Despite its deep roots in musical tradition, covering and sampling other artists’ work can be a sticky topic. Some songwriters draw inspiration from existing songs and sounds, while others prefer a more traditional approach to songwriting.
Conceptually speaking, covering and sampling could be treated as two sides of the same coin: they both describe the use of pre-existing material, covers, involving the intellectual use, are the reinterpretation of an existing composition and sampling, involving the literal use, is the use of actual sounds from a recording in a new context. However legally, the ramifications for songwriters and music creators are entirely different. In this article, we’re going to treat them as two related but distinct subjects.
By the end, you should have a clear understanding of how copyright law handles covers and samples, and how this might affect your publishing royalties. While some artists will never cover another songwriter’s work or employ any preexisting music, it’s a common practice. It’s important that you know the upsides and downsides of covering and sampling before you start building sample-based tracks, or recording cover versions of existing songs.
On Covers: Covering the Bases
“As a songwriter, you have an umbilical cord to the song and it's hard to expand on your understanding of the lyrics. Whereas when you cover a song, you can create your own reason why you're attached to it.” - k.d. lang
While some steer clear of using covers in their songs, for many others, covers are an emotional mainline back to a moment or an experience, a way to touch on the eternally regenerating creative current that powers all songwriters and artists. As Ms. Lang so succinctly expressed, they’re a way of reframing what’s been said before through the lens of your own experience.
Covers & Licenses
Because the very notion of covering songs has such a well-established history, the legal procedure is fairly straightforward. If you want to record and release (specifically for physical or download releases) a cover song that doesn't fundamentally change the lyrics or melody of the original composition, you first need to obtain a mechanical license from the owners of that composition. Luckily, this license is compulsory in the U.S. In other words, the composition rights-holder doesn’t have the option of rejecting a cover license. If you merely want to perform someone else’s work in a live setting, you needn’t obtain a license; it’s the owner of the performance space’s obligation to purchase a blanket performance license for the venue.
To obtain a license to record and release another creator’s work, you’ll most likely go through the music publisher, directly to the owner of the composition, or a third party, such as the Harry Fox Agency or Easy Song Licensing in the U.S. You can also search for the publisher in the databases of collection societies.
Alternatively, you can apply directly with the U.S. Copyright Office for a compulsory license through a formal Notice of Intention procedure. However, most people tend to go through the publisher or a third-party licensing agency instead.
Another important note: for interactive streams on platforms like Spotify and Apple Music, the rate calculation is much more complex, as officially outlined by the U.S. Copyright Royalty Board. However, in the U.S., the streaming mechanical licenses are typically acquired by the platforms themselves. Spotify, for example, uses HFA (the Harry Fox Agency), a mechanical licensing agency, to acquire the necessary mechanical licenses.
Why Do I Need a License?
As the name might suggest, the term “mechanical license” refers to a physical reproduction of music. This dates back to the 19th century, when sheet music publishers believed that the performance of the perforated rolls of paper used by automated pianos violated copyright law. Though they initially lost the case, lobbyists for the music industry successfully petitioned Congress to enact the Copyright Act of 1909. Since then, it has been continually updated to reflect current technology.
Another way that mechanical licenses are unique is that they cover a specific number of copies of the song, whether they’re physical items, like vinyl records, or digital downloads. In other words, when you apply to the publisher for the mechanical license to a particular song, you’ll obtain the licenses in set increments (such as 100 or 1000). In the United States, you may be compelled to obtain and pay for the mechanical license up front; elsewhere in the world, it’s typically only paid upon purchase or download of the song.
And regardless of how popular the song you’re covering is, the rate you pay per license doesn’t change when it comes to digital downloads and physical reproductions in the United States. The current statutory mechanical royalty rate in the U.S. for physical recordings (such as CDs and vinyl records) and permanent digital downloads is 9.1¢ for recordings of a song five minutes or less, and 1.75¢ per minute (or fraction thereof) for those over five minutes.
That’s good news for those of us drawn to covering. Remember: Regardless of whether you sell, give away, or completely forget about your version of the song, you’ll need to obtain a mechanical license for each copy, plus whatever service or administrative fee the publisher may charge you.
Final Thoughts on Covers
One more word of advice: While some licensing agencies promise turnaround times of a business day or two, it’s sometimes not that simple. Bart Day, a longtime Pacific Northwest attorney specializing in music law, has this to say:
“This is important: Don’t wait until the last minute before your record release! It can take some time to get the necessary documents signed, especially if you need to deal directly with the music publisher. And mechanical license documents often require that the credits read in a certain specified way, and you’ll need to know what that text is so that you can have it printed correctly in your artwork for the record.”
Bart’s website, Bart Day Law, provides a wealth of information on music law, including more detailed information on recording cover songs.
A Sample of Sampling Law
“Listening to the stuff on the radio today, you'd think rap is one big sample. That's an insult to all of us who've been here from the beginning….Be creative - learn the craft. Don't just throw something out there over somebody else's beat. Some of us work hard to make the art form something people can respect.” - Dr. Dre
While it has a much shorter backstory, sampling—or the use of sections of another artist’s actual recording—it is part of all mainstream and underground music forms today. While some artists steer clear of using samples, others lean on these creative tools as second nature.
Whatever your take on using samples, we’ll start by getting the bad news out of the way first: It’s much more difficult to get clearance for samples than it is to obtain mechanical licenses for covers.
Unlike cover songs, licenses for samples of sound recordings aren’t compulsory, meaning that the rights holders can refuse to clear the sample outright, or demand a significant advance and/or a percentage of sales. Did you catch the words “rights holders”? In order to legally use a sample from a copyrighted song in your own music, you need not one, but two different licenses.
One is for the use of the master recording (which is often owned by a record label or by the original artist). The other is for the usage of the underlying composition, which—like in the example of cover songs—is controlled by the publisher or songwriter.
As with cover songs, in order to clear a sample usage, you’ll need to contact the publisher of the original composition and reach an agreement. You’ll also need to find the owner of the master recording, which can be difficult, especially as record labels, both major and independent, can fold or change ownership throughout the years.
There are exceptions, for example, the copyright on the original work has expired and not been renewed, and some artists and labels actively encourage sampling. There are also new companies, like TrackLib, that are advocating for making samples easier to obtain. Some producers will even actively promote sample packages for you to buy and use. But on the whole? Getting clearance is often difficult, time-consuming, and expensive.
When You Fight the Law and the Law Wins
With a legal landscape this challenging, it’s no wonder some artists routinely flout copyright laws by incorporating uncleared samples. Naturally, we don’t recommend or condone such practices, but we can’t deny that they occur.
Results can be mixed. Yes, many samples go unnoticed, either because they’re sufficiently altered to defy recognition, or because the artist using them lacks the wide recognition to merit legal notice.
That said, hoping your music won’t be popular enough to attract the attention of producers and record labels is counterintuitive. British band the Verve learned this the hard way, when they were obliged to forfeit all of the royalties for their platinum-selling 1997 single “Bittersweet Symphony” because it incorporated an uncleared Rolling Stones sample. (The Rolling Stones magnanimously handed over their publishing rights to “Bittersweet Symphony” in 2019, though at that point most of the publishing royalties had already been earned.)
And choosing covers—or too many of them—entails risks as well. Soft Cell’s version of Gloria Jones’ “Tainted Love” was a worldwide smash, and the top-selling single in the UK in 1981. Unfortunately, the band chose another cover, the Supremes' "Where Did Our Love Go,” as the single’s b-side, guaranteeing they would earn nothing in songwriting or publishing royalties from record sales.
Whichever route you decide to take, our hope is that you base your decision whether or not to cover or sample other artists’ work upon a solid understanding of the legal implications. We want you to find your inspiration, follow your muse, and sing to your heart’s content. We just want you to do it legally.
Important Songtrust Information:
We can't provide legal advice, but we can urge as best practices that clients follow proper procedure and include the licensing agreement for shares when registering their songs. If you register a song on our platform that contains a sample that hasn't been properly cleared, you're liable for any legal repercussions.
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