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Do you need to clear a soul sample?

What United States law actually requires when you sample a soul record, why two seconds is not the safe harbour producers think it is, and what royalty free does to the question.

Soul is the most sampled body of recorded music there is, and it is also where sampling law was largely made. If you are building beats from soul records, the legal position is not a footnote. It decides whether you can release the thing at all.

This guide covers the United States position, because that is where most of the case law sits and where most readers release music. It is general information, not legal advice on your situation, and the law here is genuinely unsettled in one important respect. For a specific release, take advice from a lawyer in your jurisdiction.

1.There are two copyrights, not one

This is the single thing most producers get wrong, and everything else follows from it.

When a soul record was made, two distinct pieces of property came into existence:

• The sound recording, often called the master. This is the specific performance captured on tape. It is usually owned by a record label.
• The musical work, often called the composition. This is the underlying song, the melody and harmony as written. It is usually owned by a music publisher, frequently more than one, split between the writers' publishers.

Sampling the audio uses both at once. You have copied the recording, and you have copied whatever part of the composition that recording contains. So clearance is two negotiations with two different sets of people, and either one can say no independently of the other.

Clearing one and assuming it covers the other is where this goes wrong. In the Beastie Boys flute case, the recording had been licensed from the label and the composition had not, so the composer sued on the composition alone. The Beastie Boys won in the end, on the basis that the three notes taken were too little to be actionable. But they won after years of litigation, and winning was the good outcome. A licence on the master bought them nothing on the composition claim.

2.The de minimis question, and why there is no safe number of seconds

Producers repeat figures to each other as though they were rules. Under two seconds is fine. Under seven notes is fine. Change the pitch and it is a new work. None of these are law anywhere.

What actually exists is a doctrine called de minimis, which is the general principle that a copying too trivial to matter is not actionable. The live question is whether that principle applies to sound recordings at all, and the United States federal courts of appeal have given two different answers.

• The Sixth Circuit said no. In a 2005 decision, over a two second sample of a guitar chord, it held that any deliberate copying of a sound recording infringes however small, and summarised its own holding in five words: get a license or do not sample. On that view there is no minimum.
• The Ninth Circuit said yes. In a 2016 decision involving a quarter of a second of horns, it held that the de minimis principle does apply to sound recordings like anything else, called the Sixth Circuit's reasoning unpersuasive, and acknowledged that it was taking the unusual step of creating a circuit split.

Worth knowing which way the weight sits, because it is not an even contest. The strict rule is the minority position: district courts in several other circuits have declined to follow it as well. That is not a reason to rely on the permissive view, because you do not get to choose where you are sued and the strict rule remains binding in its own circuit. But the answer to "is my two second sample too small to sue over" is genuinely "it depends which federal court hears it", and that is not a position you want to be in once a release is earning.

It is also worth separating the two copyrights again here. The de minimis analysis for the composition is its own question, decided on whether what you took is a recognisable part of the song rather than on duration alone, and that analysis has never been in doubt.

3.What clearance actually involves

If you want to use a commercial soul record properly, the path is:

1. Identify the owners. Label for the master, publishers for the composition. Older soul catalogues have often changed hands several times, so this alone can be slow.
2. Ask both. In writing, with the specific use described: what you sampled, how long, how it appears, how you intend to release it and at what scale.
3. Negotiate. The master side usually wants a fee, a royalty, or both. The publishing side usually wants a percentage of the composition, which means a share of your songwriting on that release going forward.
4. Get it documented before release, not after.

Two things producers find hard to accept. The first is that there is no compulsory licence for sampling, so nobody has any obligation to deal with you at any price, and estates in particular refuse routinely. The compulsory licence that does exist in US law covers recording your own version of a song, not lifting a piece of someone's recording. The second is that clearance tends to be priced on your leverage rather than on the length of the sample, which is why an unknown artist and a major label artist can get very different answers for the identical four bars.

4.What happens if you skip it

The realistic outcomes, roughly in order of how often they happen:

• Nothing, for a while. Most infringing releases are never noticed, which is exactly why the practice is so widespread and why so much bad advice circulates as though it were proven.
• Automated content matching flags it and the revenue is redirected or the release is taken down.
• A letter, usually asking for the release to stop and for an accounting of what it earned.
• A claim. This is where the numbers get serious. US statutory damages run from $750 to $30,000 per work at the court's discretion, and up to $150,000 per work where the infringement is found to be wilful, and a court can order the release withdrawn.

The asymmetry is the point. The upside of skipping clearance is that you saved some time. The downside is losing a record you had a hit with, and the earnings from it, years after you released it.

5.Fair use is a defence, not a permission

Fair use gets invoked constantly in producer conversations and it is very often misunderstood.

It is a defence raised in litigation, not a category you can place yourself into in advance. A court weighs several factors, including how transformative the use is, how much was taken, and the effect on the market for the original. Being creative with a sample helps the argument. It does not settle it.

And the practical problem sits underneath the legal one. Even a fair use argument you would eventually win has to be won, which means a lawyer and a lot of money, against an opponent who has both. Winning is not the same as being able to afford to find out. The Beastie Boys case in section one is the illustration: they were right, and it still took years.

6.The two routes that avoid the problem

There are only two ways to use soul in a release without a clearance negotiation, and both are legitimate.

Interpolation. Rather than sampling the recording, you replay the part yourself. That removes the master entirely, because there is no copying of anyone's recorded performance. It does not remove the composition, so if the melody or harmony is recognisably somebody's song you still need the publishing side. Useful, but only half a solution, and it needs someone who can play.

Original recordings licensed to you. This is what a royalty free sample pack is meant to be. Someone wrote and recorded the material specifically so it could be sampled, and they license it to you directly. Because nothing was lifted from an earlier release, there is no label holding a master underneath it and no publisher holding a composition beneath that. There is nobody else to pay, which is why the person selling it to you can make a plain promise rather than a hedge.

That is a structural difference, not a marketing claim, and it is worth checking rather than assuming. The questions that separate a real licence from a promise are set out in where to find royalty free drum breaks, and they apply to any pack in any genre.

The short version

Two copyrights, both of which need permission, and clearing one does nothing for the other. No reliable minimum length, because the courts of appeal disagree about whether a minimum exists at all. No obligation on anyone to license to you at any price. Real exposure if you release without clearing, weighted heavily against you. And a straightforward way around all of it if you use material that was written and recorded to be sampled in the first place.

None of the above is advice on your particular release. If you have sampled a record and you are about to put it out commercially, that is worth a conversation with a lawyer rather than a forum thread.