Sample Clearance: A Reference for Musicians

Do I need to clear this sample?

If you copied audio from someone else's record, yes — and you need two permissions, not one. A released track contains two copyrights: the musical work (the song) and the sound recording (the master). Copying a snippet of a record reproduces both, so you need a licence from the owner of the recording, usually a label, and a licence from the owner of the composition, usually a publisher. There is no length below which sampling is automatically safe: the widely repeated "under seven seconds" or "under three notes" rules do not exist in any statute, and the one legal doctrine that resembles them — de minimis copying — is applied inconsistently and, in the Sixth Circuit, has been rejected for sound recordings outright. Replaying a part yourself instead of lifting the audio removes the recording claim, because 17 U.S.C. §114(b) says the sound recording right "do[es] not extend to the making or duplication of another sound recording that consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording" — but it leaves the composition claim entirely intact. The §115 compulsory licence that lets you record a cover does not apply, because a sample is not a cover. Clearance is negotiated privately, rates are not published, and there is no statutory ceiling on what a rights holder can ask, including "no". Budget the time before you budget the money: the answer often takes months, and it is frequently silence.

This page is a reference, not legal advice. It describes what the statutes, regulations and court decisions say; it does not tell you what to do about your track.

Two clearances, and why one is not enough

Under 17 U.S.C. §106 the owner of each copyright holds the exclusive rights to reproduce the work and to prepare derivative works from it. A sample lifted from a commercial release touches both copyrights at once:

• The sound recording — cleared by the owner of the master, normally the label. The licence is generally called a master use licence.
• The musical work — cleared by the publisher or publishers of the song. The licence is generally called a sample use licence on the publishing side.

The Copyright Office states the underlying distinction directly: "A registration for a musical composition covers the music and lyrics (if any) embodied in that composition, but it does not cover a recorded performance of that composition. Likewise, a registration for a sound recording of a performance does not cover the underlying musical composition" (Circular 56A).

The clearest illustration of what happens when you get one and not the other is Newton v. Diamond, where the Beastie Boys sampled six seconds — three notes over a held C — of James Newton's flute performance of his own composition "Choir". The Ninth Circuit's opening paragraph is the whole lesson: the defendants "obtained a license to sample the sound recording of Newton's copyrighted performance, but they did not obtain a license to use Newton's underlying composition, which is also copyrighted" (Newton v. Diamond, 388 F.3d 1189 (9th Cir. 2004)). They won — but only because the court held the use of the composition was de minimis, on summary judgment in the district court and again on appeal.

A master use licence with no publishing licence is not half-cleared. It is uncleared, with a receipt.

Note also that the two sides can be owned by different numbers of people. One record has one master owner in most cases; the song underneath it may have four writers across three publishers, and every one of them has to say yes.

What interpolation and replays change

Interpolation means re-recording a melodic, harmonic or lyrical element of an existing song into your own track, without using the original audio. Replay (or "re-play", "replacement") means recreating the sampled part in the studio so that it sounds like the record without being the record.

Both do the same thing legally: they remove the sound recording claim and leave the composition claim. §114(b) is explicit that the sound recording right "do[es] not extend to the making or duplication of another sound recording that consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording."

Two things follow.

A replay does not make you clearance-free. You still need the publishing licence, and the publisher's negotiating position is barely weakened by the replay — the melody is the thing they own.

A replay does change your leverage against the label. If the label refuses or asks an impossible number, a replay removes them from the conversation entirely. This is why replay services exist and why a replay is often commissioned after a master-side negotiation stalls, not before it starts. The Sixth Circuit made the same observation from the other direction when it noted that "if an artist wants to incorporate a 'riff' from another work in his or her recording, he is free to duplicate the sound of that 'riff' in the studio," and that this caps what a master owner can realistically charge: "The sound recording copyright holder cannot exact a license fee greater than what it would cost the person seeking the license to just duplicate the sample in the course of making the new recording" (Bridgeport Music v. Dimension Films, 410 F.3d 792 (6th Cir. 2005)).

The §115 compulsory licence does not help. It is often assumed that because you can record a cover without permission, you can interpolate without permission. You cannot. §115 covers making and distributing phonorecords of a nondramatic musical work already distributed to the public, and it permits "making a musical arrangement of the work to the extent necessary to conform it to the style or manner of interpretation of the performance involved" — but the arrangement "shall not change the basic melody or fundamental character of the work, and shall not be subject to protection as a derivative work under this title, except with the express consent of the copyright owner" (17 U.S.C. §115(a)(2)). A new song containing eight bars of an old one is not a rendition of the old song; it is a derivative work, and §115 does not reach it.

De minimis, and why you cannot build a release on it

De minimis non curat lex — the law does not concern itself with trifles — is a real doctrine. It is also, for sampling, the least reliable thing in this article.

The Ninth Circuit applies it to both copyrights. In Newton, the court set out the test: "a use is de minimis only if the average audience would not recognize the appropriation." It affirmed summary judgment for the Beastie Boys on that basis for the composition. Twelve years later, in VMG Salsoul v. Ciccone, it extended the doctrine to sound recordings, holding that a 0.23-second horn hit sampled into "Vogue" was not actionable, and rejecting the contrary rule head-on: "we find Bridgeport's reasoning unpersuasive. We hold that the 'de minimis' exception applies to actions alleging infringement of a copyright to sound recordings" (VMG Salsoul, LLC v. Ciccone, 824 F.3d 871 (9th Cir. 2016)).

The Sixth Circuit does not, for sound recordings. Bridgeport read §114(b) as conferring on the recording owner the exclusive right to "sample" his own recording, and adopted a rule with no de minimis threshold at all. Its formulation is a single sentence: "Get a license or do not sample." The court defended the rule on administrability — "the value of a principled bright-line rule becomes apparent" — and on the ground that "sampling is never accidental … When you sample a sound recording you know you are taking another's work product."

The conflict is open and was created deliberately. The Ninth Circuit said so in terms: in declining to follow Bridgeport it acknowledged it was taking "the unusual step of creating a circuit split," and weighed that cost explicitly before doing it. The Supreme Court has not resolved it. Which rule applies to you therefore depends on where a suit is brought — and a rights holder chooses the forum, not you.

Outside the US the analysis is different again. In the EU, the Court of Justice held in Pelham GmbH v. Hütter (Case C‑476/17, judgment of 29 July 2019) that taking even a very short sound sample from a phonogram is in principle a reproduction "in part" within the meaning of Article 2(c) of the InfoSoc Directive, but that it is not a reproduction where the sample is included in a modified form unrecognisable to the ear (CJEU case file, C‑476/17). "Unrecognisable to the ear" is a narrower and differently-shaped exception than the US de minimis test, and it is applied by national courts case by case. Anywhere else, assume nothing transfers.

De minimis is a defence you raise after you have been sued, not a permission you rely on before you release. Every artist who successfully invoked it did so at the end of years of litigation.

Who to approach, and in what order

1. Identify what you actually sampled. Track title, artist, release, and the exact timecode and duration of the portion used. If you cannot name the source, you cannot clear it, and "I found it in a pack" is not an answer unless you have the pack's licence (see below).

2. Identify the master owner. For a commercial release this is the label named in the ℗ line, or its current owner after catalogue sales. Larger labels have a sample clearance department; independents may route it through the founder's inbox.

3. Identify every publisher on the composition. Search the collecting societies' public work databases and the relevant mechanical licensing body's search. Expect split ownership, and expect at least one share to be controlled by an administrator rather than the writer.

4. Approach the publishing side first, or both at once — but never only the label. Publishers are usually faster, and a publishing approval is useful leverage; a master approval on its own is worthless if the song side refuses. Where the same company owns both — a label with an affiliated publisher, or an artist who self-releases and self-publishes — you have a one-stop, and the process collapses into a single negotiation. One-stops are the reason independent and library sources are often more practical than famous ones.

5. Expect silence. No rights holder is obliged to respond, negotiate or explain a refusal, and there is no compulsory licence for sampling anywhere discussed here.

What a clearance request must contain

Requests that omit these get ignored, because the recipient cannot price the deal without them.

• The source: title, artist, label, release, ISRC if you have it.
• The portion: exact timecode in and out, duration, what element (drum bar, vocal phrase, horn stab), how many times it repeats, and whether it is looped throughout.
• Your track: title, artist, total duration, a private stream link of the finished master, and — this is the one people forget — a version with the sample soloed or an A/B so the recipient can hear precisely what was taken.
• The release plan: date, formats, territories, whether it is a single or an album track, whether there is a video, and whether it will be used in advertising or sync.
• Expected scale: honest, and low if that is the truth. A rights holder prices a hundred-thousand-stream indie release differently from a major-label single.
• The split you propose, on both sides, and any prior clearance already granted.
• Who you are and who to invoice.

Send it before the release date is fixed. Clearance timelines are commonly measured in weeks to months, and there is no mechanism to accelerate them.

What the deals look like

Structurally, sample deals combine some of the following. Which combination you get is negotiated, not standard.

Upfront fee. A one-time payment, sometimes described as an advance against a royalty and sometimes as a flat fee against nothing. On the master side this is the usual shape.

Backend royalty on the recording. A percentage of your net receipts from the recording, or a per-unit rate, payable to the master owner. Sometimes structured as a rollover: a fixed fee covering the first n units, with a further fee due at each threshold.

Publishing share. On the composition side the usual currency is not cash but ownership: a percentage of the writer's and publisher's share of the new song, assigned to the sampled song's writers and publishers in perpetuity. This is why an uncleared sample discovered later can cost more than money — it can cost you a share of everything the song earns forever, including performance and mechanical income you never see directly.

Buyout. A single payment extinguishing all further obligations, with no backend and no publishing share. Common for library and independently-owned material; rare for well-known catalogue.

Most-favoured-nation (MFN) clauses. Very common. An MFN says that if you give any other rights holder in the same track better terms, this rights holder automatically gets the same. The practical effect is that one party's demand sets the floor for everyone, and you cannot settle cheaply with one side and expensively with the other. Negotiate as though every number will become public to the other participants, because under MFN it effectively does.

Credit and approval. Deals routinely dictate credit wording in metadata and liner notes, and sometimes approval over artwork, video or sync use.

On ranges: there is no published rate card, and anyone quoting one is guessing. Sample clearance is a private, freely negotiated market with no statutory rate, no regulated ceiling, and no obligation on any party to disclose terms; deals routinely carry confidentiality clauses. The nearest public benchmark from an authoritative source is in an adjacent free-market licence: the U.S. Copyright Office observed of synchronisation licensing that "musical work and sound recording owners are generally paid equally—50/50—under individually negotiated synch licenses" (Copyright and the Music Marketplace, 2015). That rough parity between the two sides is a reasonable prior for sample clearance too, and it is why MFN clauses bite. It is not a price. We are not going to invent one.

What happens if you release without clearance

Six things, in roughly the order they arrive.

Delivery rejection. Distributors and stores run content-recognition checks on ingest. A recognised sample can stop a release before it goes live, which is the cheapest outcome available to you.

A Content ID claim. On YouTube, a match against a registered reference produces a claim whose consequences are set by the claimant: YouTube's documentation lists them as blocking the video from being viewed, monetising it "by running ads against it and sometimes sharing revenue with the uploader," or tracking its viewership — and notes that "any of these actions can be geography-specific" (YouTube, How Content ID works). The default practical result is that someone else collects the revenue from your video.

A takedown. Under 17 U.S.C. §512(c), a service provider that responds "expeditiously to remove, or disable access to, the material that is claimed to be infringing" on receipt of a compliant notice keeps its safe harbour. The economics of that provision mean platforms remove first and adjudicate later.

Withdrawal by your distributor. Distribution agreements generally warrant that you hold all necessary rights and indemnify the distributor if you do not. An uncleared sample is a breach of that warranty.

Litigation exposure. §504 gives the owner either actual damages plus the infringer's profits, or statutory damages of "not less than $750 or more than $30,000" per work, rising to "not more than $150,000" where the infringement is proved willful; §505 lets the court award attorney's fees to the prevailing party. Deliberate sampling is not an easy case in which to argue innocence: Bridgeport observed that "sampling is never accidental … When you sample a sound recording you know you are taking another's work product."

A retroactive clearance on the other side's terms. This is the most common real-world outcome, and it is the expensive one. Once the track is out and earning, you have no leverage, and the price is set accordingly — commonly a large share of the composition plus the accrued income.

A civil claim must be commenced "within three years after the claim accrued" (§507(b)), which in practice means an uncleared track does not become safe on any schedule you can predict, because each new act of exploitation raises the question again.

Sample replacement and re-recording as the alternative

If clearance fails or costs more than the track can carry, you have three routes.

Replay the part. Hire a player or programme it, match the arrangement, and re-record. §114(b) removes the master claim. The composition claim remains, so this only helps if the publishing side has approved or if what you replayed is not itself protected expression.

Rewrite the part. Change the melody and harmony enough that you are no longer reproducing protectable expression. This is a judgement call with no bright line, and "changed a few notes" has never been a defence.

Replace it. Cut the sample and build the equivalent from material you own or have licensed — the only route with no residual legal question.

Whichever you choose, do it before release. Replacing a sample after a track is live means a new master, a takedown and redelivery, and a set of downstream metadata problems on top of the legal ones.

Royalty-free and licensed sample libraries: what the licences actually permit

"Royalty-free" means no per-use royalty is payable. It does not mean unrestricted, and it does not mean you own what you downloaded.

Splice's terms are representative and unusually explicit. Sounds "are licensed, not sold, to you." The grant is "a non-exclusive, non-transferable, perpetual right to use Sounds you obtain … in combination with other sounds in music productions to create new recordings … for commercial and non-commercial purposes," and a parallel grant covers use in "Creative Works" such as games, film, television and social video. The terms then state plainly: "You (and/or any applicable third-party contributors or artists engaged by you in connection with the New Recording) will own any original contributions made to the New Recording that are not comprised of Sounds … For the avoidance of doubt, you will not own the Sounds" (Splice Terms of Use, §3.1.1.1–3.1.1.2).

The prohibitions matter as much as the grant. Under §3.1.1.3 you may not "sublicense the Sounds in isolation as sound effects, loops, or as source material for any other form of sample (even if you modify the Sounds)"; may not "redistribute Sounds in new sample packs"; may not "re-record or re-produce the Sounds"; and may not "use the Sounds as source or training material for generative or other types of artificial intelligence models." Splice also issues a per-sound "Certified License" that you can produce as evidence "for purposes of evidencing your download to a third party (e.g. distributors, labels, audiovisual media companies)" — which is the artefact a distributor will ask for if a library sound triggers a content match.

Four practical consequences.

• A library licence is not a clearance for third-party content. It covers what the library owns. If a pack contains an uncleared sample of a commercial record, the library's licence does not cure that, and the terms will not indemnify you for it. Buy from sources that state where their material came from.
• You cannot stem a library sound out of your own release and resell it. The "no sublicensing in isolation" clause is standard across the sector.
• Stems and multitracks released for remix competitions are not sample libraries. They come with their own, usually narrow, terms limited to a specific contest and period.
• Keep the licence. Certified licences, order confirmations and pack terms are the documents that resolve a delivery block in a day rather than a month.

Terms differ between vendors and change over time; read the licence for the pack you actually used, on the date you used it.

What AI stem separation changes, and what it does not

Source-separation tools now extract an isolated drum, bass or vocal stem from a finished stereo master with results that were not achievable a few years ago. This has changed the practice of sampling substantially. It has not changed the analysis.

Legally, an extracted stem is still the sound recording. §114(b) defines the reproduction right in a sound recording as the right to make copies "that directly or indirectly recapture the actual sounds fixed in the recording." A separated vocal is a recapture of the actual sounds fixed in the record — it is a processed copy, not an independent fixation. The exclusion for imitation applies only to a recording "that consists entirely of an independent fixation of other sounds", which a separated stem is not. Separating a record does not make its parts unowned, and it does not convert a sample into a replay.

And an isolated stem strengthens, rather than weakens, the case against you. In the Ninth Circuit the de minimis test asks whether "the average audience would not recognize the appropriation" (Newton). A cleanly separated vocal or hook is more recognisable than the same passage buried in a full mix, not less. In the Sixth Circuit the question does not arise: "Get a license or do not sample" (Bridgeport).

What is genuinely unsettled is everything downstream of that. No US court has ruled on a case framed specifically around AI source separation; the U.S. Copyright Office's ongoing work on copyright and artificial intelligence addresses training, authorship and disclosure rather than separation of existing masters (U.S. Copyright Office, Copyright and Artificial Intelligence). Whether separation itself constitutes an infringing intermediate reproduction, how detection systems treat separated content, and how the analysis interacts with fair use are open questions. Nothing about that uncertainty helps a release: the copying you do downstream of the separation is copying either way.

Pre-release checklist

Work through this before your release date is announced, not after.

• [ ] Every sampled element in the project is listed: source track, artist, label, timecode in/out, duration, and how many times it appears.
• [ ] For each, you have identified the master owner and every publisher on the composition, with contacts.
• [ ] A written request has gone to both sides, containing the portion, the A/B, the release plan and the proposed split.
• [ ] You have written confirmation — not a verbal yes, not an encouraging email thread — from every rights holder on both sides.
• [ ] Each licence states: territory, term, formats and media covered, whether sync and advertising are included, the fee and any rollover thresholds, any publishing share, credit wording, and whether MFN applies.
• [ ] The publishing share agreed on the sample side is reflected in your split sheet and in your registrations with your society and mechanical licensing body, in the same percentages.
• [ ] Every library or pack sound in the track is traceable to a licence you still hold, with the certified licence or receipt saved alongside the project.
• [ ] Nothing in the project came from an unlabelled folder, a YouTube rip, a leaked stem, a source-separation output of a commercial record, or a pack whose provenance you cannot state.
• [ ] Anything unclearable has been replayed, rewritten or removed — and the delivered master is the version that reflects that.
• [ ] The credits and metadata you deliver name the sampled writers as required by the licences.
• [ ] All of the above is in one folder with the project, so that a delivery block can be answered the same day.

Every remedy in this article gets more expensive as the release gets closer, and the cheapest one — replacing the sample — is only available before the master is final.

Sources

• 17 U.S.C. Chapter 1 (§106 exclusive rights; §114(b) limitation of the sound recording right to recapture of the actual sounds fixed, and the exclusion for independent fixations that imitate or simulate; §115(a)(2) musical arrangement under the compulsory licence) — https://www.copyright.gov/title17/92chap1.html
• 17 U.S.C. Chapter 5 (§504(c) statutory damages; §505 attorney's fees; §507(b) three-year limitation; §512(c) expeditious removal on notification) — https://www.copyright.gov/title17/92chap5.html
• U.S. Copyright Office, Copyright Registration of Musical Compositions and Sound Recordings, Circular 56A (a registration for one does not cover the other) — https://www.copyright.gov/circs/circ56a.pdf
• U.S. Copyright Office, Compulsory License for Making and Distributing Phonorecords Other Than Digital Phonorecord Deliveries, Circular 73A (scope of the §115 licence) — https://www.copyright.gov/circs/circ73a.pdf
• Newton v. Diamond, 388 F.3d 1189 (9th Cir. 2004) (sampling "requires a license to use both the performance and the composition"; defendants licensed the recording but not the composition; "a use is de minimis only if the average audience would not recognize the appropriation") — https://cdn.ca9.uscourts.gov/datastore/opinions/2004/11/09/0255983.pdf
• Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005) ("Get a license or do not sample"; bright-line rule under §114(b); a licence fee is capped by the cost of duplicating the sample in the studio; "sampling is never accidental") — https://storage.courtlistener.com/pdf/2005/06/03/bridgeport_music_inc_v._dimension_films.pdf
• VMG Salsoul, LLC v. Ciccone, 824 F.3d 871 (9th Cir. 2016) ("we find Bridgeport's reasoning unpersuasive. We hold that the 'de minimis' exception applies to actions alleging infringement of a copyright to sound recordings"; the court's acknowledgment that it was "creating a circuit split") — https://cdn.ca9.uscourts.gov/datastore/opinions/2016/06/02/13-57104.pdf
• Court of Justice of the European Union, Pelham GmbH and Others v. Ralf Hütter and Florian Schneider-Esleben, Case C‑476/17, judgment of 29 July 2019 (a sound sample taken from a phonogram is in principle a reproduction in part; not so where included in a modified form unrecognisable to the ear) — https://curia.europa.eu/juris/liste.jsf?num=C-476/17
• U.S. Copyright Office, Copyright and the Music Marketplace (2015) (synchronisation licensing occurs in the free market; "musical work and sound recording owners are generally paid equally—50/50—under individually negotiated synch licenses") — https://www.copyright.gov/policy/musiclicensingstudy/copyright-and-the-music-marketplace.pdf
• YouTube Help, How Content ID works (a match produces a claim that blocks, monetises or tracks the video, at the claimant's election, and may be geography-specific) — https://support.google.com/youtube/answer/2797370
• Splice, Terms of Use (§3.1.1.1 grant for New Recordings; §3.1.1.2 Creative Works; §3.1.1.3 prohibited uses, including no sublicensing of sounds in isolation, no redistribution in new packs, no re-recording, and no use as AI training material; §3.1.1 Certified License) — https://splice.com/terms
• U.S. Copyright Office, Copyright and Artificial Intelligence (the Office's AI work programme) — https://www.copyright.gov/ai/