In regards to the music world, “sampling” refers to taking a clip of one sound recording and using it again within another piece of music. Although sampling tracing its history back to the first tape recorders, it became popular in modern music starting in the 1970s during the beginnings of hip hop music. At the time, sounds were sampled by playing them back manually on record or tape players. However, the arrival of hardware sampling equipment simplified the process and now music software has made working with sampled sounds even easier.
Though sampling has allowed for the creation of entire new genres of music and is quite commonplace in popular music, it carries with it a range of legal aspects that artists should be aware of.
Typically, when an artist or producer includes a sample of someone else’s music song without their permission, it is an act of copyright infringement (as defined by the “unauthorized use of copyrighted material”). This, of course, only applies if the sampled song was copyrighted. If that is the case, it is likely that the person sampling the material has violated two copyrights, namely the sound recording copyright, which generally belongs to the record label who released the song, as well and the copyright of the song itself, which is most likely held by the artist who wrote the song.
There is some confusion regarding how much of a recording may be sampled before it is liable for copyright violation. So-called “fair use” policies apply to creative works, including music, and many believe that if a sample is short enough, meaning only a very tiny portion of music is sampled (perhaps less than a few seconds), then it is allowed under law. This is completely untrue – any amount of copyrighted music that is included in sampled without permission is grounds for copyright violation litigation.
So what are the penalties for copyright infringement? That varies, of course, but in the US, it starts with a fine of between $500 and $20,000. However, besides being able to force artists who break copyright laws to pay that amount (and possibly more), a court may also force musicians to withdraw all copies of their work that has violated the copyright owner’s rights. If the sampled material was released as part of an album, for example, that can mean having to recall the album from store shelves, at great cost to the artist and their recording company.
Because of the risks involved, artists are strongly cautioned to obtain permission from copyright holders before using samples in their music. If this is not possible or affordable, the sample should be removed or, alternatively, it could be replaced with a sample of a piece of music that is in the public domain.