The Sample Clearance “Tax” and the Primary Beneficiaries of the Sample Clearance System
The following is an excerpt from ‘The Art of Sampling: The Sampling Tradition of Hip Hop/Rap Music and Copyright Law, 3rd Edition’ by Amir Said.
When the music industry first took notice of sampling, their burning question had to have been: How can we profit from this? Their answer wasn’t exactly a new practice in the realm of recording licenses and song usage rights. In fact, the practice of “clearing” song performances for uses in other works (most notably film and television) had been around long before the landmark Grand Upright ruling. However, when it came to sampling in hip hop/rap music, the major record companies created an entirely new style and form of music rights clearance, one that sought to monetize (and perhaps penalize) sampling — the musical process that utilized fragments of old sound recordings, most of which the majors owned the copyrights to. Further, the major record companies, who have historically discriminated against and exploited Black music artists, also indirectly created a system of sample clearance that serves as a sort of tax on hip hop/rap artists, who, at the time of Grand Upright, were mostly Black and sample-based.
Make no mistake, the sample clearance system was (is) not meant to benefit those recording artists who are sampled. On the contrary, the sample clearance system was (is) designed to benefit the owners of the copyrights to musical compositions and sound recordings. And the owners of these copyrights are practically never the artists who have been sampled, but rather the major record labels and music publishers. In fact, the major labels, or better stated, the major conglomorate groups, own the rights to basically all of the master recordings of soul, blues, jazz, and funk sound recordings recorded between the late 1940s on through the mid-1970s. In fact, according to a regulatory filing, there are just four groups who own roughly 90% “of the music streamed on Spotify.” These groups include: the “big three” labels — Universal, Sony, and Warner Music — “along with Merlin, an agency that represents smaller labels.”[1]
This makes the major labels that make up the major music groups the primary benificiaries of the sample clearance system. So in this paradigm, the pecking order goes like this. First, the owners of the ccopyright to the sound recording, usually the major record companies. Second, the owners of the copyright to the music composition, usually the large music publishers, which are mostly owned by the major music groups. Third and last are the recording artists who were sampled.
Notes:
1: Anna Nicolaou, “Spotify shakes record labels by dealing directly with artists,” Financial Times, June15, 2018 (emphasis mine).
Excerpt from ‘The Art of Sampling: The Sampling Tradition of Hip Hop/Rap Music and Copyright Law, 3rd Edition’ by Amir Said.
