Sampling, Interpolations, Beat Stores and More: An Introduction for Musicians Using Preexisting Music An Introduction for Musicians Using Preexisting Music

Sampling, Interpolations, Beat Stores and More:

An Introduction for Musicians Using Preexisting Music

Information

provided by:

Today it is easier than ever to create and distribute

professional-quality music. Musicians can create

songs on laptops, tablets, or phones without ever

setting foot in a recording studio, and they can be

released to the public via digital platforms without

a record label or music publisher. Even individual

tracks, stems, loops, and beats can be oered on

the internet for other musicians to add creative

elements, including instruments or vocals. The

prevalence of “beat stores” – digital marketplaces

for buying and selling audio recordings and music

compositions – has made it easier than ever to use

preexisting music to create new songs.

One of the most successful songs based on a beat from

a beat store is Lil Nas X’s “Old Town Road.” The basis for

this song was the song “34 Ghosts IV,” written by Trent

Reznor and Atticus Ross and recorded by Nine Inch Nails.

Producer YoungKio used the Nine Inch Nails song to make

a beat, which he made available online in a beat store.

Lil Nas X purchased a license to use that beat and then

added lyrics to create “Old Town Road.” He later recorded

a remixed version of the song featuring Billy Ray Cyrus.

We’re going to use “Old Town Road” to demonstrate

some of the potential issues involved when using

preexisting music.

Musicians should be careful in using preexisting

music to ensure they do not infringe their fellow

creators’ copyrights. This includes understanding

what rights musicians have in their own works,

how to license someone else’s works when

creating new works (including sampling, mashups,

remixes, covers, and interpolations), the scope

and limitations of those licenses, and some legal

exceptions to consider.

As a starting point, it is important to understand the

dierence between a musical work and a sound recording.

In short, a musical work is a song’s underlying composition

created by a songwriter or composer along with any

accompanying lyrics. A sound recording is a series of musical,

spoken, or other sounds xed in a recording medium, such

as a CD or digital le. For more information on musical work

and sound recording copyright owners’ rights, see Musical

Works, Sound Recordings & Copyright.

The following songs contain samples of other songs:

• Avicii’s “Levels” contains a sample of

“Something’s Got a Hold on Me” by Etta James

• Sam Hunt’s “Hard to Forget” contains a sample of

“There Stands the Glass” by Webb Pierce

• Ye’s (aka Kanye West’s) “Stronger” contains a sample of

“Harder, Better, Faster, Stronger” by Daft Punk

Note that samples do not have to come from

recorded music. For example:

• Charli XCX’s “Boys” samples the coin sound from the

Super Mario Bros. video game

• Living Colour’s “Cult of Personality” samples famous

speeches, including President Kennedy’s 1961

inauguration speech

• Billie Eilish’s “Bad Guy” samples the audio from a

pedestrian crosswalk signal

Sampling, Mashups, and Remixes

Sampling involves taking part of an existing sound recording

and incorporating it into a new work. For example, a piano

line or guitar ri from one recording might be used as a

melody in a new recording (instead of re-recording the

melody or creating a new melody), or the audio from drums

or a piano might be incorporated into a new sound recording

as the rhythm or melody of the new work.

YoungKio sampled the banjo and other instruments

from “34 Ghosts IV” when creating the beat that became

“Old Town Road.”

Musical Works

A musical work is a song’s underlying

composition created by a songwriter

or composer along with any

accompanying lyrics.

The copyright owner of a musical work

has the rights to make and distribute

copies of it, publicly perform or display

it, and make derivative works from it

(including interpolations, remixes, or even

videos using the musical work). Anyone

else who wants to do these things must

either get a license from the copyright

owner, use a statutory license, or have an

exemption apply, like fair use. A statutory

license is created by operation of law, not

by contract. With a statutory license, a

their work, as long as the licensee complies

with applicable legal requirements.

When you record a song,

you may be creating

two works that can be

protected by copyright

law: a musical work

and a sound recording.

These works are subject

to dierent rules under

the Copyright Act and

are commonly owned

and licensed separately.

For both musical works

and sound recordings,

begins the moment

the work is ﬁxed—

for example, when a

song is recorded in an

audio ﬁle or when a

musical work is notated

in sheet music or a

digital ﬁle.

Musical Works,

Sound Recordings

& Copyright

A remix involves taking an existing sound recording and

adding, changing, or removing sounds to make a new

version of the work.

A mashup involves combining two or more samples of sound

recordings into a new work. This may include merging the

vocals from one song with the instrumentals from a second

song or blending multiple instrumental or vocal samples to

create new melodies or harmonies as part of a new work.

In many cases, samples, remixes, and mashups will infringe a

or qualies for a legal exception or limitation, such as fair use.

Because samples, remixes, and mashups all use preexisting

sound recordings, not only are those recordings themselves

implicated, but the underlying musical works they embody

may be implicated as well. Consequently, licenses from both

the sound recording and musical work copyright owners—

which in many cases can be dierent—may be necessary.

When Billy Ray Cyrus’s vocals were added to “Old Town

Road,” among other changes that were made, this

created a remix called “Old Town Road – Remix.”

For example, if someone combined lyrics or music from

Brooks & Dunn’s “Boot Scootin’ Boogie” with “Old Town

Road,” this would be a mashup.

Interpolations

An interpolation involves taking part of an existing musical

work (as opposed to a sound recording) and incorporating it

into a new work. While sometimes confused with sampling

a sound recording, interpolating a musical work is dierent

because it does not involve using any of the actual audio

sounds contained in a preexisting recording. Instead, new

audio is recorded.

In many cases, similar to samples, interpolations may

infringe a copyright owner’s exclusive rights. However,

unlike samples, interpolations only implicate the preexisting

musical work, which means that only a license from

that musical work’s copyright owner may be necessary.

Permission from the copyright owner of a preexisting sound

recording is not necessary when interpolating a musical

work, regardless of how similar the new recording may be

to an old recording. This is because, under U.S. copyright

law, the exclusive rights in sound recordings do not extend

to making independently recorded “sound alike” recordings.

Note that re-recording the entirety of an existing song would

create a cover recording (discussed below).

The following songs contain interpolations:

• Nas’s “I Can” interpolates Beethoven’s “Für Elise”

• Flo Rida’s “Right Round” interpolates Dead or Alive’s

“You Spin Me Round (Like a Record)”

• Ariana Grande’s “7 Rings” interpolates Rodgers and

Hammerstein’s “My Favorite Things”

Covers

A cover (also called a “cover song” or “cover recording”)

is made when a previously recorded musical work is

re-recorded into a new sound recording. Some covers seek

to imitate the earlier recording, while other covers apply

dierent interpretations, styles, and sounds and may create

new arrangements. Similar to an interpolation, only the

musical work being re-recorded is implicated when creating

a cover.

To make a cover, you can either secure a license from the

musical work copyright owner or secure what is known as

a statutory (or compulsory) mechanical license. A statutory

mechanical license operates by law, which means that a

musical work copyright owner cannot normally say “no,” if

all legal requirements are satised. This license can only be

obtained for nondramatic musical works. Complying with

this license can be complicated. There are several specic

rules that need to be carefully followed, including rules

on who is eligible for the license, how much money (or

“royalties”) must be paid to use the license, and other details.

Some examples of popular covers include:

• “All Along the Watchtower” by Jimi Hendrix

(original by Bob Dylan)

• “Hallelujah” by Je Buckley (original by Leonard Cohen)

• “I Will Always Love You” by Whitney Houston

(original by Dolly Parton)

If you secure a statutory mechanical license, you are allowed to

make a musical arrangement of the work, but the arrangement

cannot “change the basic melody or fundamental character of

the work.”

Remember that recording a cover involves separate rights from

performing a cover—in most (although not all) cases, musical

works’ public performance rights are licensed by performance

rights organizations. For more information on musical work

performance royalties see: How Songwriters, Composers, and

Performers Get Paid. Note also that dierent or additional

licenses may be needed to create and disseminate covers

captured on video (as opposed to audio-only recordings).

A note on the Music Modernization Act:

Importantly, 2018’s Music Modernization Act (the “MMA”)

updated the statutory mechanical license system for

musical works oered digitally (called “digital phonorecord

deliveries” or “DPDs”), including downloads and interactive

streams. The MMA also amended, but retained, the

statutory mechanical license for musical works for non-

DPD phonorecords (e.g., CDs, vinyl). To learn more about

the MMA, including how songwriters and publishers get

paid when their musical works are used on download

or interactive streaming services, please see the Oce’s

MMA webpage.

For more information on the statutory mechanical license

see: Circular 73A (for the statutory mechanical license

for physical uses) and Circular 73B (for the statutory

mechanical license for digital uses).

Beat Stores

While online beat stores can be attractive to artists early

in their careers, it is critical to understand what you are

agreeing to when you use one of these services. A beat

store typically oers the same beat (audio recordings and

possibly music compositions) at dierent price points,

each with its own distinct contractual arrangement. While

dierent headline descriptions like “basic,” “premium,”

“unlimited,” “license,” “lease,” “sale,” or “exclusive” may be

used, in many cases these are all licenses with dierent

scopes that dene what you are allowed to do with the

beat, as well as related responsibilities. Though the

terminology is not always the same (even within the same

beat store), typically, the lowest priced option has the most

use restrictions and the highest price has the fewest.

Some common types of limitations in these agreements

may include:

• restrictions on what formats the beat can be used in

(e.g., MP3 or WAV);

• restrictions on how the beat can be used or what rights are

involved (e.g., to incorporate the beat into a music video or

to publicly perform the work);

• restrictions on the number of sales, downloads, streams,

or views; and

• a date on which the agreement expires.

Note that most of these agreements are “non-exclusive,”

meaning that the beat can be oered to and used by multiple

artists at the same time. In some cases, an “exclusive”

agreement may be oered, which typically means that you

are the only one who can use the beat during the term of the

agreement for the uses specied in the agreement. Exclusive

licenses are less likely to have format or use restrictions or

expiration dates—but they can.

Important Considerations When Using Beat Stores

Do the terms of the agreement t your needs?

Musicians should carefully read and understand any

contract before agreeing to its terms. Even though beat store

licenses are typically in the form of internet “click-through”

agreements, reviewing these carefully can be just as important

as reviewing a recording contract or publishing deal. When

using a beat store, it is important to consider whether the

terms of the agreement t your needs. Agreements described

with words like “premium” or “unlimited” may still have

important restrictions relevant to the uses you have in mind.

Even “free” beats are often subject to license terms.

There may also be cases where you may think you are “buying” a

beat, but instead of obtaining full ownership of it, you might only

be purchasing permission to use it temporarily in limited ways.

If your license term ends, you may be left with a recording that

cannot be exploited.

In sum, care should always be taken to review the full

agreement, as descriptions are unlikely to tell the whole story.

Even agreements from the same beat store that use the

same headline descriptions can have signicantly dierent

restrictions when examined more closely.

Does the beat contain samples or interpolations?

It is important to know whether the beat you are considering

licensing contains a sample or interpolation, and whether the

sample or interpolation needs to be “cleared” (i.e., licensed)

from the original creator. In some cases, the producer of the

beat may not have cleared the prior work’s use in the beat,

and in other cases, even if they have, their agreement with

the original creator may not cover your use.

Do the agreement’s terms include a right for the beat’s

producer to collect royalties?

It is not uncommon for a beat store agreement to

provide a beat producer with rights to a certain percentage

of royalties for certain uses of the new work using the

licensed beat, even when selling exclusive rights to a beat.

This percentage, sometimes called “points,” ensures that

the beat’s producer will share in the new song’s success if it

becomes a breakout hit.

Lil Nas X originally licensed the beat for “Old Town

Road” for $30, but once the use of the song exceeded

the terms of that agreement, those terms were

successfully renegotiated with the beat’s producer,

YoungKio. Other artists who have had breakout hits

using beat store beats have been less successful in

negotiating new license terms with beat producers.

While Lil Nas X was able to secure licenses from both

YoungKio (for the beat) and Nine Inch Nails (for the use

of the sample of “34 Ghosts IV” used in the beat), an

uncleared sample has the potential to cause signicant

problems.

Fair Use, the Public Domain,

and Other Considerations

Fair Use

In some cases, sampling, interpolating, or creating a

mashup may be considered a “fair use” and not copyright

infringement. Fair use is a legal doctrine that promotes

freedom of expression by permitting the unlicensed use of

court determines whether a use is a fair use, it will evaluate

at least the following four factors:

the purpose and character of the use, including whether

such use is of a commercial nature or is for nonprot

educational purposes;

the nature of the copyrighted work (including

considering whether the work is creative vs. factual or

published vs. unpublished);

the amount and substantiality of the portion used in

relation to the copyrighted work as a whole; and

the eect of the use upon the potential market for or

value of the copyrighted work.

Courts evaluate fair use claims on a case-by-case basis, and the

outcome of any given case depends on a fact-specic inquiry.

It’s always fair use if I sample seven seconds or less of a song.

FICTION! Because fair use is evaluated on a case-

by-case basis, there is no formula to ensure that a

predetermined percentage or amount of a work—

or specic number of words, lines, pages, or copies—

may be used without permission.

If I use a disclaimer that restates the fair use law or says

“no copyright infringement intended,” then I cannot be

found guilty of copyright infringement.

FICTION! Copyright infringement does not require

proof of intent. The disclaimers are an internet myth.

To learn more about fair use, visit the Copyright

Oce’s Fair Use Index, which tracks a variety of

judicial decisions to help both lawyers and non-

lawyers better understand the types of uses courts

have previously determined to be fair—or not fair.

But remember, only a court can determine whether a

certain use is a “fair use.”

Fact or Fiction?

Public Domain

A work is in the “public domain” if it is no longer under

for copyright protection. Works in the public domain

may be used freely without the permission of a copyright

owner—you do not need to secure a license to use them.

But be careful to remember that musical works and sound

recordings are dierent works. If you want to make a copy,

interpolation, or performance of a musical work in the

public domain in the United States—for example, Grieg’s

“In the Hall of the Mountain King”—you can. But if you

want to make a copy or sample of the Ospring’s sound

recording of “In the Hall of the Mountain King,” you could

not do so without permission, because the Ospring’s

sound recording is not in the public domain. Also, remember

that a work may be in the public domain in some countries

but still protected by copyright in other countries.

Common Musical Building Blocks

Nobody can prevent you from using common building

blocks such as scales, chords, or arpeggios. For example,

even though Jimi Hendrix was known for using the “Hendrix

Chord” (a dominant 7th chord with a sharp 9th), any other

musician can use that chord in their songs. Similarly, short

musical phrases would not be protected by copyright, even

if other elements of the song are protected.

Other Concepts

Certain other copyright concepts may allow you to use

preexisting musical works or sound recordings without

permission. This handout only discusses a few, more

common topics.

For more information on copyright

and music, see the following

• What Musicians Should Know about Copyright

• Musical Works, Sound Recordings & Copyright

• How Songwriters, Composers, and Performers Get Paid

• Music Modernization Act Educational Materials

United States Copyright Oce 101 Independence Avenue SE

Library of Congress Washington, DC 20559-6003 copyright.gov

Revised: December 2021