Sampling is less than four notes

You've heard of sampling - the practise of snarfing sounds and then encorporating them into pieces of music but what are the legalities? For a lot of underground artists it's not really an issue as even though there might technically be legal problems, the reality is that no-one much will know and the sums of money involved (zero!) aren't going to excite the biz types in record companies, publishing places or legal firms.

The rights or wrongs of the present system won't be debated here but I think most people would agree that where a lesser known artist uses a well known artist's work to help achieve acceptance for their own work, and where money is being made, then it's fair that the original creator actually gets something (whether they do or not under the current system is another question).

OK, some technicalities - If you use other people's music without permission you immediately violate two copyrights. The first is the sound recording copyright which is mostly owned by the record company. The second is the copyright in the song itself which might be owned by a publishing company.

One piece of conventional wisdom floating around is that if the sample is less than four notes then all this copyright stuff doesn't apply. That piece of wisdom is completely wrong.

So, to recap, you need permission from the owner of the recording and also from the copyright owner of the musical work. In the US and the UK (and maybe elsewhere) there are companies who will search out permissions for you and will charge less than entertainment lawyers.

As far as payment is concerned, you can pay a flat fee or a percentage of the mechanical royalty rate. The flat fee could be anywhere from US$200 to US$10,000 and the royalty between US 5 cents and 3 cents. There is a chance that you'll get them for free.

If you do go ahead without permission and don't live (or distribute records) in an out of the way place then you could be up for some nasty fines. An infringement is subject to statutory damages that could cost anywhere between US$500 to US$20,000 per infringement. If the court rules that the infringement was willful (you didn't give a damn) then damages could be up to US$100,000 plus they could order that CD's etc are recalled and destroyed.

Which is a good reason why the Avalanche's recent CD was held up while something like 900 permissions were obtained.

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