Interview with Charles Blackmon, Entertainment Legal Attorney

QUESTION:

Hi Mr. Blackmon, I’ve already shared with you my plans to create an Entertainment Industry focused Business Plan/ Funds Raising company called B.E. nBusiness, and I have lined up a client looking to create a music production company in NC. My first question comes from them in reference to proper sample clearance. It doesn’t seem to matter if it is a drum break or royalty free cd with pre-recorded music; it all seems to need clearing if used to create something new. Radio play is the goal for many producers and clearing samples ahead of time seems to raise the asking price for a track when others are looking to purchase it.

What steps should a producer go through if they sample? Is there anything that doe not need clearance? Can a producer copyright material if they have a sample in the track, if it isn't cleared?

I know I just asked several questions, but please take me through the process because it is definitely a topic I will run into time and time again working with different clients based in intellectual property laws.

CHARLES BLACKMON’s RESPONSE:

Clarify the position on producers, which use 'samples' in their tracks; whether that's a pre-recorded loop or a drum break.

You are right; many producers use samples, which sometimes include drum breaks. Samples are portions of another song within a new song. A sample can either be taken from an actual sound recording or derivative of a sound recording.   A drum break, is a pattern of drum beats played as an instrumental during the break in a song and is often used as a "fill" in a song. Since the evolution of hip hop, producers to create a drum loop have used drum breaks.

The producer's first step to clear a sample is to identify who the owner/publisher is of the sampled work; one way of finding out such information is to check the jacket covers of the CDs. Second, a producer can contact the performing rights organizations (ASCAP, BMI, and SESAC) to obtain contact information on the writer/publisher. Thirdly, a producer can visit http://www.copyright.gov/ to conduct an online search of the Library of Congress' records; and fourthly, a producer can hire a sample clearance house to handle things.

If the musical work you seek to register with the copyright office embodies a "sample", copyright protection will not extend to the incorporated "sample" [the preexisting material]. The creative expression of the original work contributed by the author is independent of any copyright protection in the preexisting "sampled" material.  Therefore, you can seek copyright protection in a work that embodies a "sample", but the "sample" embodied in your work will not be copy written.

Disclaimer: The content of this article is only an opinion. Do not use the ideas outlined in this article as a substitute for legal counsel.