Music Copyright Law: Comprehensive Guide to Sampling

Mastering Music Copyright Laws - A Guide to Using Samples in Music
Mastering Music Copyright Laws - A Guide to Using Samples in Music

Navigating Music Copyright Law when Sampling

You have found a sample that you’re keen to use in your next track – but can you use it without permission?

While you’re in the midst of producing tracks, the complexities of copyright law might not be your first thought but the basics of copyright law are an important lesson for any music producer. This is especially true if your creative process involves inspiration from artists.

In this article, we will dive into the fundamentals of music copyright law including how long music copyright protections last and how to use copyright-protected music in a legal and ethical manner.

Key Points to Note

  • In the UK, music copyright ‘subsists’ which means that it automatically protects a piece of music upon creation. It does not require a separate application. This protection covers literary and musical works, as well as sound recordings and films. 

  • The individual who creates the music is the copyright ‘owner’. Depending on the music’s nature, this could be one person, a company, or a group of collaborators.

  • The duration of copyright protection varies based on the type of music. In most cases, the duration will depend on the death of the owner.

  • When using samples, you will rarely avoid copyright infringement unless specific conditions are met. It is recommended that you always seek permission from the owner and obtain a proper licence.

What is Music Copyright and How Does it Protect Your Music? 

In the UK, music copyright is governed by the Copyright Designs and Patents Act 1988 as well as some EU regulations retained by the UK following Brexit. But what exactly is copyright, and how does it apply to different types of musical expression?

To benefit from music copyright protection, there is no need to register your music or make an application. Music copyright automatically materialises once the music comes into existence. There are four distinct types of musical works that copyright protects: 

  1. Original literary works: written, spoken, or sung content, including song lyrics;

  1. Original musical works: the musical composition itself, such as the melody, exclusive of sung words or action;

  1. Original sound recordings: the recording of a sound regardless of the method of recording. Though, copyright will not apply to a copy of a sound recording that has already been recorded; and

  1. Original films: a recording of any type of moving image. Film soundtracks might be included in the film’s copyright except when they are played independently without the accompanying images – in such cases, the soundtrack is protected as a sound recording.

It is important to determine which type of musical work you are dealing with as this will inform the duration of the copyright.

Ownership of Music Copyright

It will be no surprise that the individual or company responsible for creating the work is the author and it is the author who holds the ownership rights. For instance, this could be the producer of a sound recording or the producer and main director of a film.

Of course, in music production, the producer is the author of the music and the owner of music copyright protection. 

However, to be eligible for copyright protection in the UK, the author must fulfill certain criteria. This includes being a UK citizen, being domiciled or residing in the UK at the time of creating the work or having the work published in the UK.

In cases where multiple individuals or companies contribute to the creation of a work, the music copyright may have joint owners.

Duration of Music Copyright Protection

In some cases, music copyright protection might be due to expire. Particularly when you are using samples from older music.

Calculating the duration of the music copyright protection can be quite technical as the duration varies depending on the nature of the musical work:

  1. For literary or musical works, the protection lasts for the lifetime of the author plus 70 years from the end of the calendar year in which the author passes away. In the case of joint authors, music copyright lasts for 70 years from the end of the calendar year in which the last known author dies.

  1. Unpublished sound recordings are protected for 50 years from the end of the calendar year in which the work is created.

  1. Published sound recordings or those played in public are protected for 70 years from the end of the calendar year in which the work is first published or played.

  1. Films enjoy music copyright protection for 70 years from the end of the calendar year in which the last of the ‘specified persons’ involved in the film’s creation passes away. These ‘specified persons’ include the principal director, author of the screenplay, author of the dialogue, and composer of the music specifically created for and used in the film.

The rules on music copyright duration can be quite tricky to get your head around so it is important to consult an intellectual property lawyer if you are thinking of sampling copyright-protected music that might be due to expire soon. 

Avoiding Music Copyright Infringement

So, now that you know who owns the music copyright and how long – how does it protect the owner and how can you avoid infringing copyright laws?

It is only fair that the person who created a piece of music gets to enjoy all of the benefits of their music without the interference of others. The key is in the name – the purpose of music copyright is to protect the owner from having their work copied, sold, or hired out to others. 

There are certain acts that breach music copyright protections – these are called infringements. Most of them are obvious and do not need to be done deliberately – these are called ‘primary infringements’. For example, selling or renting copies of music to the public, or performing or showcasing a creation to the public in some way.

Less obvious infringing acts require some level of knowledge or intention – these are called ‘secondary infringements’. Examples of secondary infringements include importing music into the UK, possessing a piece of music for business purposes, selling, leasing, or distributing music to an extent that negatively affects the owner.

You should also be cautious when it comes to live films or music. If you supply apparatus, hire out venues, or supply the recording or film that is played, you could be in breach of music copyright protections. If you are unsure, make sure to consult an intellectual property expert. 

The Limited-Use Myth

It is often said that you can use brief snippets of, say, 10, 15, or 20 seconds of a sample without infringing music copyright protections. This is not strictly true. 

It is true that you must have used a ‘substantial part’ of a work for the act to be considered an infringement. However, a ‘substantial part’ is judged, not by the length of the sample, but by its quality i.e. is the sample distinctly identifiable? Is it clear which musical work the sample comes from?

The only way to use a sample without permission is if you have accidentally and incidentally used that in your music but this cannot be done deliberately, or if you have quoted the author and the quote is accompanied by a sufficient acknowledgment. Quoting is very difficult to do in music and is judged on a case-by-case basis. 

Penalties for Music Copyright Infringement

Whilst the music industry does not provide a fixed fine for music copyright infringement that owners can impose, platforms like YouTube will undoubtedly have copyright provisions in their terms and conditions that include penalties for copyright infringement.

However, infringing music copyright protections exposes you to potential legal action. The owner has the option to pursue an infringer for damages (monetary relief) or seek injunctive relief to prevent you from using their copyright-protected music. 

You might think that legal action is unlikely if you have not profited from the infringement. Yet, damages are calculated on the basis of the owner’s loss i.e. what has the owner lost as a result of your infringement? Quantifying damages can be difficult at the outset and they are assessed on a case-by-case basis. 

In instances of joint ownership, complexities may arise when one of the owners wishes to use the music for other purposes. It has been known for one owner to pursue the other for using the work without proper authorisation.

Defending intellectual property litigation is costly and time-consuming meaning that it should be avoided wherever possible. 

Music Copyright Licences: Always Seek Permission 

It is easy to infringe music copyright protections when using samples and it can be costly if the owner chooses to enforce their music copyright protections.  So, how do you use music samples legally and ethically? 

You should always seek the permission of the music copyright owner. If the owner grants permission, they will usually provide a licence that outlines the parameters for the use of the sample i.e. how much of the sample you can use, for how long, and for what purpose. 

By obtaining a license, you gain the express authority to use copyrighted music in your own work, granting you the freedom to explore your artistic ideas without the risk of intellectual property litigation.

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Bethany Smith
Seasoned commercial lawyer and Legal Editor, Bethany is committed to bringing invaluable legal insights to the next generation of music pioneers. Over 7 years' experience in the legal industry, Bethany is educating 122BPM readers on the legal aspects of music production.
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