What are the penalties if I do sample?

If you sample without permission, not only are you violating US Copyright laws, you may also be in violation of your own recording contract. If you are signed to a major label, most recording contracts contain several provisions called “Warranties,” “Representations” and “Indemnification,” in which you promise all the material on your album is original and agreeing that if your label are sued for copyright infringement, you agree to reimburse them for all their court costs, legal expenses and attorneys fees.

Similar “warranties” and “indemnification” clauses exist in the distribution agreements between your record company and the retail stores. Thus, when you violate a copyright by sampling it without consent, all the warranties point back to you as the artist. Therefore, if you sample illegally, be prepared to possibly shell out substantial sums of monies to not only the copyright owners, but also possibly to your label and their distributors and retail outlets.

In addition to these costly legal problems, the penalties for copyright infringement is harsh. If you sample somebody’s song without obtain proper clearances, you may be liable to the author for “statutory damages,” which generally range from $500 to $20,000 for a single act of copyright infringement. If the copyright owner proves you willfully infringed their music, you can be liable for damages up to $100,000. The copyright owner also has the right to obtain an injunction against any further infringements, forcing you to cease your further violation of the copyright owner’s rights. There is also a destruction procedure, which forces the infringer to recall all the illegal copies of the song in the albums and destroy them. Finally, you may even face criminal charges from the U.S. Attorney’s Office if you engage in intentional copyright infringement. Therefore, before any artist tries to sample somebody’s copyrighted material to create a new song, no matter how small a portion of the song is used, they should secure the right to do so from the owners of the pre-existing copyrighted owners – the writers, publishers and/or the record companies.

(Reprinted with permission of Ruben Salazar, Esq.)

Penalties for Sampling Without Permission: Case Studies

Case Study 1: Independent Artist With Music Liability Insurance

An independent artist decides to sample a popular song without obtaining proper clearances. The artist releases the sampled song, which gains significant attention and starts generating revenue. However, the original copyright owner discovers the unauthorized sample and files a copyright infringement lawsuit. The artist, unaware of the legal consequences, faces statutory damages ranging from $500 to $20,000 per act of infringement.

In this case, the artist is relieved to have music liability insurance that covers legal expenses and potential damages associated with copyright infringement. The insurance policy helps the artist navigate the legal process, protecting their personal finances and ensuring their ability to continue creating music.

Case Study 2: Signed to Major Label With Errors and Omissions Insurance

An artist signed to a major record label releases an album that contains a sample without obtaining proper clearances. The album gains widespread popularity, but the original copyright owner discovers the unauthorized use and files a copyright infringement lawsuit against both the artist and the label.

The label, being aware of the potential risks, has errors and omissions insurance, which covers legal defense costs and potential damages resulting from copyright infringement claims. The insurance policy helps the label handle legal proceedings, mitigating financial losses and preserving its reputation in the industry.

Case Study 3: Distributor/retailer With Commercial General Liability Insurance

A distributor or retailer unknowingly sells albums containing unauthorized samples. Once the copyright owner discovers the infringement, they file a lawsuit against the distributor or retailer for their involvement in distributing or selling the infringing material. The distributor or retailer, protected by commercial general liability insurance, has coverage for claims arising from intellectual property infringement.

The insurance policy assists in covering legal expenses, settlement costs, or damages awarded in the lawsuit. This protection helps the distributor or retailer avoid significant financial setbacks and ensures their continued operations in the music industry.