Is Sampling Legal? How To Legally Sample Music For Producers

So, you just heard a killer beat you want to use in a song.

There are plenty of hit songs based on samples. Just think of Beyonce’s “Crazy In Love”, Rihanna’s “Work”, Eminem’s “My Name Is”, or Kanye West’s “New Slaves”.

Ultimately, we’re all influenced and inspired by the music we’ve heard, and since there are only seven notes you can use in each key, there are bound to be similarities between songs. If you're using notes and chords, you're making music. That's all there is to it. There's no way you can be 100% unique.

Regardless, sampling isn’t exactly new. In the 80s, it seemed as though every Hip Hop song featured a sample from another recognizable song. But to be fair, the 80s were still the “wild west” when it comes to sampling. The legalities of sampling have tightened up quite a bit since then.

So, is sampling legal? How can you legally sample music? Read on.

Is Sampling Legal?

Yes, but only if you go about it the right way.

Generally, you need to get permission from both the owner of the sound recording and the copyright owner of the musical work.

Assuming you have the permission to use the music, you can leverage it in your own sound recording.

Do not use samples if you don’t have proper permission, unless you want to go to court.

Why Sample?

As a producer, you’re probably capable of producing your own beats. So, why would you sample a section of music?

For one, it can cut down on production time. Time is of the essence in most recording situations these days, as more time in the studio generally means the need to spend more money. Plus, if you need to make a new beat, you must start from scratch. With a sample, you’ve got a good starting point, if not an entire song mapped out.

Two, a sample can evoke nostalgic feelings in listeners. This is beside the point if the sample is too old or not widely recognized. And, in some cases, producers still use samples from songs that are lesser known because it nevertheless evokes the right mood or feelings for the song. But if you’re trying to get your audience to remember the “good old days”, you need to use a section music your target audience is familiar with.

Three, duplicating the feel of a specific segment of music can be tricky. And, let’s say you don’t have immediate access to a 12-piece band. No problem – if the segment of music you’re looking to sample already has that layered sound you're looking for, you don’t have to build it from the ground up.

How To Sample A Song The Right Way

Generally, samples contain two copyrighted works – the underlying composition and the recording.

The underlying composition refers to the song itself, which is owned by the songwriter or publisher. The recording is owned by the artist or record label.

As already noted, you need permission from both the owner of the composition and the recording. Once approved, you will need to enter into a sampling agreement with the copyright owners.

How To Obtain Permission To Use The Composition

Since you’re looking to record a song that doesn’t belong to you, what you need is a mechanical license. Fortunately, this is not hard to get, as you can obtain the license through Harry Fox Agency.

Things get a little more complicated if you’re planning to combine two or more songs into one. In an instance like that, you need permission from each song’s owner. And, from a legal perspective, you’re creating what’s called a “derivative work” at that point. A mechanical license simply isn’t enough, so you’ll need to deal directly with the song owner and/or publisher.

As far as figuring out who the publishers are, do a few searches on PRO websites (like ASCAP, BMI, SESAC, etc.).

Publishers want as much information you can provide them with, so don’t be shy. Tell them how you’re planning to use the material for best results. Provide them with how many seconds the sample will last, which section of the song will be sampled, timing of the recording, the number of units you’re planning to create and distribute, and what type of media you will be using, whether it’s CD, vinyl, stream, or otherwise.

How To Obtain Permission To Use The Recording

Again, when you’re using a part of someone else’s song, you’re creating what’s called a derivative work.

Sampling requests aren’t always looked upon with favor, because of how your use of the sample could devalue the original recording.

To get permission, you’ll need to determine who owns the master recording. Generally, you’ll want to begin by contacting the record label and ask for a license to sample.

Again, offer as much information as you possibly can, as this will increase your chances of success. You may be asked to present a demo, so be prepared.

How Much Does Sampling Cost?

This is going to depend on two factors:

1. The owners of the composition.
2. The recording you’re planning to sample.

So, the cost of the sample is going to be determined by how much value the owners of the composition and recording place on it.

There is no standard rate across the board. Mechanical licenses are standardized in the sense that they always cost 9.1 cents per copy for songs that are five minutes or less. But sampling can vary a lot in cost.

So, when it comes to sampling, it’s mostly going to come down to negotiation. Some sources suggest royalty rates will vary from a fraction of a cent all the way up to five cents per unit. This does not include the advance, which could be several thousand dollars.

The rate is also going to depend on many of the factors already noted, including how you intend to use the song, the overall success of the song you’re looking to sample, how successful you are as an artist, and so on.

Here are a few proposals composition and recording owners are likely to make, especially if they value their works highly:

• Mechanical license for a flat fee or royalty.
• Mechanical license for a royalty and share of performance royalties.
• Co-ownership in the new composition and/or recording.
• Complete ownership of the new composition and/or recording.

Don’t be too hasty in entering any agreement before you’ve had the chance to run it by a qualified entertainment lawyer. You could easily miss out on important details that could affect your new song and career for a long time to come.

Also keep in mind that rejection is always a possibility. The owners of the song may not give you the license. So, again, negotiation plays an important role in the process.

What Are The Consequences Of Sampling Illegally?

There are only so many ways I can say don’t.

So, instead of just telling you that you shouldn’t sample a song illegally, I’m going to tell you about the consequences of doing such a thing.

Sampling illegally could lead to your song being pulled off the market (this is called an injunction), a massive fine, and can even result in criminal prosecution under the seventh commandment, “Thou shalt not steal.”

This is exactly what happened to rapper Biz Markie in 1991, for his song “I Need a Haircut”, which included a sample of Gilbert O’Sullivan’s “Alone Again (Naturally)”.

So, to me, it just isn’t worth it to sample illegally. There are artists who are showing some defiance in this regard, but I hold that it may only be a matter of time before they’re brought to court as well.

Are There Alternatives To Sampling?

Of course, there are.

After all, while it may be illegal to sample someone else’s recording without permission, it certainly isn’t illegal to sound like someone else.

I think it depends at least somewhat on what your intentions are.

If you’re just feeling lazy, and you don’t feel like making another beat, then maybe you should take some time and find some new inspiration.

If the sample is critical to the song’s structure, then maybe it’s worth fighting for.

If you think the sample is crucial to the song’s success, that can be a bit of a contentious issue. On the one hand, success is obviously important, but on the other, the powers that be may not care that much about your success. And, be honest with yourself – if your song can’t be a success without the sample, how good is the song?

Making your own beat is always an option, even if it is the “long way around”.

Is Sampling Legal? How To Legally Sample Music For Producers Final Thoughts

In a way, everything in music has already been done.

So, you might be asking yourself, “why reinvent the wheel?” If you can sample a song and get exactly the sound you want, why would you go to the trouble of starting from scratch?

The answer is simple. Many times, sampling ends up being the costlier and lengthier way of going about things.

For instance, The Beastie Boys opening song on Check Your Head was “Jimmy James.” Originally, the song was intended as a tribute to the late, great Jimi Hendrix.

On their anthology, The Sounds of Science, the band mentioned that they used a bunch of Jimi’s guitar sounds on the recording. But because clearing the samples took too long, they had to re-record their own sounds for the original release of “Jimmy James”. Sounds kind of painful, doesn’t it?

So, if you feel the sample is essential to your new release, then go ahead and get the license. Otherwise, it might be worth considering alternatives.