DISCLAIMER: this article may not tell you what you want to hear, but it might shed light on what you need to hear.
Now that we have that out the way, lets be clear on this from the jump – there is no complete and absolute rule under US law that you can sample someone else’s music for free and without clearance if it’s only “six bars,” “six seconds,” “five seconds,” “five bars” or any other number.
I know that statement probably shatters many myths you might be holding about music sampling, and you may not want to believe what I am saying, so I’m actually going to repeat it one more time so that it can sink in:
There is no complete and absolute rule under US law that you can sample someone else’s music for free and without clearance if it’s only ‘six bars,’ ‘six seconds,’ ‘five seconds,’ ‘five bars’ –or any other number.
That said, there is a tiny (microscopic-tiny) grain of truth to the “6 bar” sample myth, but it has been painfully and horribly distorted over the years to the detriment of many sample-happy producers who have held onto the misguided belief that the “6 bar” myth is absolute. Let’s try to sort through the confusion.
What is sampling, and what’s the legal way to sample someone else’s music?
Sampling as many of you know, is a music production technique that grew largely out of early hip-hop DJ culture, specifically the practice of looping breaks and cutting in tracks during a DJ mix. This DJ method evolved into the music production practice of using previously-created music from a third party into the production of a new music track.
If you plan on sampling a recorded piece of music, there are two separate copyrights within the music you need to negotiate permissions for (or “clear” as the industry likes to call it) in order to approach things legally. These two copyrights are the composition copyright (typically owned or controlled by an artist’s music publisher) and the sound recording copyright (typically owned or controlled by an artist’s record label). The challenge involved in sample clearance (particularly for obscure pieces of music you may want to sample) are figuring out who the right parties are to get clearance from, and negotiating a good deal with the rights owners. You don’t necessarily need an attorney to clear music for sampling, but it certainly can help to have a music attorney navigate these often muddy and difficult to navigate waters.
But if I don’t “sell” the sampled music track I make, and I just put it up on soundcloud or youtube or otherwise post it to the internet for free streams or downloads, it’s legally OK for me to do that without clearance, right?
Sorry folks, but the answer is: No.
Technically, under the copyright law, you are engaging in copyright infringement even if you sample someone’s music without clearance or other licensing and distribute it/post it online for free. There are 6 rights under the copyright law that only the owner of the copyright has the exclusive rights to engage in. Those six rights are the right to distribute, reproduce, display, publicly perform, make derivatives of, and digitally transmit (for sound recordings) a copyright. If you’re not the owner of the copyright, and you don’t have a permission (license) to do any of those six rights from the copyright owner, then you are not allowed to engage in any of those six rights of someone else’s copyright. Yes, there are some copyright owners that may not bother to pursue any action or claim against you if you sample their music without clearance and distribute it for free, but they certainly have the legal right to stop or sue you–and you should never expect that it can’t or won’t happen to you.
So where did this 6 second or 6 bar myth come from?
One of the first big music sampling lawsuits involved Biz Markie in 1991 over his use of a sample in a track called “Alone Again.” A defense to the sampling in that lawsuit was that “stealing is rampant in the music industry, and for that reason… (the sampling) conduct should be excused.” Biz’s label lost this lawsuit because the court rejected this defense and actually cited the ten commandments, stating that “thou shall not steal” and showed little sympathy for people who engage in illegal music sampling.