Many clients still 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 (i.e., the song). 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.
In order to legally use a sample, you need to contact both the owner of the sound recording and the copyright owner of the underlying musical work for permission. License fees for sampling vary greatly and depend on how much of the sample you intend to use, the perceived value of the recording you intend to sample from, and the intended use of the sample in your song. Licenses can be granted "gratis" but usually there is a fee which is either a percentage of the record royalties and/or the mechanical royalties or for a flat fee paid upon execution of the sample license agreement (or a combination of both). There are no statutorily mandated rates for samples so the copyright owner can charge whatever the copyright owner wants to charge and does not have to grant permission to use his work at all.
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.
Although the "2 Live Crew"/"Pretty Woman" infringement case turned on the issue of "fair use", I do not recommend to clients that they try to rely on that copyright law doctrine when they want to use a sample in their work. And the idea that you can use a certain number of notes or seconds of someone's song without penalty is a myth.
One other issue is what is known as "interpolation" which refers to using a melody - or portions of a melody - from a previously recorded song, but re-recording it instead of sampling the original. Interpolation is used when the artist or label who owns the sound recording declines to license the sample or if licensing the sample is considered too costly. Unfortnately, this work around avoids using the sound recording copyright but may still implicate the underlying song copyright. In many cases, similar to samples, interpolations may infringe a copyright owner's exclusive rights in the song. However, unlike samples, since interpolations only implicate the preexisting musical composition then only a license from the musical work's copyright owner may be necessary.
Bottom line: the only proper way to use a sample of a prior recording in your recording is to get permission.
Wallace E.J. Collins III is an entertainment and intellectual property lawyer based in New York. He was a teenage recording artist for Epic Records before receiving his law degree from Fordham Law School. Tel: (212) 661-3656; www.wallacecollins.com