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Sampling occurs when a portion of a prior recording is incorporated into a new composition. When a song is sampled without permission, copyright infringement of both the sound recording (usually owned by the record company) and the song (usually owned by the songwriter or publishing company) has occurred.

In order to legally use a sample, you will need to contact both the owner of the sound recording and the copyright owner of the underlying musical work for permission. License fees for sampling vary greatly and depends on the following:

  • how much of the sample you intend to use
  • the music you intend to sample
  • the intended use of the sample in your song

Licenses can be granted for free, for a percentage of the mechanical royalties (i.e., a couple cents for each record pressed), or for a flat fee. As there are no statutory rates for samples, the copyright owner can charge whatever he wants and does not have to let you use his work at all.

Using samples without permission can lead to you paying statutory damages to the copyright owner from $500-$100,000 per infringement, and a court can even make you to recall and destroy all of your infringing albums.

Do not rely on the “fair use” doctrine or the myth that you can use a certain number of seconds of someone’s song without penalty. Get permission.

– via entertainerlaw.com


Public Domain

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A public domain work is a creative work that is not protected by copyright and which may be freely used by everyone. The reasons that the work is not protected include:

  • the term of copyright for the work has expired
  • the author failed to satisfy statutory formalities to perfect the copyright
  • the work is a work of the U.S. Government.

Things to note:

  • Be careful when using songs that appear to be public domain. Just because it’s old doesn’t mean it’s public domain.
  • An arrangement of a public domain song can be copyrighted. For example: the song “Rockin’ Robin” is in the public domain, but the arrangement made famous by Michael Jackson is under copyright.

The current status of a work’s copyright protection in the United States is as follows:


These works are in the Public Domain.


Work is under copyright when published with notice.

The original term is 28 years, which could be extended to a total of 95 years from publication (first renewal of 47 years w/an extension of 20 years, for a total renewal of 67 years). If not so renewed, or if published without notice, the work is now in public domain.

Under the 1909 Act, works published without notice went into the public domain upon publication. Works published without notice between January 1, 1978 and March 1, 1989 (the effective date of the Berne Convention Implementation Act) retained copyright only if efforts to correct the accidental omission of notice was made within five years, such as by placing notice on unsold copies. 17 U.S.C. § 405.


Work is under copyright when published with notice.

Work enters the public domain 95 years after the publication of the work (Original term is 28 years, with an automatic renewal of 67 years)

WORKS PUBLISHED Before 1978 but not published:

Work enters the public domain 70 years after the death of the longest surviving member, or on 12/31/2002, whichever date is greater.

Protected from 1/1/1978, the effective date of the 1976 Act which eliminated common law copyright.

WORKS CREATED Before 1978 but published between 1978 & 2002:

Work enters the public domain 70 years after the death of the longest surviving member, or on 12/31/2047, whichever date is greater.

Protected from 1/1/1978, the effective date of the 1976 Act which eliminated common law copyright.

WORKS CREATED After January 1, 1978:

Work is under copyright when fixed in a tangible form (written, recorded, etc.)

Work enters the public domain 70 years after the death of the longest surviving author.


Types Of Publishing Income

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Mechanical & DPD

A Mechanical License is required when a label wants to release a song on a CD. If they want to release the song digitally (i.e. iTunes, etc.), a Digital Phonorecord Delivery License (DPD) is required.

The royalty rate for this type of use (better known as the statutory rate) is set by the Library of Congress, and is currently:

  • $0.091 per song sold (for songs five minutes and under)
  • $0.0175 per minute (for songs over 5 minutes long), rounded to the next minute.
    Example: a song timing of 5:01 would round up to 6 minutes, resulting in a rate of $0.105 per song sold (6 x $0.0175)


A Synchronization License is required when a song is placed onto an audiovisual use (in a TV show, music video, movie, etc.). This is licensed and paid by the production company of the audiovisual use, usually in a lump sum. This payment is negotiable, depending on the songwriter’s bargaining power.

In a synchronization use, both the master copyright & the publishing copyright must be licensed, which means more money for those who self-publish & own their own masters.

Public Performance

When a song is broadcast in a public medium for public consumption (on the radio, in a commercial, at a concert, in a restaurant, etc.), Performance Royalties are generated.

These royalties are licensed & paid to Performance Rights Societies (PROs), who then pay the writers and the publishers. The PROs in the US are:

(NOTE: You can only be affiliated with one of them at a time.)


Whenever your song is sold as in print form (lyrics, sheet music, etc.)


Types Of Publishing Deals

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Standard Publishing Deal:

The songwriter is signed exclusively to a publisher for a time period, and is given an advance check against future royalties (the amount of which is negotiated & depends on the writer’s bargaining power). The publishing company then co-owns any songs you write during this period, takes care of the administration & exploitation of the catalog, and is entitled to the publisher’s share of the royalties.


Co-Publishing Deal:

The songwriter and the publisher are co-owners of any songs written during the contract period. The songwriter collects the 50% writers share, and as “co-publisher”, splits the publisher share 50/50 with the publisher. In the end, the writer receives 75% of the income, and the publisher receives 25%.


Administration Deal:

The songwriter licenses a selection of their self-published songs to an outside publisher (or independent administrator) for a time period. The publisher is responsible for handling the administration on behalf of the songwriter, and collects a fee of 10-20%. In this deal, the writer retains 100% of the copyright.

Other types of publishing deals include:

  • Single song agreement: the writer grants publishing rights for one or more songs to a music publisher.
  • Collection agreement: like an administration deal, except the publisher isn’t responsible for exploiting the copyrights. Usually handled by an accountant, attorney, or business manager, the “publisher” only collects royalties on behalf of the writer.
  • Purchase agreement: when one music publisher acquires the catalog of another publisher (whole or partial).

What Is A Music Publisher?

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A music publisher is a company responsible for exploiting the copyrights of its songwriters and composers. This means pitching music to to potential licensees (artists, labels, TV/Film executives, etc.), taking care of all licenses and other paperwork on behalf of the songwriter, and ensuring they receive payment when their compositions are used. In return, they are entitled to a piece of the revenue generated.

If you haven’t signed a publishing deal, YOU ARE YOUR PUBLISHER! If you feel like you can’t take on the task of exploiting and administering your song catalog, then you should look into getting a publishing deal.


Composition vs. Recording

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When listening to a song, you are experiencing two separate copyrights: the sound recording (the sound you hear) and the underlying composition (the music/lyrics). Music publishing deals with the copyright of the underlying composition.


A good example of the difference between the two is the song “I Will Always Love You”. Dolly Parton wrote and performed the song in 1973. Nineteen years later, Whitney Houston recorded the same song.

Two different master recordings, same composition.

While their respective record labels own the master recordings, Dolly Parton & her publisher own the copyright for the underlying composition (since she wrote it), and they collect publishing revenue for BOTH versions. Suffice to say, it pays to be a writer!


Rights Granted Under US Copyright Law

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Under this right, no one other than the copyright owner may make any reproductions or copies of the work. Examples of unauthorized acts include:

  • photocopying a book
  • copying a computer software program
  • using a cartoon character on a t-shirt
  • incorporating a portion of another’s song into a new song

It is not necessary that the entire original work be copied for an infringement of the reproduction right to occur. All that is necessary is that the copying be “substantial and material.”


According to the Copyright Act, a derivative work is “a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.”

A derivative work usually involves a type of transformation, such as the transformation of a novel into a motion picture. In the computer industry, a second version of a software program is generally considered a derivative work based upon the earlier version.


The distribution right grants to the copyright holder the exclusive right to make a work available to the public by sale, rental, lease, or lending. This right allows the copyright holder to prevent the distribution of unauthorized copies of a work. In addition, the right allows the copyright holder to control the first distribution of a particular authorized copy.

However, the distribution right is limited by the “first sale doctrine”, which states that after the first sale or distribution of a copy, the copyright holder can no longer control what happens to that copy. Thus, after a book has been purchased at a book store (the first sale of a copy), the copyright holder has no say over how that copy is further distributed. Thus, the book could be rented or resold without the permission of the copyright holder.

Congress has enacted several limitations to the first sale doctrine, including a prohibition on the rental of software and phonorecords.

Public Performance

The public performance right allows the copyright holder to control the public performance of certain copyrighted works. The scope of the performance right is limited to the following types of works:

  • literary works
  • musical works
  • dramatic works
  • choreographic works
  • pantomimes
  • motion pictures
  • audio visual works

Under the public performance right, a copyright holder is allowed to control when the work is performed “publicly.” A performance is considered “public” when the work is performed in a “place open to the public or at a place where a substantial number of persons outside of a normal circle of a family and its social acquaintances are gathered.” A performance is also considered to be public if it is transmitted to multiple locations, such as through television and radio. Thus, it would be a violation of the public performance right in a motion picture to rent a video and to show it in a public park or theater without obtaining a license from the copyright holder. In contrast, the performance of the video on a home TV where friends and family are gathered would not be considered a “public” performance and would not be prohibited under the Copyright Act.

Public Display

The public display right is similar to the public performance right, except that this right controls the public “display” of a work. This right is limited to the following types of works:

  • literary works
  • musical works
  • dramatic works
  • choreographic works
  • pantomimes
  • pictorial works
  • graphical works
  • sculptural works
  • stills (individual images) from motion pictures and other audio visual works

The definition of when a work is displayed “publicly” is the same as that described above in connection with the right of public performance.


What Is A Copyright?

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Copyright is a form of protection provided by the laws of the United States (title 17, U.S.Code) to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works.

A work is under copyright as soon as it is fixed in a tangible form; this means that as soon as it is written down or recorded, it is under copyright.

Copyright Law grants all copyright owners the right to:

  1. reproduce their copyrighted work
  2. prepare derivative works (remixes, etc.)
  3. distribute copies of the work to the public
  4. publicly perform the work
  5. publicly display the work

Things that are copyrightable:

  1. Literary works
  2. Musical works
  3. Dramatic works
  4. Pantomimes & choreographic works
  5. pictoral, graphic & sculptural works
  6. Audiovisual works
  7. Sound recordings
  8. Architectural works

Click here for more information on copyright owner rights.



General Things To Know About Music Publishing

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  • Once it’s created & fixed in a tangible form (i.e. something you can hold), it is under copyright. However, registering the work(s) with the US Copyright Office gives you an added layer of protection.
  • The life of a copyright in the United States is currently 70 years after the author’s death (life + 70). At this point, the work enters the public domain.
  • Works in the public domain are no longer protected by copyright law, and can be freely exploited without the need for a license.
  • When you write a song, you have a say in who can release it to the public first. This is called the first use clause.
  • When you co-write a song with others, it is in your best interest to complete a split sheet, a form that states who wrote what & who controls what percentage of the song (equaling 100%). Everyone should sign & date it, and everyone should get a copy. This will eliminate split dispute issues down the line.
  • If anyone plays on the record that wasn’t a writer, have them sign a work-for-hire form to prevent future publishing dispute claims.
  • In order to sample or interpolate someone else’s music, you must get permission from the original copyright holders.

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