Coming up with original music can be incredibly challenging, which is why artists are always searching for inspiration. Whether you get that inspiration from the world around you and everyday life situations, or whether you get your ideas through introspection and self-reflection, it doesn’t matter - whatever sparks your creativity.
Many artists get inspired when listening to other musicians. That’s how people become artists, after all, growing up listening to music and getting influenced by other singers or musicians they love and admire. In some cases, if you listen carefully, you can even hear it; for instance, listening to Amy Winehouse, you can hear faint traces of Billie Holiday or Sarah Vaughan. The style and the vocals are reminiscent of these old-school legends, without feeling forced or copied. But sometimes that inspiration is a little more obvious.
As an artist nowadays, you can pay homage to a favorite song, singer, instrumentalist, or composer through your own music. However, you’re going to have to be careful and consider copyright laws, and ‘clear’ any music samples you use in your own work. But what does it mean to clear a music sample? How can you avoid falling into the same kind of trouble that Pharrell and Robin Thicke did in 2013?
Why giving credit is important
You might already be familiar with the five-year-long lawsuit between Pharrell and Robin Thicke and the Marvin Gaye estate. The duo was sued for copying Marvin Gaye’s iconic ‘Got To Give It Up’ on their hit single ‘Blurred Lines,’ without clearing it with Gaye’s estate. After a long legal battle, the verdict landed in favor of the estate, and Pharrell and Thicke were ordered to pay $5 million to the Gaye estate for copyright infringement.
Music sampling is something fairly common nowadays, and it happens when a musician copies a portion of a previously recorded song into one of their own songs, as a tribute or homage to another artist. That homage, however, needs to be ‘cleared,’ meaning proper credit needs to be given to the original material. Sampling is quite easy to spot, because you can recognize the beat or chords from the original song. But there is also something like interpolation, which is not quite as obvious.
You know when you hear a song and you think it sounds familiar, but you can’t really put your finger on it? It’s not so much copy-pasting a song, but reproducing the melodies or lyrics to create a new piece of music - and that needs to be cleared, as well. That’s what Olivia Rodrigo did with her single ‘deja vu:’ she was inspired by Taylor Swift’s song ‘Cruel Summer,’ so much so that the songwriters for Swift’s song were added as co-writers on Rodrigo’s track.
Clearing music samples and giving credit where it is due is crucial to avoiding any legal problems in the future, but it’s also important because it can damage your reputation as an artist. But it’s not quite as simple as it sounds, which is why you should consult with an attorney or expert who specializes in copyright law if you’re not sure what you’re supposed to do.
We’re going to try to break it down for you so you understand what it means to clear a music sample, and how music licensing works. If you’re a newcomer and are looking to learn about licensing and copyright, then make sure to keep reading.
How does music licensing work?
Nowadays, artists, especially those specializing in genres like hip hop, pop, EDM, or trance, often use samples or beats created by other artists in their own work. Sampling and beat licensing are part of modern music culture, but it can get quite confusing, especially for new artists. But licensing is a critical part of the process, and if overlooked, it can cause a lot of legal and financial troubles down the line.
Usually, the person holding the copyright for a track has exclusive legal rights to sell, distribute, and license that track to other parties. So, a musician who wants to use a sample of a track or even the entire composition, has to obtain the right to do so from the copyright holder, through a licensing agreement. This license agreement can include the right to distribute and monetize a song, either in physical format, digital format, or on a streaming platform - this is called a mechanical license. The agreement can also include the right to perform the track or part of it live, in concerts or on the radio - what’s called a performance license. But there's more to it than that.
What is a mechanical license?
Every song holds two copyrights, namely copyrights for the sound recording and for the underlying musical composition. In order to reutilize and reproduce part of the composition of the song, like melodies, chords, arrangements, or lyrics, a mechanical license is required by law. If an artist is looking to ‘sample’ part of the sound recording, as it appears on the original record, they will also need to obtain a non-mechanical license besides the mechanical one.
Sound recording copyrights are usually handled by record labels, while the underlying musical compositions are handled by a music publishing company or an agency like Harry Fox, which represent composition rights holders directly or can direct licensing fees to the right parties.
Besides mechanical licensing and sound recording licensing, there is also performance licensing. This is required when an artist wants to perform a song by another artist live, either in concerts or on live radio. And then there’s also a synchronization license, which is required if you want to sync music with some kind of visual media. It might sound complicated, but it’s really just a matter of identifying the purpose of the sample or composition you’re looking to get licensing for, aka, what do you plan to do with it?
Why is it called a mechanical license?
There’s no real information on why mechanical licenses are called this way, but it might have something to do with the emergence of player pianos. Yes, you read that right. Mechanical licenses were, in fact, created as a response to the emergence of player pianos - those automated pianos featuring rolls of paper with punch holes in them, which ‘read’ music mechanically.
It was back in the early 1900s when these pianos first appeared, and they caused quite a stir in the musical world. Songwriters back then made their money by selling sheet music. They claimed that the piano rolls were equivalent to sheet music, and demanded royalty payments from piano manufacturers whenever a piano roll played their music.
A legal battle ensued, and in 1908, the U.S. Supreme Court ruled in favor of the piano manufacturers, stating that piano rolls did not fit the existing definition of sheet music. Needless to say, musicians were not happy with the decision, and took the matter further down to Congress. The result was the Copyright Act of 1909, which established mechanical licenses as a way of providing royalties to songwriters. To this day, mechanical licenses are compulsory, and artists are required to pay a fixed licensing fee, which, as of 2023, is 12 cents per track or 2.31 cents per minute of playing time or fraction thereof, whichever amount is higher.
The Music Modernization Act of 2018 introduced the Mechanical Licensing Collective, or MLC. This is a U.S.-based non-profit organization that issues mechanical licenses for streaming services like Spotify, Apple Music, Tidal, or Amazon Music. It consists of a public musical works database where music publishers and creators can submit their data and work. The MLC grants blanket mechanical licenses, then collects royalties due under those licenses and distributes them to the rightful parties. It’s a way of ensuring that the right songwriters, composers, and publishers receive royalties generated from digital service providers.
Clearing music samples
If an artist wants to use a sample of a song for their own music, they will need to get the proper licensing in place to avoid legal troubles down the line. Typically, the artist has to pay an up-front, fixed licensing fee to obtain a mechanical license for the song or part of the song, and obtain the right to use the master recording, as well - so both a mechanical and a non-mechanical license are necessary to clear a sample.
Naturally, the longer the sample used, the higher the fee; additionally, if the original track being sampled is well-known, fees might be higher, and the original owner might also require ownership interest in the new recording. However, this is rarely the case for emerging artists.
The original owners of the master and the composition have the upper hand in these negotiations, but it’s important to take any necessary measures to obtain relevant licensing. If you don’t clear your music samples with the required parties, you could face much higher legal and copyright fees in the future, especially if your sampled song becomes commercially successful. You can browse the U.S. performing rights society databases on the BMI or ASCAP websites to find out who the original composers and producers are for the sample you want to use.
Clearing beats
When it comes to clearing beats, or instrumental tracks, a license is also required, but unlike samples, beats can be either purchased in full or ‘leased’ for a fixed period of time. This is what determines whether the license is an exclusive or non-exclusive one, as creators can ‘lease’ the same beat to others, as well.
Non-exclusive rights will allow you to use the beat for non-profit promo use, or demos, and you can record, mix, and alter the beat as you wish, as long as you give full credit to the beat owner. Exclusive rights mean you have unlimited commercial recording and broadcasting rights, and the recording is yours to own as ‘work made for hire.’ You still need to give credit to the seller, aka the original creator of the beat, but they won’t be getting royalties from any sales or downloads.
Conclusion
While it can be a time-consuming, costly, and often confusing process, obtaining the relevant licensing for a sample, composition, or beat you want to use in your own music is critical. Getting the proper rights will save you a lot of time and a lot of trouble down the line, and will help you avoid legal battles and reputation damage. So, here is a summary of the different types of right you might need:
- Mechanical licenses: a compulsory license that allows you to use the original composition of a song (melodies, verses, lyrics). This protects and gives credit to the song’s original composer or songwriter, which can be found in databases like the Harry Fox Agency or Music Reports. Mechanical licenses require a fixed fee: 12 cents per track or 2.31 cents per minute of playing time or fraction thereof.
- Synchronization licenses: similar to mechanical licenses, but limited to video. They are required if the artist wants to synchronize music with different visual media.
- Master licenses: a master license is required for use of audio-only products like vinyl records, CDs, or digital downloads. Such a license is required when an artist wants to ‘copy paste’ parts of the recording into their own music. The master license must be obtained along with the mechanical license to give credit to both the original composer and the owner of the sound recording. Record labels usually hold the rights to the master recording.
- Performance licenses: licenses required for an artist to be able to perform a song live, on the radio or in concert - we’ll talk about this in more detail in a future blog post, so stay tuned!
If you’re interested in talking to a music industry professional and getting on-point, invaluable feedback on your work, join Xposure Music and create your account now. Our platform connects talented musicians to top producers and decision-makers in the industry, including execs from Atlantic Records, Def Jam, Universal Music, Sony, BMG, or Interscope. All you need to do is create a free profile, find a music pro you want to get feedback from, and submit your work. Fees are transparent for each professional and shown publicly on their profile.
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