Can I use part of someone else's recording without permission?

October 11, 2011

Dear Music Lawyer,

I'm a composer, and I wrote a track using part of a synth line and a beat from someone else's recording. The new song is completely different than the original song, and I even added new sounds and a vocal melody. Can I get in trouble?

—Billy

Dear Billy,

Yes, you can. If you took a portion of a synth line and beat from someone else's recording and re-used it in creating your own track, then you engaged in what's known as "sampling."

Sampling is a controversial and often misunderstood topic in the music industry. Contrary to popular belief, the use of "samples" in new musical works must almost always be cleared with the owner of the recording and the owner of the underlying musical work regardless of how much material the sampler added. So even if you layered a bunch of additional sounds over the beat, the fact remains that you used someone else's copyrighted work. Such use requires permission from the copyright owner(s) absent narrow exceptions (e.g., fair use).

I'd also like to dispel another related myth about sampling. Over the years, I've had numerous musicians tell me that they've heard that it's okay to sample freely so long as they're "giving the music away." In other words, there's some widespread myth that you can use other people's copyrighted works just because you don't make money off sales of the music (e.g., hand out free CDs or post tracks for free on your social networking pages). Here's the truth:

There's no "free giveaway" exception for sampling music under U.S. copyright law. Period.

In case you are wondering how distributing your music or giving away the music for free could harm the copyright owner, think about a hypothetical artist who is a moral vegetarian and feels very strongly about animal rights. Now think about a rapper who decides to "borrow" parts of that artist's performance and add lyrics about how he can't wait to go eat a delicious hamburger with his buddies. The artist would likely protest to such an association.

The law protects this hypothetical artist by requiring the potential sampler to request her* permission first. She has the option to

(1) approve such use, perhaps because she needs some cash; or

(2) deny such use because she would develop insomnia if she contributed to a pro-meat track.

That is, under the copyright law, she retains creative control of her work by having the right to say "no" to a proposed use. (Note: This concept is even more strongly embedded in much of Europe as the principle droit moral.)

*Technically, the potential sampler needs to approach the songwriter and sound recording owner for permission, but I've simplified to artist to make the point. As mentioned in numerous other posts, if the recording and song are owned by different people, both would need to agree to the use for someone to legally sample a work since recorded music involves two distinct copyrightable works.

In sum, if you sample other people's music without permission, then you run the risk that either the owner of the original recording or the person who created the beat or synth line (or both) could claim copyright infringement. This would be true even if you did not charge anything for the music you created.

—Amy E. Mitchell