Antiguan American attorney, Eldonie Mason of the Mason Firm, LLC, has a world of knowledge and experience in the music arena. An entertainment, business, and fashion lawyer, Mason is licensed to practice in New York, New Jersey, and Florida, and is also a professor who has taught music publishing, licensing, and copyright at York College of Pennsylvania. She is passionate about educating creatives about the ins-and-outs of the music business.
Eldonie Mason shares her top tips of things to know before sampling music.
- Whether or not you need a license to sample music is not clear.
“The waters for sampling music have become very murky. Starting in 2005 when the 6th circuit in Bridgeport Music Inc v. Dimension Films, ruled that you should “Get a license or do not sample.” In 2016, in the Madonna case, VMG Salsoul v. Ciccone, involving her hit song Vogue, the 9th Circuit ruled that any copying that occurred of the plaintiff’s song was de minimis or trivial, and not copyright infringement. Madonna had a sample from the song Love Break without permission or a license in Vogue.
“In the 2017 Drake case, Estate of James Oscar Smith v Cash Money Records, Inc., the U.S. District Court for the Southern District of New York ruled that Drake’s use of a sample was transformative and hence fair, so it did not infringe on the estate’s copyright. In Drake’s song Pound Cake/Paris Morton Music 2 he had sad about thirty-five seconds of the jazz musician’s one-minute, spoken-word recording entitled Jimmy Smith Rap and lifted the words almost verbatim with only minor deletions.
“From the Madonna case, if the use is trivial, then a license to sample music is NOT needed. Also, according to the Drake case, if the use is transformative, then it is fair use and no license is needed.”
“But, wait, don’t start celebrating. Remember the 6th circuit says that every time you sample you will need a license. You will have to choose… To license or not license, that’s the question.”
- The length of the sample does not matter.
“It is often said that if you sample a little, a few seconds, then you are “good” and won’t be infringing on the copyright. However, there might not be a specific number of words, lines, or even musical notes that may be safely taken. To illustrate this point, consider the case of Bright Tunes Music v. Harrisongs Music a 1976 case out of New York – or what I like to call the Chiffons v. George Harrison case. In this case, the court found that Harrison’s My Sweet Lord infringed the Chiffons’ He’s so Fine. This case focused on the musical composition of both songs and noted that they both had a distinctive “grace note” in the same melodic motive. This note was so distinctive to find a case of infringement. On the opposite end, there’s the Drake case where he took 35 seconds of a one minute track and no infringement was found. So, if you get sued it will depend on which court you are in.”
- Fair use is a defense to copyright infringement and a limitation on a copyright owner’s exclusive rights.
“Fair use allows someone to use copyrighted materials without first obtaining the owner’s consent. However, there is a fine line between fair use and infringement, which may be unclear and not easily defined. So, if you decide that your sample is fair use and you are not going to get permission, you can still get sued. You will then have to prove that your use was indeed fair.”
- If you get a license to a recording, make sure you get a license to the underlying composition as well.
“The way copyright ownership of a song works is that the label will own the master recording while the songwriters/music publisher will own the underlying composition i.e. the music and the lyrics. Thus, you have to get a license for both.”
- When you get permission, make sure that the person or company actually owns the copyright.
“This means you have to clear the rights. Check with the copyright office to see who is on the registration document. If the work is not registered, ask for proof of ownership.”
