DISCLAIMER:this article may not tell you what you want to hear, but it might shed light on what you need to hear.
Now that we have that out the way, lets be clear on this from the jump – there is no complete and absolute rule under US law that you can sample someone else’s music for free and without clearance if it’s only “six bars,” “six seconds,” “five seconds,” “five bars” or any other number.
I know that statement probably shatters many myths you might be holding about music sampling, and you may not want to believe what I am saying, so I’m actually going to repeat it one more time so that it can sink in:
There is no complete and absolute rule under US law that you can sample someone else’s music for free and without clearance if it’s only 'six bars,' 'six seconds,' 'five seconds,' 'five bars' --or any other number.
That said, there is a tiny (microscopic-tiny) grain of truth to the “6 bar” sample myth, but it has been painfully and horribly distorted over the years to the detriment of many sample-happy producers who have held onto the misguided belief that the “6 bar” myth is absolute. Let's try to sort through the confusion.
What is sampling, and what’s the legal way to sample someone else’s music?
Sampling as many of you know, is a music production technique that grew largely out of early hip-hop DJ culture, specifically the practice of looping breaks and cutting in tracks during a DJ mix. This DJ method evolved into the music production practice of using previously-created music from a third party into the production of a new music track.
If you plan on sampling a recorded piece of music, there are two separate copyrights within the music you need to negotiate permissions for (or “clear” as the industry likes to call it) in order to approach things legally. These two copyrights are the composition copyright (typically owned or controlled by an artist’s music publisher) and the sound recording copyright (typically owned or controlled by an artist’s record label). The challenge involved in sample clearance (particularly for obscure pieces of music you may want to sample) are figuring out who the right parties are to get clearance from, and negotiating a good deal with the rights owners. You don't necessarily need an attorney to clear music for sampling, but it certainly can help to have a music attorney navigate these often muddy and difficult to navigate waters.
But if I don’t “sell” the sampled music track I make, and I just put it up on soundcloud or youtube or otherwise post it to the internet for free streams or downloads, it's legally OK for me to do that without clearance, right?
Sorry folks, but the answer is: No.
Technically, under the copyright law, you are engaging in copyright infringement even if you sample someone’s music without clearance or other licensing and distribute it/post it online for free. There are 6 rights under the copyright law that only the owner of the copyright has the exclusive rights to engage in. Those six rights are the right to distribute, reproduce, display, publicly perform, make derivatives of, and digitally transmit (for sound recordings) a copyright. If you’re not the owner of the copyright, and you don’t have a permission (license) to do any of those six rights from the copyright owner, then you are not allowed to engage in any of those six rights of someone else’s copyright. Yes, there are some copyright owners that may not bother to pursue any action or claim against you if you sample their music without clearance and distribute it for free, but they certainly have the legal right to stop or sue you--and you should never expect that it can’t or won’t happen to you.
So where did this 6 second or 6 bar myth come from?
One of the first big music sampling lawsuits involved Biz Markie in 1991 over his use of a sample in a track called “Alone Again.” A defense to the sampling in that lawsuit was that “stealing is rampant in the music industry, and for that reason... (the sampling) conduct should be excused.” Biz's label lost this lawsuit because the court rejected this defense and actually cited the ten commandments, stating that “thou shall not steal” and showed little sympathy for people who engage in illegal music sampling.
Biz Markie - "Alone Again"
Flash forward to 2003: it was actually a Beastie Boys lawsuit that sparked the 6 bar/6 second sample myth that has perpetuated over the years. The name of the case is Newton v Diamond, and in this case, the Beastie Boys sampled a 1981 sound recording called “Choir” that was composed in 1978 by James W. Newton, an avant-garde jazz floutist and composer. The “Choir” sample was used by the Beasties for their “Pass the Mic” track off the album Check Your Head. The Beasties cleared the rights to the sound recording copyright for “Choir,” but the problem lay in the Beasties failure to clear the composition copyright to the “Choir” sample. Remember - both sides need to be cleared when you want to sample a recorded piece of music: the copyright of the composition of the underlying recording, and the copyright of the actual recording itself. When James Newton got wind of this, he sued the Beasties for copyright infringement. But guess what folks - the Beastie Boys won this case.
The Beastie Boys - "Pass the Mic"
Here’s where things got interesting with that case: The court in Newton v. Diamond held that the three specific notes in the composition of the specific sample of “Choir” that the Beastie Boys used, C-D Flat-C, lacked originality to be protected by copyright law. The court further held that even if the sampled segment of the "Choir" composition was copyrightable, the Beastie Boys use was “de minimis” (minimal) and thus not sufficient to sustain a claim for copyright. As a result, the Beastie Boys won the case and a tiny victory for sampling producers across the nation.
So wait – doesn’t the Beastie Boys “Newton Case” prove then that there’s at least a 3-note right to sample without clearance?
No, no, and NO. For multiple reasons, some of them are:
1- The Newton v Diamond case is not a lawsuit that was heard by the US Federal Supreme court, hence it's not binding law to every court hearing copyright sampling issues. The Beastie Boys Newton v. Diamond case was a case that was decided by the 9th Circuit Court of Appeals. This is an Appeals court in the US federal court system. There are only 12 federal courts of appeals in the US, and the 9th Circuit only governs federal cases originating in California, Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon, Washing, Guam, and the Northern Mariana Isalnds. Thus, the Newton’s court holding is persuasive, but not binding in any other states such as New York, Florida, Tennessee, Illinois, Pennsylvania and Massachussetts –all of which are very music-industry heavy states.
2- Two years after Newton was decided, the Federal Court of Appeals for the 6th Circuit in the 2005 case of Bridgeport Music v. Dimension Film held that any illeagal/uncleared use of a copyright sound recording for sampling, even if it is “de minimis” is copyright infringement. The Bridgeport case opinion also stated a very chilling warning to would-be sample producers:
"Get a license or do not sample."
3- Even if you try to just sample 3 notes of a music composition for free under the holding of the Newton case, you are still setting yourself up for a potential train wreck because you first may not be under the jurisdiction of the Newton holding (the 9th Circuit), and further, you have no way to prove if any other alternative notes used other than the three specific notes from the James Newton "Choir" composition that the court addressed, would be found to be a de minimis use not subject to copyright infringement. You would have to take any other sampling use to court for a decision on whether your use is "de minimis", and for the amount of legal fees involved in merely getting such a case to court, likely with an attorney, you may start to rival the costs that would have been involved in clearing the music the right way in the first place with the copyright owner.
Welp. What to do? I want to sample, I love sampling, I don’t have money to hire an attorney or to clear?
You will have to do some research, but less costly/risky options that could be explored to properly clear music for sampling include but are not limited to finding pre-cleared music, finding music that is in the public domain (the copyrights have expired, and are not renewed), or – actually creating your own original music! One very cool development in recent years has also been a website called Legitmix.com which allows you to legally sell your productions with uncleared samples ("uncleared" at least in the traditional sense).
But what about Fair Use as a defense?
2 Live Crew - "Pretty Woman"
Fair Use is a very difficult defense to copyright infringement and to demonstrate a valid fair use, you have to show a court, among other things, that your unlawful use of a sample was legally "transformative" - specifically, for the purposes of criticism, comment, news reporting, teaching, scholarship, or research. A general example of a fair use of a copyright *could* be a news program using a copyrighted piece of music in video footage to discuss a news-related story regarding the music or the musicians/songwriters of the music.
In a case called Campbell v Acuff Rose that did actually make it to the US Supreme Court, Miami rappers 2 Live Crew proved a "fair use" of music they sampled on their "Pretty Woman" track when they made a "parody" of the original "Oh Pretty Woman" Track by Roy Orbison. The Supreme Court found that the Crew's raunchy remake of the Orbison original was a parody that used new lyrics to criticize and comment on the content of the original. Though this case decision was a huge win for all music sampling producers, its likely to be a woefully epic and costly uphill battle to try to argue in Court that illegally sampling some random soul track on 45 was a "fair use" if the use wasn't for an actual "parody" of the original track, but merely looped in the background as part of an instrumental component to a rap track.
Dang. "Fair Use" may be hard to prove, but are these laws generally being "Fair" to producers who want to sample?
Whether the current legal regime is "fair" sometimes depends on which side of the fence you are on. As a sampling producer, sure, you may likely believe that its unfair to punish/charge fees/legally pursue samplers who simply just want to make good music. As the owner of the original content/music, you may in turn likely believe that its unfair to have sample producers make profit off of your original creations without paying for licenses. There are millions of copyrights, and equally, millions of copyright holders in the US, so even though change may be warranted, the execution of change is likely going to be a very difficult task. The good news for people who do think a change is needed, is that the US Government is taking steps in furtherance of reevaluating the current copyright laws. Read more on that here.
My head hurts.
I totally feel you. And while most of this article was a sobering dose of tough love for producers out there who think they can get away with uncleared samples, or that they can hold onto a 6-bar, 5-note, or 3-note myth, hopefully this article helps clear up some confusion behind the myth, or at the very least, inspires music producers to be more cautious when sampling.
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And now some further disclaimer stuff:
The views presented are the views of Mita Carriman Esq, an entertainment attorney based in NY. This article does not replace or constitute legal advice of any kind, nor does it create an attorney-client relationship. You are advised to seek the help of a licensed attorney to help you with your unique and specific situation. Lastly, you can follow Mita on twitter at @nymusiclawyer or learn about her law firm at CarrimanLawGroup.com because it is her shameless plug.
