WHY YOU NEED A LICENSE
I’ve been doing music clearances for going on 20 years, and the main thing I’ve noticed along the way is that many young artists have no idea what they are or how they work. It’s not their fault; it’s confusing! However, without the proper clearances, musicians who use samples in their work could find their songs or albums pulled from streaming services and stores. And in the end, they could end up paying much more to settle a dispute than they originally would have to clear a sample legally. Copyright infringement lawsuits are no joke — by law, it could be as much as $150,000 per sample, per copy of the song distributed.
First, if you are sampling someone else’s music in your song, then you need to get a license — no ifs, ands, or buts about it. There is a lot of misinformation floating around out there about “fair use,” particularly regarding the length of a sample, how transformative the use is, and whether you are making any money off of it. The fact of the matter is that fair use only works for song parodies. So, unless you’re the next Weird Al, you need to get your samples cleared before you can release your music (and P.S., Weird Al gets permission for his parody songs, too).
Here’s how the process typically works at my company, DMG Clearances Inc. Artists send me a copy of their original track and a list of all the songs sampled in it, as well as how much of each song is used. I then do research to find who controls the publishing and master copyrights. The publishing side covers the underlying composition and is typically owned by the songwriter or their publishing company, while the master side covers a specific recording of a song and is typically owned by the recording artist’s record label. You must get approval from both sides.
HOW NEGOTIATIONS WORK
Once I’ve located the rights-holders, I send them a request letter along with a copy of the song containing the sample. If they approve, they send me a quote, usually consisting of a one-time fee and an ongoing royalty arrangement. On the publishing side, those royalties take the form of a percentage of ownership in the new song. On the master side, they are a percentage of revenue earned from the recording of the new song. Publishing fees usually fall in the $1,500-$2,500 range, and master fees can be anywhere from $1,500 to $10,000; it all depends on the rights-holders.
I then send the quotes back to the artist of the new song, who can agree to the terms or make a counter offer. Once the negotiation is complete, I send official confirmation letters to the rights-holders detailing the terms, get release and billing information from the artist of the new song, and then send license request letters to the rights-holders. Once the licenses are signed by all parties and all payments have been made, the clearance is complete. All in all, this process can take anywhere from one day to over one year.
I know that sounds like a lot, and probably far more expensive than you were thinking. However, there are a few things you can do to ease the process.
1.) Start the clearance process as soon as possible.
Sample clearance is a daunting task — from finding the proper rights-holders, to getting their attention with your request, to negotiating a good fee and royalty rate. You don’t want to leave this hanging until the last minute, especially since the original rights-holders have the ability to say no entirely, scuttling your vision. It’s a key difference from licensing a cover song, where the original rights-holders are required to license your version provided you pay them a compulsory royalty rate set by the government.
2.) Don’t beat yourself up if it doesn’t work out.
Some sample clearance issues just can’t be foreseen. For example, look at what happened to indie rock band Car Seat Headrest back in 2016. After the band’s label obtained what it thought was a proper license to sample The Cars’ “Just What I Needed” months in advance of the release date, it was discovered at the last minute that the publisher did not actually have the right to approve the use in the United States. After The Cars’ lead singer and songwriter Ric Ocasek decided not to approve the sample, the label was forced to recall and destroy physical copies of Car Seat Headrest’s record, and the band had to write a new song to take its place without the sample. In the end, the album was released on-time digitally, with lead singer and songwriter Will Toledo stating, “I think it’s a stronger song now.” The moral: some things can’t be helped, so soldier on and stay creative!
3.) Take advantage of new technology.
If you’re an independent artist, the scope and cost of the sample clearance process is intensely daunting. Luckily, there are music services online that can help. For example, I just signed on as a Partner at music sample clearance service Tracklib, which offers a library of over 65,000 full songs by popular artists that have all been pre-cleared for sampling. Getting down to brass tacks, that means you can find a song to sample, download a high-quality WAV to work with, and then license your new song for as little as $50 and a 2% royalty share.
I hope this is helpful to all you aspiring producers and DJs out there. Feel free to reach out to me at DMG Clearances Inc. with any clearance requests you may have, and remember, it’s always better to be safe than sorry.
ABOUT THE AUTHOR
Deborah Mannis-Gardner is the go-to expert for global music rights clearances, whether for samples for recordings; song usage in movies, television, and video games; or innovative applications such as the history of hip-hop Google Doodle. After working for Diamond Time and RCA Records in the early 1990s, Deborah started DMG Clearances, Inc., in 1996, based out of Delaware. Her sample clearance skills quickly became legendary, and she has cleared releases for artists including Frank Ocean, Jay-Z, Macklemore, DJ Khaled, Kendrick Lamar, John Legend, Black Eyed Peas, Drake, Lil Wayne, Lady Gaga, Eminem, Rihanna, The Notorious B.I.G., U2, Nicki Minaj, Mariah Carey, Yelawolf, and Beyoncé.
She also handled Grands Rights clearance for Lin-Manuel Miranda’s Broadway sensation “Hamilton” and film music clearances for Martin Scorsese’s “The Aviator”; Curtis Hanson’s “8 Mile,” “In Her Shoes,” and “Lucky You”; The Coen Brothers’ “O Brother, Where Art Thou?”; Richard Linklater’s “School of Rock”; and Josh Fox’s “How to Let Go of the World and Love All the Things Climate Can’t Change.”
In February 2018, she was announced as a partner and advisor to the Swedish digital music startup Tracklib. She has spoken at SXSW, CMJ, the Nashville Film Festival, and SyncSummit Nashville, as well as at Temple University and Widener College. She was also named 2016 Entrepreneurial Woman of the Year by the New Castle County Chamber of Commerce (NCCCC) in Delaware.