Kendrick Lamar may be bigger than the Eiffel Tower now, but in 2009 he was just another kid from Compton hoping to get someone, anyone, to hear him rap. Fast forward to 2016 and K. Dot's now got more money and more problems as Billboard's reporting that he's being sued for using a Bill Withers sample for "I Do This," off his '09 project, the Kendrick Lamar EP.
That's unquestionably the same song, there's nothing much more to say there. Instead, I'm mostly interested in this story because it gives me yet another chance to dispel one of the most common myths I see producers and rappers believe - that you can't get sued for a sample or beat used on a free project. Clearly, that's wrong.
This is America, you can get sued for anything, and beyond our country's lawsuit-happy nature, in the eyes of copyright law using a sample is using a sample, regardless of if the music ends up being sold or released for free. To use a shallow analogy, you could steal a bike and re-sell it, you could steal a bike and give it away for free, either way you still stole a bike.
Instead, 99.9 percent of the time, even if you clearly did violate copyright law, it's simply not worth it for someone to go through the hassle of suing you. They could win the case, be awarded damages equal to 100% of the revenue from the song or album (which would be nothing or very little), and still not make enough to even cover their legal fees. In other words, rappers are often protected by their own poverty and mistake that as a sign that they can't be sued.
Clearly though that math changes once an artist gets bigger and copyright holders have more revenue streams to go after. If the song was ever performed in concert, they could ask for some of that concert money. The lawyers could attempt to argue that the song lead to them getting a record deal, which lead to them making millions, and ask for a cut of an artist's earnings separate from strictly the song itself. It happened to Drake, it happened to Mac Miller, and now it's happening to Kendrick.
Artists, please, learn about fair use. That's the only term that matters. Mixtape or album, free or for sale, broke or rich, it all comes down to meeting the requirements of fair use. Is the sample transformative and/or is it de minimis (so small as to be insignificant)? If not then you could always be sued for violating copyright, even if you never are because you're not worth being sued. If so then it's fair use, you're within the bounds of copyright law, and you could put the sample on a platinum-selling album if you wanted (although, again, you could get sued anyway, you'd just have firm ground to fight back on).
Ultimately my advice to you is the same advice I would have given a young Kendrick Lamar. If the music's great, go ahead and sample. With all due respect to your superstar dreams, the odds are high that you'll never be famous enough to be worth suing, and if you do blow, then you'll have the pockets to pay if the sample's not fair use, as well you should pay. TDE should have gotten out ahead of this by reaching back and clearing the sample after they placed it as a bonus track on OD, just like they should have done with "Rigamorits," but really it wouldn't have mattered if they put the song on iTunes or not. They could have been sued either way.
So sample on my brethren, just be smart out there. If it could happen to K. Dot, it could happen to you too.