Most people have come under the impression that, if they aren’t making profits off of a song, using uncleared samples is fine. It’s not.
Myth #1: “I’m Not Selling My Songs So I’m Safe”
This couldn’t be further from the truth. This myth, combined with misinformation about what a Creative Commons license is (more on that below) is one of the most propagated myths out there in the music industry.
This myth tries to rely on money; if there’s no money made from illegal sampling, then there’s no money to go after. But that’s not actually how real life works. A rights holder can base a claim around damages, not just sales of their protected work. If you think lawyers won’t go after people who don’t have much money, or doesn’t have many assets, or is under the age of 18 or even someone who lives in another country, think again. If the music industry is willing to sue 12 year old girls for downloading music, what do you think they’ll do to you? Don’t think money they’re asking for could be that much? If they tried to sue Jammie Thomas-Rasset $220,000 for downloading only 24 songs, picture the price tag they can dream up for “illegal sampling”.
It’s been proven ethics have no place in the music industry. Which leads us to…
Myth #2: “My Stuff’s So Obscure, It’s Not A Problem”
Ahh, the old security-through-obscurity mindset. Yeah, not true. If “fans” can find your music, others can too. Music “policing” is done via major licensing agencies and there are people paid to listen to all these obscure songs on SoundCloud, BandCamp, etc, listening for samples they recognize. You may feel your sample is so unique and unknown, but if a person’s job is to listen to obscure, vintage samples all day long, you might be surprised of what they recognize.
Don’t believe me? I, myself, have heard countless songs on SoundCloud where I recognize some obscure, old sound and could pin-point exactly where it came from. I usually private message people (never publicly), ask them if I’m correct in identifying the sound sample and they respond flabbergasted I was able to identify the sample. “yes, from this 1949 film i saw on youtube, how did you know?!????!!” I then tell them it’s cool, but they still get so freaked out they usually delete crap loads of their songs (assuming the ones that contained illegal samples). It’s sad, I’ve seen it happen to people with 10 followers and people who have thousands. Once the idea hits home that “security-through-obscurity” isn’t foolproof, their world gets turned upside-down.
So, if I, a non-expert, am able to find and identify people’s uncleared samples, what makes you think an actual paid expert isn’t able to? And if anyone close to you knows your uncleared sample source, don’t ever screw them over. They very well may send an anonymous tip towards your so-called “obscure” song. Which brings us to the next myth…
Myth #3: “My Stuff’s Good, It’s Under A Creative Commons License”
Many people think the Creative Commons is a sampler’s shield; it’s not. The Creative Commons (CC) is awesome. I’ve spoken with Laurence Lessig, one of the founders of the Creative Commons, about music copyright laws a few months before he co-founded the Creative Commons (around 1999 or 2000). His ethical views on music are nearly identical to mine, which is one of the reasons I share my music 100% free.
But people seem to think the Creative Commons is a shield for using unlicensed samples. It’s not. It provides absolutely zero protection. In the eyes of the “global courts”, using unlicensed samples is illegal. It doesn’t matter if you’re not making sales off your song.
People don’t even read the text that is on the simple “about” page of creativecommons.org, which states:
“Creative Commons licenses are not an alternative to copyright. They work alongside copyright and enable you to modify your copyright terms to best suit your needs.”
You’re Not Allowed To Use Uncleared Samples Under A Creative Commons License
Not only are Creative Commons licenses not a shield for using uncleared samples, but the Creative Commons organization actually forbids you from declaring works with illegal samples with a Creative Commons license.
Countless people on the internet believe otherwise, but the Creative Commons organization outlines it. It states:
“Do you own the material you want to license? If not, are you otherwise authorized to license it under the specific CC license you are interested in using? You should not apply a license to material that you do not own or that you are not authorized to license.”
This is worth repeating:
“You should not apply a license to material that you do not own or that you are not authorized to license.”
You’re Not Even Allowed To Use Legally Licensed Samples Under An Attribution Creative Commons License
Here’s an example; say you want to buy Star Wars on DVD. The movie studio allows you to buy Star Wars and play it for yourself and others. What you’re not allowed to do is make copies of the Star Wars DVD and sell it to others, even if you give it away for free. That makes sense; people understand that.
Well this is the same thing with licensing a sample for a song. You’re paying for the ability to use this sample for your own use (in your own music). But you’re not buying the rights to the song that the sample is from, so you’re not able to allow others to use it.
So when you use a Creative Commons license, even if your own song is free-and-clear legally, if it contains samples that you have licensed but don’t own the rights to (rights bought from both the copyright owner / publisher and the owner of the master recording), then you’re not legally allowed to place an attribution Creative Commons license on it.
Releasing Uncleared Samples Under A Creative Commons License May Hurt Others
The Creative Commons were created to allow people who create original, non-sampled material a way to allow samplers, remixers and various creative types a method for legally using material without fear of breaking the law. Yet if you’re using uncleared (illegal) samples (and even cleared ones unfortunately, as described above) in your music and place an attribution CC license on it, you’re misleading people into believing they can build upon your work and be 100% legal.
As opposed to a CC “Attribution-NoDerivatives” license, a CC “Attribution” license:
“protects the people who use your work, so they don’t have to worry about copyright infringement”
The very people choosing to work with Creative Commons content are doing so to avoid copyright infringement. Yet, for all those that are illegally (and legally) sampling and releasing their content under a CC license allowing derivatives, they’re setting others up for copyright infringement. Sucks, I know. We don’t have to agree with the laws, but we’re force to live under them.
People Have Misused Creative Commons Licenses To The Point They Can’t Be Trusted
In my travels across the music landscape, it’s become extremely rare to come across people in the electronica scene who don’t sample existing music, legally or illegally. So much that I actively discourage anyone from using anything under a creative commons license taken at face value. (People like me who don’t sample music seem to be a dying breed.)
Think about it… it’s just not worth the risk. All that “fair use” talk goes right out the window the moment you’re contacted by a lawyer of a rights holder. What do you think will happen if you added upon a CC license song allowing derivatives if, years down the road, it’s discovered something in the song was unlicensed for you to use? The moment you contact the person you got the Creative Commons attribution licensed song from, Mr. Joe Blow, he’ll be *proof* gone. Every single page he ever created online will “magically” be removed.
Try explaining, in a room of lawyers, “Honestly, it was Mr. Joe Blow from SoundCloud! I can no longer find his stuff online, but honest… he had a Creative Commons license and all!” The lawyers, including your own, will laugh in your face.
Try taking it up with the Creative Commons organization and they’ll tell you, unfortunately, that this is an issue between you and Mr. Joe Blow. (I contacted the Creative Commons organization, they clarified the talking points of this article.)
Try to get information about Mr. Joe Blow from whatever free music web sites he used and the support staff will tell you “Unless you have a search warrant, our policy is to never reveal personal information for our users. Have a nice day, sir.“
Even if you do track Mr. Joe Blow down somehow, don’t be surprised if he lives in a country half a world away from you. If a miracle happens and you do get a message to him, he ain’t gonna’ risk his neck for you. “but we still fam! 1 <3!!!“
What Can Be Done To Make Things Right?
Well, if you’ve already released a song with an uncleared (illegal) sample, you can try to get it cleared. This is a tricky process which can lead to unwanted attention your way. (For those creating original music, here’s a step-by-step guide with pictures on how to copyright music.)
If getting your song cleared isn’t an option, you could continue to take the chance of nothing bad happening. Or remove the songs which contain illegal samples (for some people, that means all their songs). Or remove your content temporarily to replace the illegal sample with original content (it’s even possible to make original content sound sampled and vintage). Click play below and listen.
I did the audio and video of Rebirth of Radiance with modern hardware, no vinyl records or antique camcorders.
My favorite option for people is to go forward, as a new day, focusing on creating original content.
Later. – MJ