Legal issues in music sampling — Drake’s ‘One Dance’ hit song

EBITU LAW GROUP, P.C. Entertainment Law

Drake’s hit single ‘One Dance,’ off his latest album ‘Views,’ has enjoyed global success, including topping U.S. (Billboard), and U.K. music charts. Nevertheless, the success of the song and album has not been all smooth sailing because they have been trailed with controversy over Drake’s alleged sampling of the works of others without consent, compensation or credit.

The controversy surrounding Drake’s alleged illegal sampling raises a few important legal issues creative talents should be mindful of.

As a general rule, under U.S. Copyright Law, when an author (the creator) creates work that is fixed in a tangible medium of expression e.g. written or recorded music, fashion prints, or a book, there are six legal rights that are automatically triggered. They include the right to perform, publicly display, reproduce and make derivative copies of the author’s original work.

A derivative work is a work based on or derived from one or more already existing work. The right to create a derivative work belongs, exclusively, to the original author of the work, with certain limitations.

Where music sampling occurs, there are two rights that are affected under the law. They are:

  1. the copyright in the composition which is usually owned by either the artist or the music publisher; and
  2. the copyright in the sound recording, i.e. the version of the song (the masters), which is typically owned by the record company or the recording artist.

In hip-hop music, the common practice of sampling (which is a derivative work) dates back to the 1980s. Hip-hop artists notoriously sampled musical works of others without any repercussions. By the 1990s, record labels and music publishers caught on to the immense success and revenue that sampled hip-hop music generated. As a result, many began aggressively pursuing legal action against infringers of their copyrights in the sampled music. Today, it is common knowledge that if you will sample the work of another artist, it is prudent to obtain the appropriate permission i.e. copyright clearance.

At this point, the obvious question becomes how much do you have to pay for sampled work? The answer is that it depends on the leverage you bring to the bargaining table, how much of the sampled work you will use, and your intended use, among other factors. In the music industry it is not unusual, for example, for songwriters or music publishers to receive compensation in the form of an upfront lump sum, and a percentage of the song’s income. For recording artists or labels, it is not unusual to receive a lump sum and a payment when a certain number of copies of the new work are sold.

Overall, sampling the original works of other musicians or creators involves contractual negotiations over the cost of the work to be sampled, which can be expensive. Therefore, you should have competent legal counsel to help you negotiate the best possible deal.