The Use of Sampling in Hip-hop and Its Legal Implications
Sampling raises legal questions around copyright infringement, we take a look at it's use in Hip Hop.

If you're a hip-hop fan, you've heard Kendrick Lamar's Loyalty. It's one of the biggest hip-hop songs of the last few years, and for good reason. It is an awesome song. Great rapping and a fire beat to go with it. What you might not know, however, is that the opening of the song is a sample from another great song, 24K Magic by Bruno Mars.

Sampling is a huge part of hip-hop. It started free for all, but copyright laws have placed restrictions. That hasn't stopped many rappers, though, with some paying top dollar to use samples in their records. Danny Brown, for example, once said he went into debt after spending $70,000 on samples for his album, Atrocity Exhibition. Yes, you read that right. He spent seventy thousand dollars on samples!

Samples are a big deal in hip-hop and would be more common if not for the copyright laws. I'd like to talk about these laws and what artists have to go through to get a sample.

Before Copyright Laws

Before the days of copyright laws, record sampling was the norm of the day for hip-hop artists. It all started in the early 1970s with New York DJs like Grandmaster Flash and Kool DJ Herc. These DJs found a way to mix a part of a song into another instrumental to make their party experiences better.

By the early 80s, artists figured they could add parts of older songs into their records, and sampling spread across hip-hop like wildfire. Paul's Boutique, an album by the Beastie Boys, is a prime example of record sampling. There are hundreds of samples layered throughout this album. Yes, hundreds!

That all changed in 1991 when Gilbert O'Sullivan sued Biz Markie for using a sample from his song, Alone Again. It was in that case, Grand Upright Music Ltd. vs Warner Bros Records, Inc., that copyright laws were born. Record sampling was no longer free for all.

After Copyright Laws

In today's world, it's illegal to use a sample in your record without legal permission from the official owner. Grandmaster Flash might balk at the idea of having to ask for permission to use a sample, but that's the reality for you as an artist today.

De La Soul, a rap group, once got sued for using an uncleared sample in their album called 3 Feet High and Rising. The plaintiffs, Howard Kaylan and Mark Volman won a payout that has been rumored to reach $1.7 million. If that doesn't scare you, what a maverick you are!

Tips on Avoiding Legal Issues with Sampling

The good news for non-mavericks like me is that copyright laws are much clearer today, and there are definite steps you can take to avoid any legal trouble. Some would rather play safe and just stay away from samples, but all you really need to do is stick to the rules. Here are some tips to help you out...

Apply early

Don't wait until the last minute to clear the sample you intend to use. It's important to make contact early so that you can clear up everything that needs to be cleared well before your release date. Anything could happen to change your plans and you need enough time to respond appropriately. For example, your request might get turned down so that you can't use the sample anymore. That means you need to find a new sample to put in. Applying early helps you anticipate all these and gives you enough time to deal with any fires.

Do your research

What part of the song would you like to sample? How long is it? Will you use it as it is or put a twist on it? These are all questions you need to answer before reaching out to anybody for permission. You also need to figure out exactly what legal steps you need to take. You might even need to hire a lawyer.

Identify the real owners

It could be an artist or a record label, but it's important to know who you're getting permission from. You need two different copyrights to clear up. Firstly, you need to clear the song composition, and secondly, the master recording. You need to know who to approach for each of these.

What if they say no?

Now, this is an interesting situation. What happens if you ask politely but get turned down? Well, you have two options. The first option is to let it go and move on. You did your best, but now it's time to find another song to sample. It might help to have more than one option ready in case this happens. Letting it go is the safe play, but you might be a maverick.

If you choose to be a maverick and go ahead to use the sample, get ready for war. There are two possible defenses you can use, 'fair use' or 'de minimis use'. Fair use usually applies to satires or parodies and argues that some copying isn't theft but serves a good purpose such as education or commentary. De minimis use argues that the copied part is so little that it can be ignored, but there's no clear line to define it.

You might also get lucky and enjoy what people in the music industry call the Girl Talk Paradox. It's so named after Greg Gillis, rap name Girl Talk. He is the ultimate maverick, with several unlicensed samples in his songs. Amazingly, he's never been sued in an incredible run of luck or whatever that has been termed the Girl Talk Paradox. This is NOT what I advise you to do.

Final Thoughts

Record sampling is no longer a free-for-all practice in hip-hop, but there are still several rappers who do it. To avoid any legal issues, it's necessary to clear a sample by receiving permission from the original creators. You can be a maverick, but my advice is to follow the rules and avoid any complications. The good news is that the rules are clearer than ever today, so there's less chance of any complications if you do things right.