Wallace Collins is an entertainment and intellectual property lawyer based in New York. He has been in the business for over 30 years. Prior to this he was an Epic Records recording artist. In this post he explains the basics of sample clearance.
Many clients ask about whether or not they can “sample” from an existing sound recording and how much is permissible to use, and whether or not they need permission to embody a sample in their new sound recording.
Sampling occurs when a portion of a prior sound recording or fixation of sound is incorporated into a new sound recording. When such a use occurs two copyrights are involved: the copyright in the sound recording and in the underlying musical composition embodied in such recording. If sampling occurs without permission, copyright infringement of both the sound recording (usually owned by the record company and/or artist) and the song (usually owned by the publishing company and/or songwriter) has occurred.
Using samples without permission can lead to litigation where an infringer may be forced to pay damages to the copyright owner which could amount to hundreds of thousands of dollars per infringement. A court can also order you to recall and destroy all of your infringing copies and, in certain cases, can award the costs and legal fees incurred by the prevailing party in such a lawsuit.
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