Harlem Shake contains samples without permission
By Mauritz Kop LL.M.
1. Harlem Shake
The Harlem Shake by producer and writer Baauer features unlicensed samples. These uncleared samples belong to reggaeton artist Hector Delgado and rapper Jayson Musson. Considering that the Harlem Shake has been a viral number 1 hit on charts all around the world this copyright infringement could cost Baauer and his label Mad Decent dearly. The uncleared samples form a central part of the song, and Delgado and Musson are seeking compensation. Using the samples without permission illustrates the ignorance that still exists regarding copyrights and sample clearance in the dance music community.
2. Sample Clearance
Whenever you use samples in your commercial productions you’ll need permission from the copyright owners.
If you plan to sample music from a commercial pop recording, you’ll need permission from the copyright owner of the song (the underlying musical work) – usually the music publisher. You’ll also need permission from the owner of the master tapes (the recording itself) – usually the record company. Obtaining licenses to use samples has become standard practice in the music industry.
Practically, this means you’ll need a Sample License. A Sample License is a species of genus (a form of) Master Use License. In case you use a sample from a sample CD make sure you bought a license. No permission is needed when using sound recordings that are in the public domain.
However, an active intellectual property right can exist on the sound recording of a musical composition that belongs to the public domain (mostly older classical works and folk songs) and a license is needed! There can be at least 2 copyrights: 1 on the recording and 1 on the underlying musical composition/arrangement.
Courts sometimes dismiss copyright infringements for reasons of insignificance (de minimus, Newton vs Diamond case), but the US appeals court explicitly declined to recognize a de minimus standard for digital sampling in the Bridgeport Music vs Dimension Films case, thus protecting the copyrightholder of the sound recording. This means even a short sample entitles the copyrightholder (the artists who’s samples are used and/or his label) to royalties. The amount to pay is negotiable.
Courts do acknowledge copyright infringements when using more then 5-7 recognizable notes from an underlying musical composition’s melody. In this case, using only 2 or 3 notes would probably a de minimus in the eyes of most courts (Newton vs Diamond case). To use a particular song’s melody in an original composition or in a cover song, one would need a Mechanical License (Harry Fox Agency). Exceptions on this rule are faire use and parody. The publishing fees are negotiable.
3. The Verve / Rolling Stones, Toto / Sanchez and MC Hammer / Rick James
Battles over uncleared samples have found their way into courtrooms before. Another famous example of using samples without the correct license is The Verve’s ‘’Bitter Sweet Symphony’’. Richard Ashcroft had to relinquish 100% of the publishing (songwriter’s copyright) to the Rolling Stones after using a sample from an orchestral cover from the Rolling Stones’ song ‘’The Last Time’’. The Verve had obtained a license from Andrew Loog Oldham c.s. to use samples from the cover, but no permission from the Rolling Stones (being the worldcopyrightholders of the underlying musical work)!
Toto’s singer-songwriter Steve Lukather found out that a sample from his song ‘’I Won’t Hold You Back’’ had been used without his permission by Sanchez (Spinnin’ Records) in his electronic dance hit ‘’Another Chance’’. They settled by Lukather getting 90% of the collected royalties of the copyright infringing song.
Twenty years ago the fair use doctrine / parody exception still protected 2 Live Crew from copyright infringement of Roy Orbinson’s ‘’Pretty Woman’’ (Campbell vs Acuff-Rose Music).
Later on the courts moved away from this decision and MC Hammer was forced to pay a six figure number to Rick James because he used unlicensed samples from “Super Freak’’ in his song “U Can’t Touch This.”
4. Clear your stuff or pay later!
Most recording and publishing agreements require the songwriter, artist and producer to report if they have used non-royalty free samples in a recording, so that the label and the publisher can make sure it is properly licensed (‘’cleared’’) before the release date and everything can go on as scheduled. But indie labels, like Mad Decent, usually don’t have a legal department and lack the financial resources to have a team of lawyers look at releases. Instead they rely on producers to make sure recordings are free of copyright problems and sign agreements making sure they don’t use any uncleared samples.
Negotiation-wise, not having obtained a Sample License beforehand is a distinct disadvantage the moment a song becomes a hit, like the Harlem Shake. Before a song is released, the producer that uses the uncleared sample can always threaten to take it off the recording or replace it, in case the copyright owner asks an unreasonably high license fee. Later on this is not an option so: clear your stuff or pay later!
Contact us or visit our website for more information about sample clearance.