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Comment by WA | Hacker News Reader

On a side note: How does the whole legal process work? I mean, the original tracks, or at least parts of it, are taken from a song and re-sampled to create something new. So far so good. But is everybody allowed to do it or do you have to ask the original creator for permission, especially if you want to use the new sample in/as commercial products?

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You need to get permission from the copyright holder, which has gotten substantially more expensive over the years. Hip hop tracks back in the 80s and early 90s used to contain loads of different samples all mashed together, but it slowed down a bit after people started suing. Nowadays sampling isn't quite as popular, and sampled tracks don't usually use more than one or two samples.

The rapper Fabolous had a hit song "Breathe" several years ago that contained a sample from a Supertramp song. The track leaked and became HUGE before they cleared the sample, so when it came time to negotiate Supertramp had all the leverage. Supposedly they got $100,000 plus almost all royalties, so Fabolous didn't make any money off the single. (Though of course he made tons on album sales).

EDIT: Just because you're supposed to clear samples doesn't mean people always do. If a sample is obscure enough or sufficiently altered, artists may try to get away with it hoping that no one will notice -- apparently that's the case with Daft Punk. I think Timbaland has gotten into trouble sampling foreign artists without permission ("Big Pimpin'", maybe), and the source of the sample in Nas's "Nas is Like" went unknown for around a decade. See http://www.whosampled.com/sample/4061/Nas-Nas-Is-Like-John-V...

For other people who were as curious as I was:

"Breathe" by Fabolous: http://www.youtube.com/watch?v=e8zRiaLOkfc

"Crime of the Century" by Supertramp: http://www.youtube.com/watch?v=RLcHStXAaNg (the sampled bit seems to start about 2:07)

For non-commercial use, can an artist sample without legal threat?

For example, if an artist is just posting 80s style tracks with dozens of uncleared samples on their website free for their fans to download, doesn't fair use allow for it?

In practice, people do whatever they want and then just apologise later if they get in trouble.

Eg: https://www.facebook.com/photo.php?fbid=10151547332313143&se...

which is apologising for: http://www.youtube.com/watch?v=BnigNbYVQJE

(This was a massive tune last summer, getting loads of radio airplay and all over the clubs. Hence the apology. Really, by these standards he should apologise to Mr Fingers as well: http://www.youtube.com/watch?v=Xmz3SVuHPhs)

Fair use isn't mutually exclusive with commercial use in the US though in practice there doesn't seem to be much scope for overlap.

Also free-gratis isn't co-terminous with non-commercial as - for example - giving away a competing product is a commercial activity. Also moral rights can arguably be harmed by sampling ... and then you've got parody exceptions ... it's nuance all the way down.

I believe so, but not 100% sure. There are a lot of artists nowadays releasing sample-heavy music for free, and then making their money by touring and playing it live.

This depends on the jurisdiction also. The concept of ‘Fair use’ does not exist in European copyright law, which makes any sampling without permission a potential copyright infringement.

The test for infringement in Europe requires that a "substantial" part be copied however.

Such samples [as in the OP video] IMO aren't substantial but I think the contrary point can be argued well as "if it's not substantial why copy it / it must be substantial to warrant reuse (with or without modification)"?

This (dated) Slate article makes a pretty convincing case that when a proper fair use case finally gets to court, most sampling will likely be deemed fair use:

http://www.slate.com/articles/news_and_politics/jurisprudenc...

Artists like Girl Talk are getting bolder and more blatant in their uncleared sampling. It might have something to do with his giving away his recent albums, though.

Edit: Here's a couple other Slate articles that go into more detail -

http://www.slate.com/articles/business/moneybox/2012/05/adam...

http://www.slate.com/blogs/moneybox/2012/05/08/paul_boutique...

Well, it’s probably possible to make a very decent argument that this falls under fair use in the US (though fair use is quite US specific). Making a fair use argument, however, is always challenging and very much up to interpretation. There is little legal certainty in relying on fair use.

In practice, however, at least big acts always get clearance for the use of samples. That removes the legal uncertainty that would surround a fair use argument.

https://en.wikipedia.org/wiki/Mechanical_license

Those don’t cover sampling.

You are also legally allowed to remix for personal use. It's how legitmix.com sells unlicensed remixes legally.

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