming' them. The sounds you chose could then be played back and arranged in a sequencer of your choice, and you would have a song. Of course, you could get your sounds from a range of places- records that already existed, sounds that you had created or recorded yourself, film soundtracks- the list goes on, which made Samplers a very personal piece of equipment.
The Akai S900, which cost around $5,000 in the mid 1980’s, provided just 9 seconds of 12 bit, mono sampling time. That was only enough memory for a drum loop of 1 or 2 bars and a few other single drum hit sounds. This gave birth to genres like Hip-Hop, with pioneers like The Bomb Squad who produced Public Enemy's Rebel Without A Pause album back in 1986, using now infamous drum "breaks" like James Brown's "Funky Drummer." Many genres were spawned after this, along the same lines- take Jungle for instance- where a sped up version of another break "Amen, Brother" by The Winstons (affectionately known as the Amen break) was used often by many producers in the genre and became an identifier of the genre itself.
A sampler wasn't just used for sampling drum breaks though, and as time went on you'd find many people using them in a variety of interesting ways- sampling vocals and chopping them up to retrigger them, or melodies from instruments. Sampling began to grow and expand beyond simplistic loops, and the sampler morphed through many different iterations. Take the Akai MPC series of drum machines- largely used to chop up and retrigger drums or other loops, but a hugely influential machine in the development of Hip-Hop and Rap music, as it had 16 pads that acted as triggers. As time and computing got better, samplers moved to be in the box, but gained further abilities, like bring able to 'multi-sample' which made for accurate and playable sample libraries of instruments like pianos and bass guitars, even hardware synthesizers.
These days, software developers such as Serato “Sample”, “Kontakt” by Native Instruments, and Logic’s very own Sampler and Quick Sampler make samplers much more accessible and affordable.
Samplers allow people who haven't had any formal training in an instrument to cut and paste, arrange and re-arrange sounds they have got from many places in order to create their very own music, often distinct sounding. This notion of getting music from wherever you like has thrown up a whole heap of copyright law (breaking!) issues, but more about that later. For now your samplers blank canvas awaits you.
One question that often arises for those new to sampling is, where can I get sounds for my sampler from. The answer is quite simple- everywhere. But to help you a little, we'll point you in some directions we find to be quite common:
Sampling from Records, CDs, Videos and DVDs: This might seem to be the most obvious, but can be a highly fertile area for the samplers. Be warned: if you intend to use such samples in a track for commercial release on a major label It will be wise to clear the sample with the copyright owners first.
• Thrift Shops: A favourite amongst producers. These are a great source for long forgotten records, videos, CDs etc that are so obscure that hopefully no court case will result, especially if you’re sampling “easy listening” piano riffs and cheesy 1970’s fitness records etc. Many artists, such as DJ Shadow, have fun creating tunes based around this type of source material.
• Local Library: Remember your local library? If you’re lucky, it may contain a music section that you can borrow. This is a great source for World music, Sound effects or just checking out music you have never explored before. The Library should also have a “Talking books” section which is obviously a great way of obtaining vocal/speech samples.
• Internet: Though it is a vast, expansive place- this is a great way of not only obtaining music very cheaply but some manufacturers of sample CDs & sample libraries also have web sites that operate a “try before you buy” policy for downloading samples. Check out splice.com & sounds.com which are 2 of the top sources for Loops and Samples. It's also not unheard of for people to sample from sites like Youtube- though again beware of copyright laws. There's actually a shedload of websites that will offer you free samples that are copyright free also- they will have a 'creative commons' license, check out bbcsfx.acropolis.org.uk as a starting point for sounds you can bend and mashup to sound like whatever you might need them to!
• Live Sampling: Sampling your own sounds remains the most creative and satisfying pursuit for most users. Sounds are frequently recorded onto a small, high quality recorder and subsequently transferred to a sampler in the studio. People have sampled themselves singing into their phone, or the sound of the train or even resampled their own existing songs they were gonna do away with.
There's so many places and ideas and the wonderful thing about a sampler is that you can do whatever the hell you like with a sound you get from the most random places!
Let's just get the obvious out of the way here- you can't just go around using parts of other people's work, throwing them into your sampler and then releasing a record- without 'clearing' the sample. In essence, this means you cannot infringe on anyones copyright- because they own the right to determine who can and can't copy their work and you need to ask permission if you would like to use their already released work as part of yours. The basis of this is Copyright Law.
It's a good idea for you to have a basic understanding of copyright law to know what you can and can't do when it comes to sampling. Copyright law protects the works of a composer, so for instance, if you were to record a song you would have copyright of that song. You have the permission and the right to sell that song or to make copies of that song or to make any work that is derivative of it. Copyright law is there to protect the artistic works of a creator, so when it comes to you using somebody else's work, if you sample someone else's music you'll have to ask for their permission- and the likelihood is that you would have to pay for the privilege of doing so. Any existing works that have been released by someone are protected by copyright unless they are 'royalty free'- which for instance Apple Loops are- if you fail to ask for permission or clear sample you can end up in a nightmare scenario.
We have seen the results of this first hand on countless occasions- take for instance Massive Attack’s first album Blue Lines. It was released without having any sample clearance in place prior to it going out to the public. The album was almost taken off the shelves as a result. It also resulted in the band losing all of their publishing rights for this album. A similar situation occurred with The Verve and their huge hit, "Bittersweet Symphony." You'll also find cases that went in the sampling parties favor, like Jay-Z and the case of "Big Pimpin'."
Over the years this uncleared samples foraging has been employed heavily by record companies and has been seen as a great new source of income for them. Reportedly, huge acts like Michael Jackson employed a single person to listen to as much new music as humanly possible that was being released to see if any of it contained any of his music and if so… The “offending” artists were served accordingly. These days most large major record companies employ a department to execute this role, or outsource the role to other companies that have been setup to do just this task! With the advent of music going digital- this has become even easier to do- I'm sure you've seen the notice on a Youtube video where they say "This music is owned by xxxx Music" and you're unable to play the song! That's an example of them using technology to order a cease and desist to people who have no rights or license to the music, and potentially profit off something that is not theirs.
Three different bodies can own the original piece of music, making the process of clearing a sample a bit of a longwinded one.
1- The performance - This is owned and one will need the permission of the original “musicians” who played on the sample. This can become very difficult sometimes, especially if the musicians are now dead, as you will then have to get permission from an estate. 2- The recording - This is generally owned by the record company who paid for the original recording. Therefore one will definitely have to ask for permission and probably have to pay for the privilege of using it.
3- The music - This is owned by the writers of the composition. However, sometimes a song can also be part owned by a publisher. The publisher will basically split the ownership-generated royalties of a writer’s music with them generally at a rate of 25% for themselves and 75% to the writer. You, as a writer, may even receive an advance payment based on the money that is expected to be generated by your music. However, although they own 25% of your talent, they are a business, and as in the case of Moby’s album “Play” they will want to get your music on every radio station, TV advert and Film being made! This means that you make a lot more money than owning 100% of a tune which is poorly marketed by you. That’s right; your music is just a product and is just like a bar of soap to the corporate world of “big business”.
To understand this in a practical way- let's go back to the case of Public Enemy sampling James Brown's "Funky Drummer." Public Enemy would have had to get permission from James Brown, who wrote the song. They'd also need permission from Clyde Stubblefield who was the 'Funky Drummer' himself and played the break. They would also need permission from King Records, who were the record label, to use the sound recording. And if there was a publisher involved, they'd need permission from them. That's a lot of people you have to ask (and pay!)
With a song that's quite popular to sample like "Funky Drummer" the process might be a little easier, because the involved parties will have out a lot of things in place to make the process simpler for themselves at the very least. There are also "sample friendly" artists who do the same thing, but actively offer their catalogue to people- Georg Clinton, for instance, being one of those people. Then there's the unfriendly ones, like The Beatles, who you cannot sample- as they won't give you permission.
TO PAY OR NOT TO PAY? THAT IS THE QUESTION.
If you make use of a sample from an old record then, as previously explained, legally the copyright owner of that music is entitled to some kind of compensation. So what do we do?
Here’s a bold answer: sample first, ask questions later. If in doubt, it’s probably best to start by doing nothing. That may not necessarily be the safest approach, but it's not like you're guaranteed to release the record anyway.
If you are really concerned about safety, and indeed if you ARE going to release the record, then undoubtedly the thing to do is hire a lawyer. The point here is that your best bet-the way to get the best chance of gaining the most for the least amount of expenditure-is to wait and see if it really is necessary. Sample clearance companies, lawyers and copyright holders all have a fee attached to them- so if your song isn't going anywhere and staying on your computer hard drive, then there's no need to pay those fees everytime you want to get creative. When it comes to actually releasing, you'll want to ensure you have everything in order. When I say you'll have to pay, you might underestimate how much. There have been cases over time where records have sampled other records and, though they have cleared samples via the appropriate avenues, the original copyright holder has asked for 100% of the royalties on the song and has been granted it. Of course, as an artist if you have a huge song that would launch your career, it might be a great business move to not receive royalties but the song will give you so much exposure you can make money touring, for instance. Better still, negotiating SOME percentage of the record is an even better move, but all cases are unique.
Of course, the very best thing that could happen to you, is that you use a royalty free sample and then have a huge international smash. This is exactly what happened with Rihanna's "Umbrella." Go to the Apple Loops Browser, type in 'Vintage Funk Kit 03' and you'll hear the drums for that song. And they didn't pay a dime for it above the price of what they paid for Logic!
And if you think that's cheeky/cheating, well then you need to head over to my favourite website whosampled.com and type in 'Apple Inc' to see just how many people have used royalty free Apple Loops in their songs! The very same ones you have on your hard drive!
The moral of the story is- be creative, but be aware of the laws that come with sampling released music and remember, your samples don't have to be paid for- you've got a bunch of free ones that are already being used on huge records!