Sample clearances have gotten every artist—at every level—in trouble. The art of sampling extends beyond finding loops; it’s a process deeply rooted in complex business dealings. For artists who are looking to sample and clear samples the right way, we’ve spoken with TuneCore’s Chris Dampier, VP of Publishing, about the ins and outs of sample clearances and costs.
While Dampier gets into extreme detail, he also has one salient piece of advice for all artists: “Don’t roll the dice; give up a piece of the pie for peace of mind.”
Our conversation, lightly edited for content and clarity, follows below.
Let’s start simple, on the business side: What is a sample?
On its face, the art of sampling is a simple concept; one [takes] a portion of an existing track and uses it in a new one. But what does that actually mean? Well, ultimately, you’re using someone else’s property and need permission to do so. It’s important to understand the music business revolves around two distinct copyrights. One, the sound recording, and two, the composition. The former refers to the recording of a song; the latter refers to the unique qualities of the song, such as the chords, lyrics, and melody. When you think of sampling as a process, it is important to think of the role these two copyrights play as there are actually two ways to sample. The question is, are you sampling the original sound recording, or are you interpolating— otherwise known as “re-playing” or “re-recording”—part of the composition?
The answer to that question will inform how the business side of the process is handled: If you’re sampling, you will need to clear both the sound recording and the composition because you’re using both copyrights. If you’re interpolating, you’ll only need to clear the composition since you’re creating a new sound recording but using the original composition.
When you’re clear on what rights you need, the actual clearance process begins. That process is usually a bunch of research as to who the rights holders are, contacting them and negotiating terms, and then finally drafting and executing agreements. It’s a pretty involved process.
We see albums held up all the time because of sample clearance issues. Can you explain what those are?
There could be any number of issues! It may be there was an unknown sample that was discovered at the last minute. Once a record is in the market-place with an uncleared sample, all leverage is lost as far as clearing that sample, so that would certainly hold up a release. It may be that you’ve not been able to clear 100 percent of the rights of a specific song; there could be one person with a small percentage of ownership that cannot be located or is being difficult for whatever reason.
Perhaps an estate or songwriter doesn’t like a portion of the new song and won’t approve until some changes have been made musically or lyrically. Or it could be purely financial; perhaps some unreasonable demands are being made that render the clearance process entirely cost-prohibitive. Maybe the sample is that obscure that the copyright owners cannot be found.
What happens if an artist doesn’t clear a beat sample and still decides to sell their song? How bad can it get for them?
It can be very problematic and expensive. The reality is, if a song isn’t getting much in the way of traction, it may simply go under the radar. In any case, I wouldn’t advise trying to put music out without the appropriate permissions and clearance in place. You may end up spending a fortune in legal fees and losing any royalties your song generates.
The industry is littered with unfortunate examples of uncleared samples. I recall Logic tweeting last year his shock at the fact A Tribe Called Quest doesn’t have any publishing on “Can I Kick It.” This isn’t unusual, though... Tribe, De La Soul, The Pharcyde... A lot of the pioneers of sampling have music out there for which they don’t make a penny because nobody attempted to clear the rights. It’s not just limited to hip-hop either.
Then there’s the question of re-playing samples. Do you advocate for artists to do that if they’re on a budget?
Well, there is less clearance involved as you’re only clearing one copyright, so that will, of course, reduce your costs. But ideally, it should be a creative decision. Maybe the sonic qualities of the specific sound recording being sampled are important to the new work and are hard to reproduce. Conversely, when you re-record a piece of music, you have much more freedom to manipulate the music, so that may be preferable. I wouldn’t advocate for either scenario as it depends on the specific work, sample, and financial situation.
From your view, are the days of sample-heavy productions behind us?
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No, I wouldn’t say so. I look at companies like Tracklib who have been created out of an appetite for samples at low cost. It’s not just the indie world either. The charts are still consistently full of tracks with prominent samples. That said, I do think the art of sampling has evolved.
When I was growing up, listening to sample-heavy music, it was a lot of drum beats being sampled and looped. That has changed somewhat… As production techniques and software have evolved, more people replay melodies, whether it’s a vocal or instrumental hook. We also have a much deeper pool of music to sample from that is available instantly… The art of digging to find that rare sample has gone from searching dusty basements of record stores to scouring YouTube. This, of course, brings about clearance headaches, which is why you need to enlist the services of an experienced clearance agent.
So, let’s pretend I record a song with a beat sample. It’s cleared. Who owns what?
Sample clearance isn’t cheap. Firstly, there will be upfront costs charged by both the master rights holder and publisher(s). I’ve seen master fees go as high as $10,000 while the publishers may charge $1,000 to $3,000 in the form of a non-recoupable advance. Also, everyone wants income participation now.
For the master, you will likely need to split income from 1.5% to as much as 10%. For the composition, you will be giving up ownership to varying levels depending on how you used the original song. Multiple variables could determine ownership and, ultimately, how much you give up in royalties. It is important to note the original composition writers are going to be listed as co-writers on your new composition. Meaning they are co-owners of the new song and will share any revenue generated by that composition. What percentage of ownership you give up depends on how the sample is used. How central is it to the new composition? Is it part of the main hook or chorus? Is it used throughout or just a small snippet?
If it’s a beat specifically and used throughout with an artist rapping over the top, perhaps that would warrant giving up 50% ownership in the new work. If it’s a beat and there are multiple other musical elements you’ve added... Maybe that can be reduced to 33.3% or 25%.
This is all a negotiation at the end of the day, and for the most part, people are pretty reasonable. In some cases, a sample may be breathing new life into an old work, so the original copyright holders benefit, too.
In your professional opinion, from ideation to release, what are the best practices for incorporating a sample into your productions?
Stay organized and prepare mentally. The reality of the matter is you’ll need a budget and be prepared to give up partial ownership in your new song or even remove the sample entirely! In most cases, someone will request to hear the track before approving. If an artist or producer has spent all their time creating a track to which the sample is integral, only to have to pull it, that can be disheartening.
Plan in advance. Any number of scenarios could play out, so you may need the lead time before release. Freddie Gibbs and Madlib’s Bandana album took over a year and an estimated cost of $100,000 in upfront fees to clear the dozens of samples used.
Organization is uber important for multiple reasons. You will want to document your work in the studio… Keep track of all the elements of each production. In the digital age, it’s so easy to quickly find a loop or hook on YouTube, throw it into Logic, and forget where you found it. Please keep track of where you sourced the assets; this will help massively when it comes time to clear.
On that point… in the age of beat licensing platforms such as BeatStars and Tracklib, try and be conscious of whether the beat you’ve licensed contains a sample, so you’re not unwittingly including an uncleared sample.
This is easier said than done, but it’s exactly what happened when the beat for Lil Nas X’s “Old Town Road” was licensed through BeatStars. The beat had an uncleared use of a banjo taken from a Nine Inch Nails song, which was only discovered after the song had gained significant traction. This could have been hugely problematic, resulting in millions of missed revenue. Fortunately for Lil Nas and Kiowa Roukema, the original producer, Trent Reznor, and Atticus Ross were forgiving and settled for a 50% ownership share in the song. Still, they were well within their rights to ask for 100%.
As a publishing administrator, I’m a big proponent of an open line of communication between producers and artists using beat licensing platforms. You’re collaborators at the end of the day and should be in contact beyond the simple licensing transaction.
Ask some basic questions: Did the producer play or program the instrumentation or have they taken a loop from someone else’s work? If so, where did they source the various elements of the beat? It may be that the producer doesn’t understand music rights, and a conversation may unearth a nuance that is integral. In the ”Old Town Road” example, when you dig a little deeper, the banjo was taken from a track made available by NIN via a Creative Commons license, which affords the right to copy, distribute, remix, and transform free of charge. However, those rights do not extend to commercial usage. It’s easy to understand how someone may misinterpret what they can and can’t do with a sample.
Finally, don’t handle the clearance yourself. Music rights are complicated; it’s best to leave it to the professionals. There isn’t one centralized database that details all the pertinent rights holders of a musical work. You’re relying on public repertories from collection societies and copyright offices, and these are not always accurate and up to date. Music rights change hands, and you’d be surprised at how many shares aren’t registered. There may be someone with one or two percent that comes out of the woodwork with unreasonable demands at the last minute!
Enlist the services of a clearance agent—DMG, Alien Music Services—these guys have been doing clearance for years. They know the catalogs, have the contacts, and can give you candid advice on pricing and the realities surrounding a specific use. If budget is an issue, turn to a platform like Tracklib, who can provide pre-cleared samples at a low cost. There may be a cheaper alternative that works musically.
For any artists who may have their heads spinning by now, what’s the simplest advice you have for them in regards to sampling?
Don’t roll the dice; give up a piece of the pie for peace of mind. To use a cliche: 50% of something is better than 100% of nothing.