Sampling became wildly popular within the hip-hop community starting in the 1970s—and courts have been scurrying to sort through the legality of the practice ever since. Let's look at how sampling and copyright infringement are related—and what today's musical artist can do to avoid breaking the law.
What is sampling?
Sampling, logically, is the practice of lifting a portion, or sample, from another song or multimedia work (such as television or film) and reusing that sample in a new way.
Sometimes, sampling is as simple as taking a snippet from a song and reproducing it in another song. A recent example of this is Kanye West's sample of Bon Iver's "Woods" in his new song, "Lost In the World," which includes a recording from the former, recognizably added to the latter.
Other times, sampling is more difficult to detect, a snippet from one song being looped and extended and modified, creating something hardly recognizable as the original.
Sampling and derivative works
For the purposes of copyright law, either type of sampling includes incorporating someone else's work into your own. This process is defined as a "derivative work." According to the Copyright Office:
A derivative work is a work based on or derived from one or more already existing works. Also known as a “new version,” a derivative work is copyrightable if it includes what copyright law calls an “original work of authorship.”
It's important to note that by "original work of authorship," the Copyright Office is not making a statement regarding the quantity—or quality—of that authorship; any new additions or creativity applied to a previous work, no matter how small, renders the result a derivative work. Natalie Cole's duet rendition of "Unforgettable" with her then-deceased father is, legally speaking, just as much a derivative work as any hip-hope tune that incorporates an altered beat from another tune.
Derivative works and copyright infringement
Copyright law states that, generally, the owner of a copyright has several exclusive rights: the rights to distribute the work, reproduce the work, perform or display the work—and the right to prepare derivative works based on that work. With limited exceptions, such as fair use, anyone infringing on those exclusive rights is guilty of copyright infringement.
Therefore, since sampling from an existing work creates a derivative work, and creating derivative works is the exclusive right of a copyright holder, any artist wishing to sample material from another artist should obtain permission from that artist first. Legally, this is the safest way forward.
Sources:
- "Derivative Works," Copyright Office
Sarah Kolb - Business incorporation and copyright registration specialist. Freelance book editor. Senior content editor/writer.
