What exactly is sampling and at what point does it become illegal?
Sampling is the process of taking a piece of music, whether an instrumental riff or a vocal line, and using it in your own compositions. Some people might insist that the act of sampling is entirely legal under the fair-use doctrine. Others might contend, under the same doctrine, that there is a predetermined limit of how much you can sample from a work, such as four notes or three seconds of a song. In reality, you cannot sample a song at all without the permission of the song’s copyright owner (i.e. the songwriter or music publishing company). Additionally, licensing is required if the sample is at a “level of legally cognizable appropriation” or as long as the sample would not be considered de minimis, i.e. of minimal infringement. In some cases you might need the permission of the sound recording copyright holder, generally the record label. In return for permission to use the sample, the copyright owner(s) would be paid a sampling license fee, which can vary greatly depending on how much of the song you want to use and how successful that song has been. Fees are typically paid in one of two ways: A flat-fee buyout or by agreeing to give a percent of the mechanical royalty rate of your new work.
Generally speaking, sampling is a violation of copyright law. Recent court decisions have ruled that even the de minimis defense does not protect samplers from copyright infringement. In sum, sampling becomes illegal when, for commercial use (not a non-commercial “fair use”), the sample is used without the copyright owner’s permission.
by Gian Marco Fanelli