When you begin learning to compose music or when you start seriously making music for profit, you may worry that you’re breaking the law simply by sampling from a favorite artist. The internet is full of misinformation when it comes to song plagiarism and copyright issues, so it can be hard to find reliable facts. Let me help set the record straight, if you’ll excuse the pun.
Is sampling music a form of plagiarism?
Sampling can be a form of plagiarism, but it is not always. Sampling (using parts, bits, or portions of prior recordings to be incorporated into a new song) without permission is a violation of United States copyright law. With permission, however, sampling is not considered plagiarism.
The key takeaway to this quick answer is that you should always ask permission first. As with most things, there are a lot of small details that you really should know before you start sampling music for your own compositions.
What Exactly is Sampling?
This term gets bandied about quite a bit in the music world, but it doesn’t always mean the same thing to every person. It does, however, have the same basic meaning—where people take it from there is a personal choice.
Generally speaking, sampling means taking a part, a bit, or a small portion of a previously written and recorded song or other composition to be used in a new song or composition. That’s a very basic definition, and it makes sense. The confusion comes in when people start putting their own spin on it.
In one of the best TED talks about music, Mark Ronson gives us an overview of how sampling changed music. In his own words:
“In music we take something that we love and we build on it.”Mark Ronson, Ted Talk
What is Plagiarism?
Plagiarism was originally meant to refer to written works such as books and articles in newspapers or magazines. One official definition is: the practice of taking someone else’s work or ideas and passing them off as one’s own.
Because of that vague definition, the usage of the word has evolved.
While using the word plagiarism to refer to music isn’t technically correct according to some wordy-types, it has become so widespread in usage that it’s become acceptable phrasing. The important part isn’t necessarily the official dictionary definition, rather it’s the understanding that something has or has not been stolen.
If you’d like to avoid arguing semantics with people, you can simply talk about copyrights instead of plagiarism. I’ll use both terms interchangeably from this point on, but I’m talking about sampling music without permission.
A Quick Word on Copyright
Since plagiarism and copyright infringement rely on copyrights, it’s important to know exactly what that means. In the United States, the law states that whenever a person writes a book or story, or records an original piece of music, a copyright automatically exists. They don’t need to register it or anything; the copyright simply exists. They can register it for added legal protection, but it is not required.
It’s best to have written copies of your work, as well as digital versions with date and timestamps now that computers are a thing, but just having created the song or other work gives you an automatic copyright. It’s been that way since 1978.
Confusion Over Sampling
Because humans simply must argue over every tiny thing, there are some issues that can crop up when considering sampling other music to write your own songs. While this isn’t an exhaustive list of the possible problems, I’ll cover some of the most common hiccups.
Some people believe that a sample should only be a certain number of notes or a short, speedy riff. Others think you can sample large sections of a recorded piece, such as several measures or up to a minute of the track.
While taking a full minute of another artist’s work seems pretty sketchy to me, if you were given permission to do so, it’s a legitimate, legal sample. Have fun with it! If you weren’t given permission to use that much, it’s absolutely plagiarism and you are liable to wind up in court and paying some hefty fines for your thievery.
Another sticking point for the plagiarism and sampling argument is how the sample is used. It’s widely accepted that a short sample of a measure or two used as a background piece is okay, as long as everything else over that sample is unique and new. Trouble starts when the sample is more obvious, more upfront, and used as a main element of the new composition. The longer that sample and the more obvious it is, the murkier the water becomes.
Amount of Change
And finally, many people get bent out of shape if a sample isn’t changed enough. The problem arises when “enough” isn’t clearly defined. Some believe that changing a single note or beat is enough to make the sample legal, even without permission from the original artist. Most people think this is hogwash, however.
The other side of this argument comes from artists who do a lot of sampling and mixing. There is a subsection of these composers that believes once you change a sample enough, it no longer counts as a sample at all and is now a completely original work.
That’s probably the hardest one to fight for both sides.
The popularity of the original work
This one is a bit unfair, but it’s how things work right now. The more popular a song or artist, the more likely you’ll get dinged for copyright infringement. The only reason this happens is that more people will recognize the sample and that means it’s more likely to get back to the copyright holder that you stole it.
That said, I don’t mean to imply it’s okay to steal from unknown artists. It’s still wrong morally and legally. It’s just that the less-known a song is, the more likely people will get away with plagiarizing their work. For some reason, some of the more unscrupulous thieves out there will use the relative anonymity of unknown artists as an excuse for stealing from them.
It’s probably pretty clear by now why the idea of plagiarism in music sampling can get tricky.
What Happens if You Plagiarize by Sampling?
Even if you end up plagiarizing music on accident, you can still get in deep, expensive trouble. The law doesn’t leave room for willful ignorance. Simply put, that means it’s up to you, the songwriter, to know, understand, and follow the law. If you accidentally break the law, you’re going to pay the price.
Each case will be different. That makes it impossible to say definitively what will happen if you infringe on a copyright by sampling, but here are some things that could happen to you.
You could end up paying “statutory damages” if you infringe on a copyright. These can go from a few hundred dollars to $20,000 for a single use of a sample. Damages can go all the way up to $100,000 if the courts think you did it on purpose or maliciously. Whoever owns the copyright to the piece you sampled without permission can ask the court to issue an injunction. This will force you to stop violating the owner’s rights, and it may also force you to recall and destroy all of your albums, CDs, and digital files.
Some court cases are a matter of public record, too. While that may not seem like a big deal right now, keep in mind that your reputation will be trashed if you’re caught plagiarizing. It doesn’t take much to find this information; your career could tank.
All that said, it’s far more common for copyright infringement and plagiarism cases in music to be settled out of court. Going to trial is expensive and time-intensive. Nobody really wants to do it. If it can be settled out of court, that is almost always the best choice.
Do keep in mind that this is a music website and not a legal one. I can’t give you legal advice, and nothing here is written or presented as such. Everything here is informational only with a smattering of personal opinion. If you need help with a copyright infringement case, please hire a lawyer.
How Do You Know if You Have Plagiarized by Sampling?
This can be tricky because it’s based solely on personal opinion. I know it’s not exactly fair, but that’s how the laws are written.
A sample must be “substantially similar” to the original to be considered copyright infringement. It will be a judge or a jury of your peers that determines this. The sad fact is that most judges and juries aren’t always going to be musicians who understand all the details or even fans of your music. If it sounds “the same” to them, even if you believe it is substantially different, you’re probably going to lose the case.
This happened recently with Katy Perry’s Dark Horse, which unfairly lost a case for $2.78 million. The case wasn’t about sampling but about similarity. But the supposed similarities are so little that it’s ridiculous. Adam Neely put up a great video about it on his YouTube channel.
What about “fair use”? Can’t I use up to four notes without breaking the law?
Many musicians get caught in this misconception. Don’t be one of them. The rumor of “four notes is fair use” is just that, a rumor.
There is no “fair use” clause in copyright laws regarding the use of up to four notes. In fact, one famous case of copyright infringement comes from Saturday Night Live when they used a tune that had only four notes in it. If there was such a thing as the four note rule, that song would have been okay to use!
That said, there is a “fair use” clause in copyright laws. It has nothing to do with using up to four notes, however. The fair use clause deals more with parody and similar use. That’s a bit more than this article is supposed to go into, though.
How to Sample Legally
This will likely be the shortest “how to” you’ve ever read. How to sample music legally? Just ask!
To sample legally you’ll need 2 permissions:
- A license for the ‘master recording’
- And one license for the ‘underlying composition’
Here’s a great article by CD baby about clearing samples the right way.
In general, it is literally that simple. Just ask the copyright owners if you can use a sample of their work. The copyright owner may be the artist or the record company, so simply ask around until you find the right person. Be sure to sign a contract stating they allowed you to use the sample, just in case someone gets grumpy down the line.
I know, this whole topic can be rather confusing. However, if you take only one thing away from this article, let it be this: Don’t steal; ask! The worst that can happen is they tell you no. If you choose to plagiarize music, however, you could end up broke and ruined. It’s not worth the risk.