Thursday, October 17, 2013

Music Business/Law Tips - "De Minimis/Fair Use vs Samples"

A common myth is that one can sample a “tiny piece” (i.e. de minimis) of someone else’s music without permission. This is not legally correct. When someone samples any portion of someone else's music without proper authorization, it gives rise to a cause of action for copyright infringement. The copyright owner has every right to sue, and if they timely registered their copyrights, the statutory dollar damages could be quite high. If one wants to obtain the rights to sample existing music properly, one has to clear the rights to the music composition copyright; and, if one wants to use the sound recording, then the sound recording copyright has to be cleared as well (both copyrights). This can be a real pain and sometimes expensive. As for the related concept of "fair use," it's a defense that might be valid to defend against copyright infringement, but its difficult to prove. Sampling under fair use must be for the strict purposes of criticism, comment, news reporting, teaching, scholarship, or research. A court will weigh the following factors to evaluate whether there was an actual fair use: (1) the purpose & character of the use (i.e., was it for profit or education?); (2) whether the work been published already; (3) the amount and substantiality used; and (4) the harm done to the original copyright owner by the competing work. Bottom line: do not sample without securing the proper rights first. More often than not, music sampling is not protected by fair use; and even if it is, one still has to pay to prove/defend the argument in court. Best solution: create original music. Ben McLane Esq

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