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Old 9th May 2019
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3rd Degree's Avatar

Originally Posted by atma View Post
Ok, so what's an artist like myself supposed to do? If I sample perhaps 8 different (completely obscure) songs; manipulate and collage snippets of them together into something coherent of my own and record a rapper over it—I'm supposed to clear all of those samples before releasing it (even locally) in order that I don't get sued? That's absolutely bonkers to me.
You have two options.

Release it and understand you have a liability. Though you may not get caught, if you do, you may get a cease and desist letter and have to pull all your music offline, and also destroy all remaining physical copies. You may get a letter asking you for a specific amount of money and if you don't pay, they will file suit, basically a settlement agreement before the suit is filed. Or they may sue you. Or you get away with it. Remember one key factor here, if you don't make a lot of money, that doesn't mean they can't sue for a lot of money. It's a negotiating point, certainly, but copyright law does not consider how much you made or didn't make when you infringe. Case law has shown that it can be a factor, but just per the law, it doesn't consider your business activities, or lack their of, as a compelling factor, copyright law is to protect a work, not to make it accessible at a certain price point if you cannot afford what the owner thinks it is worth.

Second option, follow the law. If you can't afford it, shop it to a label who would give you the budget, find investors to allow it to work, or don't release.

I did a full album which was getting great feedback but ultimately decided to pull out when the business details changed. I wasn't willing to take on that liability. Contrarily, I have a YouTube channel where I do sample, but I am teaching people how to do things, I do not monetize it so I think that falls under fair use. Fair use is challenging as their is little case law, but in my view, I feel I have a very compelling argument.

Though nothing in the law says you are allowed to do this, a 3rd option would be doing a mix tape. Historically, this has worked because the artist makes no money and for whatever reason, the copyright owners don't seem to go after people.

Now, that said, what I do, and what I say, don't resonate with what I think should be right. I believe the the SR clearance should not be applicable to sampling. My opinion doesn't matter though, I am not actively lobbying for change here and therefore my opinion is just an opinion.

What I actually do, I don't sample without and agreement (which is typically an indemnification clause in my contract) that the label or artist has the responsibility to clear all samples in the work. I don't do this with broke artists who I know cannot afford this. If I know the funding isn't not available for clearance, I simply do not release sample based work to that artist, I just compose so it's a non issue.

Research the industry and formulate where you are at. Plenty of high level artists may choose to not clear a sample or release a song that they cannot clear. I personally am not financially set for liability like that. But I am rich enough to sue.