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publishing songs with uncleared samples Channel Strip Plugins
Old 15th September 2011
  #1
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publishing songs with uncleared samples

Hey yall. Had a question.

I did the beats for a couple songs for a non-major label project for an artist who is relatively known, has some pretty big features on the album.

Anyway, he is asking for my publishing info. I don't have publishing yet, but can of course easily just register with BMI or ASCAP.

The question is, there are samples on the beats which are uncleared, he does not plan to clear them, and I have not cleared them, yet the artist has never said it was an issue or I should clear them, he is just going to try to go under the radar as he's not that well known yet.

So, I am unsure of the legalities regarding the situation as, I can not legally own the publishing, yet they are asking for my publishing info for the songs.

I am new to the business side, anyone with some experience care to shed some light? I know that using uncleared samples is pretty common in hip-hop even on records that do sell some copies and wondering how the publishing issue works.

Also, any other advice on what you would do in my situation would be helpful as I'm new to the world of publishing and such.
Old 15th September 2011
  #2
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Good question. I'm interested in knowing about this myself. I was kind of under the impression that whoever did own the rights would have the option to come after you for royalties or whatever if they chose to. If your song sold 1000 copies on Itunes it probably isn't worth their time but if your selling hundreds of thousands of copies they might be more inclined to do so. I'm definitely interested in hearing the facts regarding these types of situations.
Old 15th September 2011
  #3
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CaliTone's Avatar
 

The publisher of the uncleared samples can come after you for much more than the royalties owed. I wouldn't do it. My best advice is to do things legally or don't do them at all. Nothing good has ever come out of being dishonest.
Old 15th September 2011
  #4
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I'd get a contract saying you are not responsible for clearing the sample.
In this type of situation you probably wanna get the most money you can up front. Google music publishing, specifically, doing your own music publishing. Keep in mind you will still have to get w/ a PRO- ascap or bmi.
.
Old 15th September 2011
  #5
Quote:
Originally Posted by J1111 View Post
I know that using uncleared samples is pretty common in hip-hop even on records that do sell some copies and wondering how the publishing issue works.
Was, not is. Isolated drum hits, yes that happens of course. If it's remotely recognisable, make sure you get that contract! and get it checked by a lawyer.
Old 15th September 2011
  #6
Gear Nut
 

If you don't plan on selling a million copies don't worry about it too much. Sometimes it's easier to beg for forgiveness than ask for permission.
Old 15th September 2011
  #7
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Thanks

Thanks for responses.

I guess the main question is: I am going to have the beats on the album regardless, as of now I am not claiming any ownership of the material, so it seems like I have nothing to worry about. If I claim publishing on it, do I then just open myself up to problems? Basically, if releasing something with an uncleared sample, do people generally just not receive publishing, or still claim publishing and hope it is never found out? I want to do what the artist asks of me and he seems to think this is normal, he knows there are samples, but it seems to me like by doing that you open yourself up to trouble whereas otherwise I'm not claiming copywrite or publishing and it's not my record so seems like I'd be safe. I doubt much if any actual money would be made by me having publishing on it, by the time the artist recoups costs, considering neither song is a single. I just also want to fill out the paper work the artist wants me to fill out. I'm really pretty clueless on this and appreciate all feedback.
Old 15th September 2011
  #8
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You need to deal with this. Don't let anyone tell you otherwise. A mixtape is one thing. If it's going to be in stores, that's another thing. Don't risk it when you don't have to and it's not a big deal.

Currently as the situation stands, you are on the hook along with the artist and whoever else. I know producers who have been through this and it's not pretty when you start selling some units and they come after you and you have zero leverage to negotiate and you can't go to court because you will lose, and you basically pay out a ton of money.

The issue with publishing is that you get a split of the songwriting money. How that is split up is entirely up to the people who contributed. Some split everything equally; some do it based on contribution; some do it on who has the most leverage lol. So if you took a sample and added some drums or something and the artist wrote some lyrics, then there are three parties that wrote the song: you, the artist and whatever people wrote the sample (nevermind the sound recording in the copyright for now as we are just talking about publishing). What percentage the sampled party wants is a matter of negotiation and then you and the artist split the rest however you want.

So here's the deal. You have no problem clearing the sample and the artist doesn't want to. You are still on the hook. So what you need to do is have the artist INDEMNIFY you. Indemnifying someone is legal speak for taking the heat for them if sh!t goes bad. I am indemnified against any the use of any copyright selected or approved (with or without my knowledge) by the artist and whoever hires me on every record I produce. Period. You need to do the same. That way if the copyright holder gets pissed and comes after you guys, and you get sued in the process, the artist is on the hook for your attorney fees and any judgement against you. Not that it would go to court because everyone knows you'd lose, but basically in the settlement the artist takes full responsibility and you are free and clear. Putting an tiny little indemnification clause in your production agreement is no big deal. Will you get sued and lose out if you don't? Probbly not. Probably the artist won't make enough noise for someone to care. But on the flip side, getting indemnified requires about as much effort as picking your nose, so why wouldn't you?!?!

You really should have an attorney draw up a blanket production contract that you can use over and over every time you produce a song. Any halfway decent music attorney who knows anything will put that indemnification in there. That way you pay them once and then you just use the same contract - just change names and numbers based on the situation.
Old 15th September 2011
  #9
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ksandvik's Avatar
 

In addition to this being illegal, some distribution services have a licensing agreement that you sign telling that all your samples are cleared or you own. If you break this contract they could and will terminate the re-distribution agreement.

I hope one day the music styles that like to copy others' material actually sit down and make their own loops. It's not so hard.
Old 15th September 2011
  #10
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Chris, I VERY much appreciate you taking the time to write this response. It is very practical and helpful and exactly what I needed to know. You saved me a lot of time researching and probably not finding the exact answer I needed to my specific situation or other similar ones that may arise. I knew that there would be people on here who were knowledgeable about such situations and how they should be handled, and was hoping someone would chime in with specific advice based on experience. Thanks also for your additional info and advice, all very helpful to a newb to the business side of these matters. Thanks a million. Sorry for my anonymity but didn't want to put this business out there.
Old 15th September 2011
  #11
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3rd Degree's Avatar
 

I am in the same boat. I am producing an album where we don't plan on selling enough to justify clearance. We know much bigger artists getting away with it and know our limitations. We may even downgrade it to a mixtape to lessen our liabilities.

That said, thus far we have not found a compelling reason to get publishing. The same things we would need publishing for are the things that will but us in a bigger position to get caught. Not everything I did is sample and we actually decided to add 3 beats I didn't make (non sampled) that we can legitimately publish and use that to push our album. He also knows DJ's who may be willing to forgo royalties if we want to push unpublished works.

We have considered trying to copyright either only his vocals, or submitting the song and removing all sampled material. Although that is legitimate material we can copyright, it is not a copyright for what we are actually releasing. I haven't talked to a lawyer about this but I am guessing that it will either not matter, or possibly harm us.
Old 15th September 2011
  #12
Good stuff, great reply from Chris. If you plan on using uncleared samples, my advice to you is to replay them! record something in the same style, that way you won't have any problem with publishing or selling records, in case your song really blows up.
Old 15th September 2011
  #13
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Talonts,

Totally feel you.

Chris Lago:

Yeah man most definitely. I am now using a lot less sampling in my music, partially due to these types of considerations, and in the future if something seemed to have a lot of potential to blow up, I would definitely consider replaying elements. However, I did these beats a while back before I was really thinking about all that, and the artist already picked them, recorded to them, they are mixed, etc., so it's too late now. Plus the artist is really into that sample-based type sound and I think used the beats having a lot to do with their texture. Good advice though.
Old 15th September 2011
  #14
Quote:
Originally Posted by CaliTone View Post
The publisher of the uncleared samples can come after you for much more than the royalties owed. I wouldn't do it. My best advice is to do things legally or don't do them at all. Nothing good has ever come out of being dishonest.
I don`t think using chopped samples or clips is dishonest. Stealing a song or releasing material that you don`t own is. Artist who make collage out of paintings and photos are not thieves , But "The Man" did not like hip hop artist making large chunks of money from samples.

If you are sampling sounds and changing them that they in no way resemble the original. I say &$($ `em.

If you`re doing a "Puffy/Bad Boy/" then , pay up.
Old 15th September 2011
  #15
Gear Nut
 

^ Word.
Old 15th September 2011
  #16
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3rd Degree's Avatar
 

Quote:
Originally Posted by Caramel View Post
I don`t think using chopped samples or clips is dishonest. Stealing a song or releasing material that you don`t own is. Artist who make collage out of paintings and photos are not thieves , But "The Man" did not like hip hop artist making large chunks of money from samples.

If you are sampling sounds and changing them that they in no way resemble the original. I say &$($ `em.

If you`re doing a "Puffy/Bad Boy/" then , pay up.
I agree with you ethically 100%. But, from a legal standpoint, that will not get you out of trouble. The more you disguise what you use, the less likely you are to get caught but if you get caught, it doesn't matter what you do.

If you are not making money, you may be able to claim Fair Use. For profit, Fair Use doesn't apply.
Old 15th September 2011
  #17
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Danny Downer's Avatar
I mean everybody knows that it still is that way... Soo much underground rap is full of uncleared samples but it's always a risk...

RJD2 said in his Q&A sample till u get caught

But if u really wanna be safe go Chris's route if u got any phrase in ur contract that says something like: I didn't clear the samples artist has to do it, then your good!

Good luck with ur record anyways
Old 16th September 2011
  #18
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you should sketch out a risk/reward.

($ of clearing sample)/($ of legal fees, royalties, etc)*(likelihood of legal fees, etc)
so, >1 = don't clear samples, <1 = clear samples
(obviously there will be some heavy duty guesswork...)

so for instance if it cost $10 to clear a sample, but it would cost $10,000 for legal fees, royalties etc (and assuming there is greater than a 1/1000 chance you'll deal with legal fees, royalties etc) then you should clear the sample.

on the other end of the spectrum, if you are selling cd-r's to your friends for $0.10/each...

there is the obvious Bittersweet Symphony factor that figures into the guesswork, though, tipping the scales rather violently.
Old 16th September 2011
  #19
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3rd Degree's Avatar
 

Quote:
Originally Posted by LimpyLoo View Post
you should sketch out a risk/reward.


there is the obvious Bittersweet Symphony factor that figures into the guesswork, though, tipping the scales rather violently.
That's the obvious issue. You have to guess what it will cost you legally down the road. Not only is there the chance you are way off (for better or for worse) but you also have to account for the fact it's basically forever (well, some copyrights will expire but still). So, even if you account for that, you may find yourself not saving that money or putting it into a non liquid asset which poses a challenge. You may be putting that money towards an asset you don't want to give up (like a home).

Kind of off subject but my dad had a business and canceled his licence. Some how it didn't go through and they renewed it without letting him know. He had a $50 lean on his home. In the end, it wasn't a big deal but he had to deal with that before getting a loan. Even the simplistic things can get in the way, so understand what you are getting into.

As Chris Carter said, after releasing, you will have no leverage.
Old 16th September 2011
  #20
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Just to clarify, as I think a couple folks may have misunderstood my advice. I wasn't presenting any opinions on whether or not to clear the stuff, as it seems that's out of the OP's hands and is thus not really relevant to the discussion. I was only addressing his specific risks as producer. There is absolutely no headache involved in being idemnified against the use of the samples. It's akin to going through the effort to put on your seatbelt when you get in the car. It's not nearly the headache of clearing something. In other words, my advice was essentially such: who cares if you get sued, just make sure you don't take the heat if it happens!
Old 16th September 2011
  #21
Gear Addict
 

Quote:
Originally Posted by Zo22 View Post
If you don't plan on selling a million copies don't worry about it too much. Sometimes it's easier to beg for forgiveness than ask for permission.

Just do it. If you get to the level where its a problem, then you've made it!
Old 16th September 2011
  #22
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3rd Degree's Avatar
 

Quote:
Originally Posted by chris carter View Post
Just to clarify, as I think a couple folks may have misunderstood my advice.....In other words, my advice was essentially such: who cares if you get sued, just make sure you don't take the heat if it happens!
I probably went too far as I am actually releasing material jointly with someone else so I am not just the producer in this case. As you said, if you are only playing the role of the producer, you just need to to make sure that the artist or label assumes liability.

In reality, it is usually the releasing parties responsibility to clear the sample and you probably won't get burnt, assuming you make it clear to the artist that all sampled work you submit to them is sampled and you gave them all information for them to properly clear. That does not mean that you are sitting pretty, even if they don't come after you. You will likely not be able to receive any royalties until any lawsuit has run it's course.
Old 17th September 2011
  #23
Gear Addict
 

Quote:
Originally Posted by J1111 View Post
Hey yall. Had a question.

I did the beats for a couple songs for a non-major label project for an artist who is relatively known, has some pretty big features on the album.

Anyway, he is asking for my publishing info. I don't have publishing yet, but can of course easily just register with BMI or ASCAP.

The question is, there are samples on the beats which are uncleared, he does not plan to clear them, and I have not cleared them, yet the artist has never said it was an issue or I should clear them, he is just going to try to go under the radar as he's not that well known yet.

So, I am unsure of the legalities regarding the situation as, I can not legally own the publishing, yet they are asking for my publishing info for the songs.

I am new to the business side, anyone with some experience care to shed some light? I know that using uncleared samples is pretty common in hip-hop even on records that do sell some copies and wondering how the publishing issue works.

Also, any other advice on what you would do in my situation would be helpful as I'm new to the world of publishing and such.
This interested me, how do you define relatively known but not that well known. This is a serious question. I was just wondering when do you cross the line from one to the other ? Especially given ones known-ness may influence how many want to hear the material that may be contatining the samples (cleared or unlceared)
Old 17th September 2011
  #24
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DesmondA's Avatar
cl......cl.....clearing..samples? Unless ur about to drop a single with will.i.am drake and katy pery ur wasting ur time.
Old 17th September 2011
  #25
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Storyville's Avatar
If you are not protecting your legality based on the idea that the artist will remain relatively unknown, your head is in the wrong space - and so is the artist's.

Do it by the book and take yourself seriously. At the very least, protect yourself.
Old 17th September 2011
  #26
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mrfortune's Avatar
 

The company I work with has a few national hiphop acts on the roster, mostly sample based, they were on a major in 93(hint).... never heard of any issue then or now and they are very active. Of course a loop that is basically the sampled song may attract more attention, out of hundreds of releases I've been affiliated with one way or another I think I've only heard one case of sample issues and they just redid and releasesed the song without the sample. Your usually going to get a cease and disist order before unless your making some serious money

Sent from my Droid using Gearslutz.com App
Old 17th September 2011
  #27
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Raj Smoove's Avatar
If everybody cleared every single sample a ton of great music would never be made or heard!

Apart from the conversation of sampling as an art form (which can be a lengthy one), this is about risk vs reward. I agree with DesmondA. If its not high profile you don't have much to worry about. We all have grand dreams of making a hit record, having it be picked up by radio, blowing up on itunes, and gettin that major record deal. Unfortunately, most time you just end up with a good buzz in your area and the song itself doesn't really make you too much money.

Besides, if your song does get that big, when the majors come knocking they are not gonna release anything without proper documentation and clearances anyway. The first and only time I tried to get a sample cleared I actually got denied. And guess what? I used it anyway and put it out. Never got to the level where it was needed and I never got any flack. A friend of mine paid 2k to clear a sample for an independent project. Needless to say he never made his money back.

When you can afford to pay for samples and lawyers to handle the paperwork, it makes sense to do it because that means you should also have enough money for a proper marketing campaign which will put you in a position to make money off the song and possibly a better chance at a major deal. If you don't have it, **** it. put it out anyway and all the money you make from it just put on the side in case it gets to the level where they do come after you. At that point you have a name for yourself and should be on the other side of the industry door where you can really make some money. consider it your price of admission.
Old 17th September 2011
  #28
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RedTuxedo's Avatar
Quote:
Originally Posted by Zo22 View Post
If you don't plan on selling a million copies don't worry about it too much. Sometimes it's easier to beg for forgiveness than ask for permission.
Not good advice....


Quote:
Originally Posted by wiz1der View Post
Just do it. If you get to the level where its a problem, then you've made it!
And then lost it all and more....
Old 17th September 2011
  #29
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Quote:
Originally Posted by RedTuxedo View Post
Not good advice....

+1!
Old 19th September 2011
  #30
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Danny Downer - Thanks for the good luck!

Chris Carter - Yes, your reply is spot on. Although it's cool to discuss sample clearance issues in general, you are right, this situation is what it is already, and clearance/not clearance is out of my hands, so I am just trying to handle the situation, as is, in the way that is best for me.

Storyville - Def get what you are saying, but I am sort of at the mercy of what the artist wants to do. There's no way either of us could afford to clear the samples. That's why I am largely trying to simply protect myself, and Chris' advice seems pertinent, as that's all I have control over.

AKA - The artist is well-known enough to get featured on some big hip-hop blogs, play some pretty major festivals in minor slots. Kind of on the cusp. Has features on the album from some really high profile underground hip-hop artists, but is not at the same level himself yet. It is hard to say how much exposure it will get as I think that will somewhat be determined by the project itself as it is their first official album, so it is hard to really say how "under the radar" it will be until it happens. Certainly a lot more under the radar than some albums with a lot of uncleared samples that are still available for the public to purchase today. I would say actually getting sued is highly unlikely, I am just wanting to handle my business as properly as possible, and not put myself out there in a way I don't need to being that I am trying to fly under the radar (i.e. trying to make publishing money).
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