Sampling, Interpolations, Beat Stores, and More

An Introduction for Musicians Using Preexisting Music

The Ease of Creating Music Today

Rise of digital production platforms
Access to a wide range of musical pieces
Importance of copyright knowledge

Case Example

“Old Town Road” by Lil Nas X

Lil Nas X’s ‘Old Town Road’ sample of Nine Inch Nails’s ‘34 Ghosts IV’ | WhoSampled

Musical Works vs. Sound Recordings

Different types of copyright
- a musical work is a song’s underlying composition created by a songwriter or composer along with any accompanying lyrics.
- A sound recording is a series of musical, spoken, or other sounds fixed in a recording medium, such as a CD or digital file

Sampling, Mashups, and Remixes

Sampling involves taking part of an existing sound recording and incorporating it into a new work. For example, a piano line or guitar riff from one recording might be used as a melody in a new recording (instead of re-recording the melody or creating a new melody), or the audio from drums or a piano might be incorporated into a new sound recording as the rhythm or melody of the new work.

Legal Permissions Required:
- Sampling involves using a portion of a sound recording, which requires permission from the copyright owner.
- Unauthorized sampling may lead to copyright infringement claims.
Clearance Process:
- Obtain clearance from both the sound recording and musical work copyright owners.
- May involve negotiating terms and fees for the sample’s use.
Potential Costs:
- Licensing fees can vary based on the sample’s length, prominence, and intended use.
- Additional costs may arise if the sampling leads to litigation due to improper use.
Fair Use Consideration:
- In rare cases, sampling may fall under fair use, but this is a complex legal defense, not a right.
- Fair use is determined on a case-by-case basis, considering factors like the purpose of use and the effect on the market value of the original work.
Impact on Creation and Distribution:
- Sampling can affect the commercial release of a new track.
- Clearances must be obtained before distribution to avoid legal issues.
Derivative Works:
- A new work incorporating a sample is considered a derivative work.
- Creating derivative works without permission infringes on the original copyright owner’s exclusive rights.

Interpolations and Covers

Understanding interpolation
Legal framework for cover songs
Obtaining necessary permissions
The following songs contain interpolations:
Covers
- Luke Combs cover of Tracy Chapman’s ‘Fast Car’ | WhoSampled

Interpolation vs. Cover Songs:
- Both can add value to new music but require an understanding of distinct legal requirements.
- Interpolation involves re-recording elements of a song, while cover songs use the original composition directly.
- Permission from the copyright owner of a preexisting sound recording is not necessary when interpolating a musical work, regardless of how similar the new recording may be to an old recording. This is because, under U.S. copyright law, the exclusive rights in sound recordings do not extend to making independently recorded “sound alike” recordings. Note that re-recording the entirety of an existing song would create a cover recording (discussed below).
Legal Process for Covers:
- Obtain a license from the musical work’s copyright owner.
- Alternatively, secure a compulsory mechanical license for non-dramatic musical works.
Compulsory Mechanical License:
- Allows the use of a musical work without the copyright owner’s explicit permission.
- Subject to strict legal compliance and payment of royalties.
Conditions of Mechanical Licenses:
- Must follow specific rules on eligibility, royalty rates, and other detailed requirements.
- Cannot alter the basic melody or fundamental character of the work.
Rights for Recording and Performing:
- Recording a cover song requires mechanical rights.
- Performing a cover song typically involves obtaining public performance rights, usually through performance rights organizations.

Beat Stores

Understanding the Terms and Agreements

Licensing beats online
Exclusive vs. non-exclusive rights
Importance of understanding contracts

Fair Use and Public Domain

Defining fair use
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work (including considering whether the work is creative vs. factual or published vs. unpublished);
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
Criteria for public domain works
Navigating copyright without infringement

Fair Use Doctrine:
- Legal concept allowing unlicensed use of copyrighted works in specific cases.
- Courts evaluate fair use based on four factors: purpose of use, nature of the copyrighted work, amount used, and effect on the work’s value.
Public Domain Works:
- Works not protected by copyright or whose protection has expired.
- Can be used freely without a license.
- Copyright status may vary by country.
Differences in Work Types:
- Musical works vs. sound recordings have separate copyright statuses.
- Public domain status applies differently to compositions and recordings.
Examples of Public Domain Use:
- Musical compositions like Grieg’s “In the Hall of the Mountain King” are free to use in the U.S.
- Sound recordings, like the Offspring’s version, may still be under copyright.
Common Musical Building Blocks:
- Scales, chords, and arpeggios are not copyrightable.
- Use of widely recognized musical elements, like the “Hendrix Chord,” is permissible.
Limitations on Protection:
- Short musical phrases typically do not receive copyright protection.
- However, the song’s other elements, like lyrics and unique melody, are protected.

Campbell v. Acuff-Rose Music Inc. (2 Live Crew vs. Roy Orbison)

2 Live Crew created a parody of Roy Orbison’s “Pretty Woman.”
License denied by Acuff-Rose Music for the use of the track.
2 Live Crew released their parody track anyway.
Nearly a quarter of a million sales before the lawsuit.
Acuff-Rose Music sued 2 Live Crew for copyright infringement.
Outcome: The Supreme Court ruled in favor of 2 Live Crew.
Precedent Set: Established that commercial parodies can qualify for fair use.

2 Live Crew’s ‘Pretty Woman’ sample of Roy Orbison’s ‘Oh, Pretty Woman’ | WhoSampled