Sampling is a fundamental part of making music. So called because recorded sound is plotted into digital information, with each plot point a ‘sample’ of the sound wave’s analogue amplitude and frequency, the term sampling has come to mean the broader act of recording a sound to enable it to be reused at will. Whether it’s the pluck of a string or a phrase from a record, samples are everywhere in the music production workflow — and there’s an entire industry of people creating sounds designed to be used by others, so-called ‘sample makers’.
Copyright
The big question with sampling is who actually owns the sample, and what are you allowed to do with a sample? There are actually two types of copyright that can apply to a sample: intellectual and mechanical.
The intellectual copyright of a piece of music comes down to its musical recognisability. A musical phrase, looped, will be clearly traceable back to its originator; the originator of a piece of music holds the intellectual copyright to it, and are entitled to be noticed as the creator of it until after their death. The music doesn’t even need to be sampled, in fact: if re-playing a piece of music with your own instruments is recognisably a copy of someone else’s original music, it’s bound by copyright law just as though it was sampled.
The mechanical copyright of a piece of music relates to its actual recording. Using something that somebody else made is covered by copyright too, and the originator of the recording has the right to dictate whether, and how, their recording is used. So, even if you sample something and chop it up and rearrange it into an undeniably completely different musical piece unrecognisable from the original, using the original recording still puts you at the mercy of mechanical copyright.
Royalty Free Licensing
Many samples are provided on a royalty free licence basis. When you exchange money for a sample, you don’t usually own it — you have purchased a licence to use it under certain conditions, and royalty free use permits you to use the sample without attribution or any further payment. Commonly, the key stipulation of a royalty free sample is that its use has to be as part of a new creative work, or in other words you can use it in a song and sell that song, but you can’t just sell it on on its own. Many instrument library providers also stipulate that their sampled instruments can’t be used as the source for music that will be sold as samples, so for instance if you want to use the Native Instruments Kontakt Factory Library to make some jazz loops and sell them to beatmakers to chop up in their beats you’re out of luck.
Services like Splice and Loopcloud provide millions of royalty free samples for you to use in your music… but it’s always worth remembering that thousands of other people are likely to be using exactly the same samples as you. So, even though they’re royalty free there might be issues down the line with the automatic content identification systems in streaming services being unable to confirm the originator of a sound.
Master Clearance Guaranteed Licensing
Of increasing popularity in the ‘sample maker’ market is the master clearance guaranteed licence. These licences are much more strict on how samples are allowed to be used, with the licence purchase generally allowing you to make music with the sample and not concern yourself with attribution or royalties up until a certain level of popularity — or, to look at it another way, commercial viability. When your song reaches a certain number of streams, or is signed to a major label, the sample maker will stipulate that they then require both attribution and royalties. It’s common to see a requirement to have a co-production credit and 50% of all production royalties!
Creative Commons Licensing
Creative Commons is a system designed to simplify sharing creative works amongst artists in a fair way. Assigning a Creative Commons licence to a work allows the creator to retain their copyright whilst providing for a variety of re-uses without needing to go through a formal process of arranging what can and can’t be done. There are a variety of Creative Commons licences that allow an artist to choose whether they need to be credited in derivative works, whether those derivative works need to also maintain a Creative Commons licence, whether commercial use is allowed, and whether their original work can be altered and adapted or needs to be shared as-is.
As with all licences, it’s important to do some due diligence. Not all artists providing works under a Creative Commons licence have the legal right to do so, either because they are not the originator or because they are breaking the terms of licences that they have agreed to in creating the work with other properties. Take care!
Public Domain
By default, in most jurisdictions, modern copyright is immediately assigned whenever a creator creates a work. There isn’t a formal process that needs to be adhered to — although this hasn’t always been the case. Some creators specifically do not want to have copyright over a work and are happy to see it used, adapted, and sold in any way shape or form, and to do that they can release it into the public domain.
If a work is in the public domain there are no limitations as to what can be done with it. If you want, you can try to sell it with absolutely no alterations, or use it in a piece of your own creation and claim full copyright over your piece with no attribution, no royalties, and no fuss.
There are various laws and precedents in different jurisdictions and for different types of work that state the maximum amount of time that something is able to remain copyrighted. It’s common for works to remain the copyright of the creator until 50 or 70 years past their death, after which point their estate no longer has a claim to benefit from their work. This isn’t a total blanket rule, though, and there have been cases of exceptions and the convoluted history of copyright makes every case something to examine on its own merits — if in doubt, seek legal advice!
Commercial
There’s no rule anywhere that says anyone has to allow the commercial usage of their original recordings! (There are some rules about freshly recorded covers being allowed and certain case-by-case ‘fair uses’ of works on a non-commercial basis, but that’s something for another time)
If you sample something that doesn’t have a clearly laid out licence for its use, then you will need to be prepared to negotiate the rights to use that sample in your music. From a practical perspective, it’s unlikely you’ll even get the representation for the copyright holder on the phone if you’re worried about your EP with a chopped up soul sample on one of the tracks breaking 50 streams — but of course, the hard line on this is don’t do it.
What you do in your own spare time for your own personal enjoyment is completely up to you of course, and the joy that I get from listening to piles of old records is the real reason I love sampling!
A Quick Legal Note
As a final point, I ought to mention that I’m not a lawyer and this isn’t legal advice. If you have a question over your legal position when sampling, you should definitely speak to a qualified professional.