Sampling, Samplers; Property, Appropriation

[DRodriguez]

To be completely clear, regardless of morality or any of those things, sampling anything not in the public domain,without permission, and releasing it in any form, is illegal. Cover songs are legal with a set of guidelines and there is a government mandated reasonable fee involved, but there is no such thing with sampling. A lot of people will give you guidelines such as it's fine if it's under x amount of time, or if you do such and such to it, not true. It is illegal without a contract or agreement between you and the rights holder. Rights holder is an important word, because the way the industry is structured, there may be many rights holders involved, and it often is not even the artist.

Presumably the legal situation varies quite significantly from state to state and America has the reputation of having a highly litigious culture. What kind of recordings would be classed as being in the public domain?

Actually, in the US copyright law is pretty much a national thing. Not that it would matter because when you release something, you release to every state.

If you are doing a small self release for profit, you likely will not run into any issues. But it would be very smart to keep track of the sources of every sample just in case you need to acquire rights. Expect there is a small possibility a rights holder could legally kill your release. There is now a higher chance, still relatively small, you will be contacted with a settlement offer to make any issues go away out of court.

What kind of fees could be involved in these circumstances? Are there established conventions?

There are no established fees or conventions, but it will be substantial if you do get caught. That's why it is smarter to remake a sample if you can. It qualifies as a cover song at that point.

The cover song thing is especially interesting. It's called a "Mechanical License". It was made in 1909 to stop a company that was trying to get a monopoly on piano rolls, those things with a bunch of holes used for automatic pianos back in the day.

So what kind of recording qualifies for a mechanical license? Pretty much any original composition. A mechanical license allows you to cover, reproduce, or sample specific parts of the original composition. The key word is composition, it does not apply to rights to sample from any phonorecord of the original recording. US Law defines a phonorecord as any medium that holds a song(mp3, cd, cassete, etc). So this lets you to identicalley reproduce a piece of a song to use, but not actually use the original recording.

By Federal law, you do not need to get permission from the original rights owner to obtain a mechanical license as long as you pay the rights owner
assuming you follow a few basic rules. The original copyright holder has first right to publish the song. So, if you overhear Joe's song live before he publishes it, you may not publish your cover version before Joe has had a chance to.

It is "necessary to conform it to the style or manner of interpretation of the performance involved, but the arrangement shall not change the basic melody or fundamental character of the work", Vague? Yes, frustratingly so. Basically be honest to the song. This does leave a legal loophole where if someone really wanted, they may be able to argue your cover did not meet these guidelines.

How do you get a license? Generally, you work through an agency. Mainly the Harry Fox Association. You pay them money, and they give it to the artist+ a fee. They are legally required to hold all unclaimed money indefinitely, so even if the artist never tries to claim it, the money is still available to them.

How much does it cost? The statutory mechanical royalty rate for physical formats (CDs, cassettes, LPs) and permanent digital downloads is 9.1¢ per copy for songs 5 minutes or less, or 1.75¢ per minute or fraction thereof, per copy for songs over 5 minutes. so a 6.5 minute song would cost 6x1.75¢, or 10.5 cents per copy. You always round the minute down. It get's trickier with different mediums. There are different rates for ringtones (24¢), online only streaming services, online and offline streaming services, online offline and mobile device streaming services and countless other categories.You can see a full list with charts here.

What you can not do with the mechanical license:

• Reproduce sound recordings, also known as “master use rights”. (sampling)
• Include the song in a video.(Many publishers have an agreement with YouTube which permits many uses.)
• Perform the song in public.
• Display or reprint lyrics.
• Use the song in digital jukeboxes, background music or ringbacks.
• Print sheet music.
• Use the song or lyrics in karaoke or "CD+G" products.

That's right, it is not legal to perform a cover song in public. The venue needs to obtain a license from the rights holder to do this. (The venue, not the performer. The three majors are ASCAP, BMI, SESAC. You usually just buy a blanket license to each of the three. You can also just pay for one and only play their songs. Or none and only play originals. The licenses also apply to playing music in public (like on the radio or on a cd). This is why major shopping chains often record their own music rather than pay the fees. Think about all the crappy stale music you hear in Target, Walmart, or any of those stores, these fees are why. As a performer though, you don't need to worry about this, the venue does.

I find this stuff fascinating, so excuse the rambling. Also, I haven't read that back yet, so ignore any stupidity that might have slipped in.
tl;dr There is a small fee to release cover songs,you do not need permission, the Harry Fox Association handles it all.

[D.o.S.]

I'm pretty sure we've all seen/been to a club that's been burned because they didn't pay their ASCAP licenses. Those fines are decidedly Not Cheap.

[lordgalvar]

haha, HOUSE PARTIES AND IRC RELEASES ONLY! Viva la budgets!

None of the clubs in Bakersfield ever got fined (only by the city for cabaret licences)...but I guess you go after who you can get money from. Can't bleed a dude that has to live in his shop that only makes enough to cover cup of noodles and rent.

And who is that snitch that goes into a club and says "They's spinning Dre, Linkin Park, and Merle Haggard...get 'em!" What a sad life...

Oh well.

[penelope tree]

Presumably the legal situation varies quite significantly from state to state and America has the reputation of having a highly litigious culture. What kind of recordings would be classed as being in the public domain?

Actually, in the US copyright law is pretty much a national thing. Not that it would matter because when you release something, you release to every state.

I actually meant from country to country, I forget that each state in America has its own legal system! I've not had a chance to read it properly yet but here's an article from Sound on Sound which attempts to outline the legalities of sampling from a British perspective: http://www.soundonsound.com/sos/mar08/a ... e_0308.htm

Presumably it is possible for a recording using samples to be permissible in some countries but not others?

That's right, it is not legal to perform a cover song in public. The venue needs to obtain a license from the rights holder to do this. (The venue, not the performer. The three majors are ASCAP, BMI, SESAC. You usually just buy a blanket license to each of the three. You can also just pay for one and only play their songs. Or none and only play originals. The licenses also apply to playing music in public (like on the radio or on a cd). This is why major shopping chains often record their own music rather than pay the fees. Think about all the crappy stale music you hear in Target, Walmart, or any of those stores, these fees are why. As a performer though, you don't need to worry about this, the venue does.

That's very interesting I was not aware of the complexities involved with the legal position of cover songs or the reason why an act may recreate a section of a recording rather than simply sampling directly from it.

[D.o.S.]

haha, HOUSE PARTIES AND IRC RELEASES ONLY! Viva la budgets!

None of the clubs in Bakersfield ever got fined (only by the city for cabaret licences)...but I guess you go after who you can get money from. Can't bleed a dude that has to live in his shop that only makes enough to cover cup of noodles and rent.

And who is that snitch that goes into a club and says "They's spinning Dre, Linkin Park, and Merle Haggard...get 'em!" What a sad life...

Oh well.

We had a place here that got shut down for a little while because they did what was called a Clash of the Titans where local musicians would cover two bands that were sort of linked/similar (think, like, Pearl Jam vs. STP, or the Who vs. The Kinks, etc.). Super successful, really fun draw great crowds lots of beers sold, etc. But no ASCAP payments got them in some shit after like 5 months.

They're reopened and doing 'em again now, so I assume they got that sorted.

[lordgalvar]

Wow. I guess coming from the DIY world, the bands/labels just aren't suing. Crazy.

There are these traveling, mobile venues (what used to be called a promotion company) that make their whole career off that down here. They get coverage in the papers too. I really doubt only have 30 people show up would justify the fees...but I don't know. I know they are a ton of venues/bars that just do cover only nights down here...(just about every bar)

Can't imagine they would pay for that...(no draw at all)

[DRodriguez]

Most bars pay the fees anyways because the same fees apply to playing any music in a bar. Almost every venue pays those fees. For example, a privately owned club (occupancy under 200) just costs $4 a day for ASCAP rights to live and recorded music, the biggest of the 3. That's not too much for a bar to pay, and plenty for ASCAP when you count almost every bar in the US.

[lordgalvar]

huh, like with their jukebox or something? Cause knowing these people...

haha.

That's cool that it ain't too much then. The logistics of policing them all still kind of boggles my mind.