TMN Ask A Lawyer: Sampling

TMN Ask A Lawyer is a semi-regular column where our readers receive expert legal advice from renowned entertainment lawyer Brett Oaten.

:: ASK A LAWYER – BAND MANAGEMENT

In this second instalment, Oaten takes you through the dos and don’ts of sampling.

Q: I have a song on SoundCloud that uses a sample that I recorded from a documentary on TV, can I get sued?

A: The answer is simple, and that answer  is “yes”.

Generally speaking, if you want to take someone else’s copyrighted work and include it in your own, you need their consent to do so.

You don’t need consent if you use an insubstantial part of the work – but this is a qualitative, rather than quantitative calculation – whenever anyone tells you that you can use 5 seconds or 12 second or 8% without clearing it, they’re wrong. As a rule of thumb, if people can recognise it, you’ll need to clear it.

It doesn’t matter that you can’t find the owner, it doesn’t matter that you are not making money from the use – you need to find the owner, and ask the owner, and get their consent. And if you can’t or don’t want to do these things, you should not use the sample.

Of course, many artists don’t work this way: many artists use whatever they wish and figure that if anyone gets in touch, they will just remove the sample, or take down the song, or give the owner a small amount of money. Practically, this may work – the owner may never hear the new song (here, your obscurity is your friend), they may hear it and not care, or they may hear it and be amenable to simply working out a reasonable commercial resolution. Also, even if they can’t work it out with you, suing you will be expensive, time consuming and you may not have the money to make this worthwhile. Many artists are lucky in this regard, and you might be one of them.

But sometimes, practicalities are irrelevant – the owner may hear your work, be outraged that their property has been used without consent or just hate the song and be determined to cause you pain for your insolence. The may have lots of money, and be happy to spend some, just to prove a point.

You never know and so, when you decide to use copyright works without consent, that’s the risk you take. So, you need to understand this, determine what your appetite for risk is, and act accordingly.

You hope to be successful and, if you take the risk and use a work without consent, the more success you have, the more people will hear it and the more attractive you become as a target for legal action. You become worth the effort and the expense of being sued. Also: forget the idea that you are the only one who will recognise the obscure sample you have chosen. If it is heard by enough people, someone will ALWAYS recognise it.

Hopefully this makes the position a little clearer. Happy sampling!

Oaten established his legal practice during the grunge era, and specialises in music and other entertainment matters. In the music industry Oaten principally represents artists and some current clients include 360, Angus & Julia Stone, Empire Of The Sun, Lorde, and Troye Sivan. Oaten is also a founding board member and life member of FBi Radio.

Submit your questions to [email protected] or tweet them at us: @themusicnetwork

To read more about Brett Oaten and to get in contact, visit his firm’s official website brettoaten.com.au. Oaten tweets at: @brettoaten