Entertainment Law Series, Vol. 1: The Popularity of Derivative Music
I came across a Twitter account called Songs and Samples the other day. This account edits and posts videos that gives you a side by side listen to a modern hit next to its sample. After a few minutes, I could not stop thinking about derivative songs and their overwhelming popularity. So many modern-day hits are in some way a derivative work of another.
When a musician uses a snippet (sample) of another’s song to create a new song, the new song is a "derivative work" of the previous song. The Copyright Act, 17 U.S. Code § 101, defines a derivative work as a "work based upon one or more preexisting works." This includes musical arrangements, sound recordings, abridgments, condensations, or any other form in which a work may be recast, transformed, or adapted. The derivative work becomes a separate work independent of the first. Unless the song sampled is in the public domain, an artist that wants to include a sample of another sound recording in a new recording requires a "sample license" from the sound recording's owner, usually the record label.
The sample license grants the rights to reproduce, distribute, and create a derivative work of the sound recording. The artist or label also requires a corresponding sample or mechanical license of the composition embodied in the sound recording.
The 2005 mega hit "Diamonds from Sierra Leone" by Kanye West sampled Shirley Bassey's 1971 song "Diamonds are Forever."
These licenses can also be used to create interpolations. Interpolations, aka replayed samples, refers to using a whole, or partial, melody, often with different lyrics, from a previously recorded song but re-recording the melody instead of sampling it. For example, Frank Ocean's "White Ferrari" is an interpolation of The Beatles "Here, There and Everywhere."
Unlike some other licenses, sample licenses are perpetual. Meaning that the sample can be used with that project. If the song changes again, the licensee will need to seek another license.
Creating derivative works are a great way for artists to pay homage to the past while continuing to push modern music forward. Another added benefit is that the original artist can make a little more money off a song that may not be as hot anymore.
No one more highlighted the love for samples, like Tory Lanez on his 2019 mixtape “Chixtape 5.” This nostalgic mixtape had samples from Jagged Edge, T-Pain, Chris Brown, The-Dream, Mýa, Ashanti, Trey Songz, Lil Wayne, Fabolous and more. The interesting thing about this tape is that Lanez asked the original artists to feature on a sample of an adaptation of their own songs making the tape unique. It was very ambitious, and it paid off.
As the use of samples have become commonplace, it is important for producers to understand the intricacies of getting clearance to use another’s sound recording. It is always best to contact an experienced entertainment lawyer when reviewing, drafting, and negotiating sample licenses to ensure you can legally use the sample for its intended purposes in an agreement that works best for you. Send me an email at Rolanzo@wro-law.com if you have any music licensing questions or issues that you think I could help with. Please note, I do not hold the copyright to the images or music in this blog. I am using these pieces of media under the fair use exception.