Top 5 Myths About Sampling and Copyright Law
#1. Sampling is piracy.
Piracy describes the wholesale, verbatim copying and distribution of copyrighted works. That is not sampling; that’s something entirely different. Piracy involves counterfeiting an entire copyrighted work — as is — and distributing it for profit. In total contrast, the art of sampling involves the creative transformation of small pieces of recordings into new original works.
#2. You can legally sample and use any recording up to 1, 2, 3, or 4 seconds.
Under existing copyright law, there is no clear, predetermined length (amount in seconds) that is “legally” permissible to sample. Recording artists who sample copyrighted recordings under the misapprehension that they are operating within the law are vulnerable to infringement suits by copyright holders.
Note, however, copyright law allows for fair use of copyrighted works; in this case, sound recordings. This means that some sample uses do not rise to copyright infringement. In a fair use inquiry made by the courts, the amount of the copied (appropriated) work used in the new work is just one factor. And although there is no predetermined length that automatically guarantees that a use will meet the fair use threshold, it’s generally recognized that the less copied, the more likely the use will be a fair use. In my book, The Art of Sampling, I include a very detailed explanation of fair use, along with comprehensive descriptions of how to sample and use samples in ways that are more likely to be fair use.
#3. If you use samples on a free mixtape, it’s perfectly O.K.
A free mixtape does NOT permit you to use samples from copyrighted recordings without the permission of the copyright holders. It does not matter if the mixtape is free or not. Without the permission of the copyright holders, you run the risk of being sued for copyright infringement. (However, bear in mind that some sample uses on a mixtape may meet the fair use threshold.) That said, when making a free mixtape, honestly consider the notoriety of your work. In other words, taking a chance is often less riskier for lesser known or unknown recording artists. And if a sample-based mixtape can help you increase your exposure, the trade off of gaining critical exposure in exchange for the possible “cease and desist” letter or even the threat of a lawsuit isn’t necessarily a bad thing.
Think of it this way: If your free mixtape brings you notoriety — in terms of good press, show bookings, and the like — then that’s a great. It’s a chance to take, but a minimal one in terms of what you can gain. Far too many people buy into the myth and conjecture surrounding infamous copyright infringement lawsuits, without ever learning the facts — or without any consideration of the artists and their high-profile status — that made such lawsuits infamous in the first place.
If you want to really gain a solid understanding of copyright law and the implications that it holds for sample-based music, read my book, The Art of Sampling.
#.4 Sampling is easy; there’s nothing to it. Anyone can do it well.
For those not familiar with the art of sampling, the general presumption is that it is not a musical process; that there isn’t any creativity, originality, ingenuity, or skill involved in it; that it is simply the non-discretionary act of “taking other peoples’ music;” or that it’s not substitute for traditional musicianship. This is certainly not true. Sampling is an art form that requires technical skill, imagination, and artistic understanding. The art of sampling demands much of those who seek to develop a high skill for it. It requires loads of time, research, and a commitment to the study of pre-recorded—usually decades-old—music. Still, as with any art form, there are certainly different degrees of creativity, execution, and originality.
#5. Sampling involves the use of pre-recorded songs only.
While the art of sampling is most commonly understood to include the use of pre-recorded songs (traditionally from vinyl records), source material for sampling includes any recorded sound or sound that can be recorded. This means everything from sounds in movies to sounds in nature, and everything in between.
The art of sampling — one of the most innovative music processes to emerge in the late-twentieth century — stands today as both a celebrated art form and a cultural activity within the hip hop/rap music tradition and beyond. The Art of Sampling by Amir Said (author of The BeatTips Manual), examines this complex and controversial music process, and brings forth a study that illuminates its history, creative mechanics, and philosophy, while also exploring the implications that it holds for copyright law.
The Art of Sampling, which contains everything found in the “Art of Sampling” chapter of The BeatTips Manual, 6th Edition, plus additional information and a crucial Copyright Law Part, is divided into three primary parts, including an in-depth History part, a robust Instruction (“how-to”) part, and a highly comprehensive and accessible Copyright Law part. Truly the most comprehensive exploration of sampling in the hip hop/rap music tradition and copyright law ever written, and one of the most striking and poignant music studies to come along in years.
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