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  Bernie Lawrence

PMP QUESTION:


Hi, on your next PMP article, could we clarify the position on producers which use 'Samples' in their tracks; whether that's a pre-recorded loop or a drum break. I've heard from various discussions that if a producer samples he must get that particular sample cleared even if he/she just wants to send the tracks to a radio to get played. What are the whole steps which a producer needs to go through if they sample? Can somebody blatantly plagiarize the track and call it there own only because a sample is in there which is not cleared? Can a producer still obtain copyright if they have a sample in their track, even if it isn't cleared? Can a record company/management company take a producer's beat and sell it without their notice; if they are not copyrighted?
 
All these things are all confusing! If you could include this or touch on it in your next article, it would be much appreciated!
 

BERNIE'S RESPONSE:



Clarify the position on producers which use 'Samples' in their tracks; whether that's a pre-recorded loop or a drum break.


In modern day music, many producers are using samples, which sometimes include drum breaks. A Sample consists of a portion of a preexisting song embodied in another. A sample can either be 1) taken from an actual sound recording or 2) an interpolation of a sound recording, which is often referred to an a "played over sample".   A drum break (or break beats), on the other hand, is a pattern of drum beats played as an instrumental during the break in a song and is often used as a "fill" in a song. Since the evolution of hip hop, drum breaks have been used by producers to create a drum loop (sampled beats repeated throughout a song).


I've heard from various discussions that if a producer samples he must get that particular sample cleared even if he/she just wants to send the tracks to a radio to get played.


If a sample of master recording or composition is embodied in a new song, it should be cleared before it is exploited. Since the act of sampling results from someone taking a portion of a preexisting song, then the person who owns the original work has the right to clear the sample and be compensated for the use of such contribution.



What are the whole steps which a producer needs to go through if they sample?


The producer's first step is to identify who is the owner/publisher of the sampled work; one way of finding out such information is to check the jacket covers of the CDs to see who wrote/published the recording. Secondly, a producer can contact the performing rights organizations (ASCAP, BMI, and SESAC) to obtain contact information on the writer/publisher. Thirdly, a producer can visit http://www.copyright.gov/ to conduct an online search of the Library of Congress' records; and fourthly, a producer can hire a sample clearance house to handle such task.



Can somebody blatantly plagiarize the track and call it their own only because a sample is in there which is not cleared?


I believe your question is asking whether someone can sample a track, which contains a preexisting sample that was not cleared and call it their own? In such cases, if the sample use was non-copyrightable (not considered to be original) or in the public domain, then the owner of the sampled work can't claim ownership rights in the new recording, but can require a sample clearance fee for the use of the sampled work.On the other hand, if the sample used is copyrighted, then the person incorporating the copyrighted sample can't claim that portion of the track as his or her own; only the original elements in the track can be claimed, if any.



Can a producer still obtain copyright if they have a sample in their track, even if it isn't cleared?


If the musical work you seek to register with the copyright office embodies a "sample", copyright protection will not extend to the incorporated "sample" [the preexisting material]. The creative expression of the original work contributed by the author is independent of any copyright protection in the preexisting "sampled" material.  Therefore, you can seek copyright protection in a work that embodies a "sample", but the "sample" embodied in your work will not be protected.  Please see Title 17, §104(b) of the U.S. Copyright Act for further information.



Can a record company/management company take a producer's beat and sell it without their notice; if they are not copyrighted?


The first thing you must understand is a copyright exists the moment an original work of authorship is fixed in a "tangible medium of expression" (audio, video, or written form). The registration of a copyright with the Library of Congress serves as an added measure of protection in the event an infringement occurs and you have to file a lawsuit in federal court. If a record company acquires the rights to a master recording through an assignment (which is typically done in the Producer Declaration or Producer Agreement), and consideration (or money) is paid by the record company to the producer, then the record company is free to sell the work to whoever. The record company, however, would have to account to the producer for his pro rata share of royalties from the sale of the recording, if such terms are negotiated in the Producer Agreement. Managers, on the other hand, do not ordinarily acquire rights in a recording and should not be selling beats without the owner's permission.



Disclaimer: The content of this article is the express opinion of Bernie Lawrence-Watkins and shall not to be construed as legal advice or in any way create an attorney-client relationship.