Is it okay to post tracks with unlicensed samples?

I am not a lawyer, just a guy who studies hip-hop academically. But I’m married to a lawyer, and have spoken to various music industry people and done a lot of reading on this. My advice is to go ahead and post tracks with uncleared samples, even though doing so is technically illegal.

Understand that you are not allowed to use samples without permission, even if you are giving away the track for free, and even if you give credit and say you aren’t intending to infringe anyone’s copyrights. But posting tracks with uncleared samples is “illegal” the way jaywalking is illegal. It is very unlikely that doing it will get you into any trouble. Entertainment lawyers cost money, and the copyright holders have better things to do than go after indie artists who aren’t profiting off their samples. The chief copyright attorney for a major publisher told me that they don’t go after random people on the internet, because there’s no upside, and it attracts negative publicity.

If your track does blow up, and you want to release it on a major label, or license it for a TV show or movie, or otherwise make real money from it, then the situation changes. At that point, you will absolutely have to negotiate a sample clearance, both with the songwriter(s) and the owner(s) of the master recording (usually not the same people). You or your label can use a sample clearance service, or hire an entertainment lawyer. I do not recommend trying to do this on your own. The clearance might take the form of a one-time fee, a percentage of royalties/publishing, or both. Depending on who you sampled and how well-resourced they are, this might be a big up-front payment or a major percentage of your publishing. So you or your label might decide that it doesn’t make sense to go through with the clearance. At that point, you will have to replace the sample or withdraw the track from circulation.

Here’s the thing: most rights holders are eager to license samples because it’s money in their pockets. It’s just a matter of negotiating something that makes sense for everyone involved. Occasionally, people will even let you have the sample for free. That said, if you’re going to sample something very famous or popular, it can get expensive. The specific dollar amounts will vary, and these deals are usually confidential, so it is hard to know in advance how much money it will cost you. A music supervisor told me that Kanye West probably had to pay at least $100,000 to sample Nina Simone on his song “Famous.” But that’s an extreme situation. If you are less prominent (and controversial) than Kanye, and you’re trying to sample someone who’s less iconic, it will be quite a bit cheaper.

You should also be aware that there are a few copyright holders who will never license a sample for any reason. The Eagles famously never license samples. Prince never did either, though his estate seems to be loosening up now that he’s passed. Also, be aware that even if an artist is cool with you sampling them, it doesn’t matter if they don’t own their own master recordings (which most artists don’t.) George Clinton loves it when people sample P-Funk records because it introduces his music to young audiences, but his masters are owned by a group of humorless lawyers in Connecticut, and they charge very steep fees. This is why Dr Dre had to hire studio musicians to replay all his P-Funk samples on his albums in the 90s.

Here’s a typical story for you. MIA used a sample of Quincy Jones’ Sanford and Son theme song on her track “URAQT.” She gave it away on her Piracy Funds Terrorism mixtape without any problem. When it came time to release it on an album, her label approached Quincy Jones, and he wanted some large sum of money. The label didn’t think it was worth it, so MIA had to replace the sample. But then the album blew up and started selling lots of copies, and MIA became a big star. At that point, her label decided that paying Quincy Jones his $50,000 or whatever it was would be a worthwhile investment after all. The album was re-released with the Sanford and Son samples reinstated.

Relationships matter, in this as in everything. If you have a personal connection to the person you’re trying to sample, that makes it more likely to get a good outcome. Also, it makes a difference how the person feels about your music. I have had some people sample and remix my music (they’re also no-name bedroom producers, so no money was involved.) I’m usually delighted when that happens, even if I don’t like the music. But if the person is advocating white supremacy, that would be a solid dealbreaker.

Another thing: Kanye is notorious for putting unlicensed samples in his songs and daring people to come after him. This is not a good idea. Kanye can do it because a) he can afford to drag things through the courts forever, and smaller rights holders know that, and b) he is behaving like a sociopath. Presumably you are not that rich, or that unethical.

Yet another thing: the situation is totally different for samples from Splice.com or for the loops that come with GarageBand, Logic, FL, Ableton etc. These samples are royalty-free, meaning that you’re allowed to use them in your tracks and make money from them without permission or paying any money to Splice or Apple or whoever. The most famous example I know of is “Umbrella” by Rihanna. The beat is a GarageBand loop called Vintage Funk Kit 03. Rihanna didn’t have to pay Apple any money for it. Also, if you buy a Kingsway Music Library record, the sample license is included in the price. That’s a good business model!

Last thing. I believe very deeply in using unlicensed samples as an artistic statement. There’s an aspect of civil disobedience and anti-authoritarianism to using illegal samples that’s inseparable from the aesthetics of hip-hop. There would be no hip-hop or dance music without it! I love being able to speak back to recorded music, it has transformed my own musical practice, and it’s the basis of a lot of the music that I love. How impoverished would world musical culture be if everyone waited got permission for their samples in advance? I also believe that the owners of those original recordings deserve to get paid, but that shouldn’t stop anyone from making art, you know?

My wish is that someday we have a compulsory license scheme for samples like the one we have for cover songs. If you want to cover a song, the songwriter has to give you permission, by law. You have to pay them a fee, but that fee is set by law, and it’s a pretty reasonable one. You just go to the Harry Fox Agency web site, fill out a form, pay the hundred bucks or whatever it is, the songwriter gets their fee, it’s easy, quick, and makes sense. Maybe someday there will be a system like that for samples too. We need to get some more hip-hop fans into Congress first though.

Again: I am not a lawyer! If real money is at stake, hire a professional. But if you’re just giving away your tracks on SoundCloud, you should be so lucky as to get into a situation where sample clearance becomes an issue. I’ve been posting tracks with unlicensed samples for many years now, and the worst thing that has happened to me is that they get taken down. If I ever have to hire a lawyer, it will mean that something good (and unexpected) happened.