Hypothetical Sample Copyright Question

[Vekked]

Was thinking of music rights/ownership and how sampling really confuses things even if it's legal. Say you make a song from a sample pack and a label picks you up and wants your song. They own the master recording of that song, but they can't really own the samples from it because they're not yours although you have the rights to use them. Say it's based off of a melody that's a straight 4 bar loop, they can't really own the recording of that sample or the melody. How could they stop you from just using the sample and melody again and doing whatever you want with it?

 

I think music and composition "ownership" is kind of a wack concept anyway but thinking about this made me wonder how it would be enforced. Like what if artists sold the stems of their songs to themselves as a royalty free sample pack then signed to the label, how could the label stop them from re-using it however they wanted, including making a virtual cover of their own song?

 

I dunno if I'm making sense, but I feel like recording and song writing rights are really tough to apply to sample based music where neither the recording of the sounds or melody are necessarily owned or made by the song's artist, and some samples and melodies are "un-ownable" by nature with things like creative commons and royalty free options.

[Jam Burglar]

I think that, beyond composition vs recording rights, you have to distinguish between licensing vs ownership rights.

 

If you use a sample pack legally, you have license to use that sample. You don't have ownership rights and you can't re-license the sample to anybody else because the original license is not going to allow you to do that. So if I make a sound, and I sell you a license to use it, and somebody else samples from you, then you have no right to sue that 3rd party for use of the sample. Only I do, because I'm the owner.

 

In any copyright case in the U.S. the Court asks two questions (1) is there infringement (ie. copying) and (2) if so, is there a fair use exception. And there are two types of copyrights, one for the recording (the music as its put down on the record) and the copyright on the composition (the music in written form, ie the order of the notes).

 

When you're looking at a copyright on a specific recording, it's still not even clear if there is any way to sample somebody else's specific recording without infringing, even if it's a really tiny sample and it's manipulated a zillion different ways so the notes are not in the same order as the thing you sampled. Some courts say that ANY use of the sample is an infringement and the only question is if there is a fair use exception.

 

A melody (the order of the notes) is different. That falls under the compositional copyright. Under the copyright on the composition there is much more wiggle room on the question of infringement. This is because if you could "own" specific series of notes and prevent others from using them, then copyrights on a small series of notes would shut down a lot of music because lots of people use the same series of notes for building blocks to make all types of different music. So, to own a copyright you have to come up with something relatively unique. In order to prove infringement with a composition, you need to prove copying of much longer segments of music. As with the recording, even if infringement is proven, you still have a fair use exception.

 

So, for example if you sample James Brown Sex Machine off the record, and flip up the notes, the mere fact that you are sampling the recording is likely to be an infringement on the recording. You won't be infringing on the compositional copyright unless you copy a long enough part of composition to pass a certain threshold. In either case, you could argue that, even though there is an infringement, there is some fair use exception why you shouldn't have to pay.

 

The key area when it comes to turntablism is fair use. The argument is that the manipulation of either the recording or the composition transforms the nature of the original material enough to merit an exception to the rule.

 

The entire reason for the copyright act is not so that people can own music. The copyright is a reward to the musician for creating something unique. The copyright is merely a means to justify the ends of having more unique music in the world. Therefore, as long as your end product is sufficiently unique, the logic goes that the original owner's copyright is not enforceable because it stymies the intent of the act. Unique music should (theoretically) always trump the original owner's copyright.

[Jam Burglar]

I think I get what you're saying now. Maybe the above structure helps you sort through it or may be you already knew all that.

 

Anyway, isn't the answer that you just want to negotiate ownership of your own music? Or, in the alternative, negotiate a license to sample your own music with the label that owns it? I like the way you're thinking because it's creative, but it's almost like you're trying to end run around the more direct route of just owning the rights to sample your own music in the first place. The whole purpose of contracts is avoiding the grey area that leads to lawsuits. It seems like the whole stems thing is just creating a grey area that the artist could avoid by outwardly negotiating from the outset.

 

To the extent you are sampling other people's sounds, you're always going to have to contend with the owner (or at least the risk of being sued).