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How does the Copyright Law impact digital sampling?
1. Copyright is the basis for claims against Artists who sample recordings and musical ompositions
2. “Infringement” of sound recording and underlying musical composition usually occurs if the master is sampled directly
3. If the sampled portion of the recording is re-created, then the sampler would only have to worry about getting a license from the publisher of the musical composition that was used, because there was no use of the original Master recording.
4. Licenses are negotiated with owners of the copyrighted material who listen to the new song and the original song to see how much was used before quoting a fee or a rate. Usually the owners want an advance and a royalty for the usage. The use of professional ‘clearing agents’ to clear samples is helpful and often employed
How many consents to do you need for a Sampling a Master Recording?
2 - one for the master and one for the composition
Who is responsible for clearing samples?
Legally the producer is responsible for clearing the sample. If the sample is used and uncleared, the artist, the producer, the label, and the distributor can all be legally responsible.
Who Does the Clearance Work?
Attorneys are usually too expensive. Therefore, independent ‘Clearing Agents’ are used who often charge a flat fee per clearance for their services
Is the consent of the sampled Artist required?
Not usually, unless the Artist has a significant stature at the Record Label and has a ‘sample approval’ clause in their contract or owns their own Masters.
What are the Factors Affecting Negotiations for Sample Licenses?
1. Release of Record Prior to Clearance will ensure a higher quote to settle the matter
2. The duration and content of Sample
3. Multiple Publishers: Where multiple publishers own a piece of the sampled recording, each has to sign off on the usage, complicating the process and adding to the payments
4. Multiple Samples on Same Record: Where there are multiple samples on one Master recording, the clearance process is again more complicated and satisfying the various copyright owners may cost more than the mechanical income generated on the new song.
What SAMPLING Consent(s) that you need for sampling a Master recording requires
Two Consents – master and the musical compositions
What SAMPLING Consent(s) that you need for sampling Television Soundtracks?
Requires consent of Copyright Owner of programs
What SAMPLING Consent(s) that you need for sampling Motion Picture Soundtracks ?
Requires Copyright owner of film
What SAMPLING Consent(s) that you need for sampling Human Voices ?
Calif. Statute requires written consent before commercial use of person’s name, voice,or likeness can be used
What are the Types of Quotes for Sampling Usage?
An advance against a Penny Rate for each sale of the Master containing the sample.
Types of Quotes for sampling
Usually sample owners of publishing rights will quote a fee consisting of a Percentage of the Copyright of the New Song plus an advance against their mechanical rate.
Alternatively, the Sample owner will ask for ‘Income Participation’ Agreements to avoid possible liability as the copyright owner of the new composition.
Flat Fees are not very common.
'Roll-over' Advances are often used, triggered by the attainment of a specific number of sales