How does sampling work with respect to legal/ethical issues?

Question

My understanding from Wikipedia is that sampling of any kind could breach copyright and there have been many plagiarism lawsuits, but this seems inconsistently handled and I don't understand what the clearance process is nor how it actually works at scale.

For example, the group Avalanches make a large amount of music built on top of thousands of samples - how is stuff like this done in practice?

It's hard to imagine that during or after hours/weeks/months of production work, someone has been keeping tally of every 2 second sound used and then is going out to cold contact huge amounts of random folks to ask for permission and sign papers. Also the underlying infrastructure to even catalog and keep track of who has rights over what would have to be a huge effort itself.

On the other hand, if the norm is a "better to ask for forgiveness than permission" strategy - how is that sustainable? All it'd take is 1 person to make a strong claim and you've suddenly got a lawsuit on your hand.

Finally, I could understand how bigger artists could have large supporting arms to handle a lot of the overhead but how does this work in practice for the little guy that's just producing music on SoundCloud sampling stuff from their basement - how and why are they able to produce music reusing other music?

Answer 1

This is a common misconception…

sampling of any kind could breach copyright

The term used is usually 'infringes' but the true statement is

sampling of any kind does infringe copyright - unless licenses are obtained.

There's no grey area in the copyright infringement. If someone finds it they can sue for it. The chances of them doing so are really proportional to the amount of money they'd make back from the action. A bedroom sampler with a couple of hundred hits on YouTube - no-one is going to bother.
There's no "You can do it if it's shorter than x seconds". That's a myth.
So is claiming "fair use".

There's a good quote in the linked article -

“We were definitely guilty of harboring a ‘No-one’s going to listen to it anyway’ sort of attitude.”- Robbie Chater

By implication, they didn't think it was going to go big time, so they thought no-one would care.

There's also this

"According to Chater, original drafts of the album had almost twice as much music as the version released to stores. “I think that the album was a little diluted by the time we had finished clearing all the samples,” Chater told Tiscali in a 2002 interview. “We’ve got even longer versions of the album back at home. They’re about two hours long, but we thought we’d better edit it before we put it out.”

So, yes, at some point someone had to go through the whole lot & apply for licenses. The ones they couldn't get had to be left out of the release.

You need two licenses to use a sample, one from the owner of the song, the other from the owner of the recording. These are not necessarily the same company, though they may be subsidiaries or partners. As the structure has become better organised over the past 20 years, companies now have departments set up to deal with this, making it easier than it used to be. However, unlike making a brand new cover version of an existing song, the license holder is not compelled to grant the license. They can just say no.

What does sometimes happen is that a track is released as a 'white label' - a theoretically anonymous track that's hard to trace back to the makers - to see if it gains traction on the dancefloor, before going for approval.
This happened to some friends of mine, who first produced this as a white label & includes several samples of Michael Jackson's 'Don't Stop til You Get Enough'.

Which, after some legal wrangling, licensing & re-writing was eventually released and became a world-wide hit as this

Another example - this one was never in fact released - we first got permission to use large chunks of the original Adamski/Seal track [three licenses, two independent authors for the song and a record company], which was used for the initial remix [no copy available], though eventually all was re-created from scratch, so only the song license was needed, the music itself was entirely new - a cover version, if you like. [I don't own the rights to this even though it's on my Soundcloud page. I did all the instrumentation & made the composite edit/remix.]

https://soundcloud.com/graham-lee-15/control-youre-the-power-mix1-master

References:
Tunecore: Music Sampling and Beat Licensing 101
DIYmusician/CDBaby: How to Legally Clear Samples to Copyrighted Music