What, if anything, you can sample and get away with....

"I've made this piece of music and it uses just uses the bass line from Queen's "Under Pressure". Is that okay?"

The sampling phenomenon has thrown up more questions and myths than Ancient Greece. James Brown must have made millions from his whooping over the years, right? And surely, Dan Hartman (who penned Instant Replay) must have also made a packet from Black Box's Ride On Time? And then there's the recent Björk vs Scanner case; word has it that she had to burn five zillion copies of her album Post, in some eerie Icelandic burial ritual, and that Scanner is now living in a gold-plated villa in St Tropez.

All nonsense, I'm afraid.

There are two facts to remember from this article, even if you don't make it to the end of the page.

Fact 1: You cannot sample anything from anybody else and use it commercially without clearance.

Fact 2: Getting samples cleared for commercial use does not always cost you an arm, a leg and five zillion copies of your latest album.

The myths exploded

On the other side of the coin, lack of permission can cause a huge stink. Representatives of telephone-techno bod Scanner certainly didn't appreciate Björk's lifting a snatch from one of his recordings for her album, Post. Following the ensuing row between them and One Little Indian, all initial copies of Post were reported to have been withdrawn from circulation and an amended, Scanner-sample-free version produced - at far greater cost to One Little Indian than clearing the sample in the first place.

The ease of clearing samples and the costs involved vary considerably, but there are organisations in the UK that can help. One is the Mechanical Copyright Protection Society (MCPS), the licensing body for the recording of musical works. It set up a unit called the Sample Clearance Department in 1994, as a result of MCPS members' concern over sample 'piracy'. They will help you with sample clearance, legal hassles and provide copyright information on any particular track. Most of the samples they investigate are willingly brought to their attention by record companies or publishers.

What exactly can you get away with when sampling copyright music or speech soundbites?
"Absolutely nothing. And it doesn't matter how small [the sample is]. If you are attempting to sample a piece of audio that has a copyright, you are breaking the law if you publish it yourself."

So what about all the James Brown uses in the late '80s? Surely most of those artists got away with it then?
"At that time, many companies in the UK hadn't cottoned on to the sampling laws. The samples were probably not cleared by the artists but at the same time, the copyright owners weren't aware of exactly how much they could do. Things are very much more different now. Companies are more aware of the sampling laws."

What about if the samples are heavily disguised?
"It's still best to get clearance. If the sample is discovered and it can be proved in court that it is the original sample, you'll still be in trouble."

Does it make any difference how many pressings are being produced for retail with the uncleared samples on them?
"One of the many urban myths about sampling is that if you sell under 5,000 copies, no one will notice the uncleared samples, but this isn't the case. I recently dealt with a situation where a record company had released a promo run of around 400 copies of a track which had an uncleared sample. The copyright owner found out and refused permission for any further releases."

And what about bands without a record deal; do they need to get clearance too?
"If the recording is made commercially available in any way, then they'll need to get clearance."

So what action can be taken against the sampling artist if clearance hasn't been obtained?
"Whoever owns the copyright can take an injunction out and have all existing copies of the recording destroyed. They can also prevent any future releases and even sue for damages." Who gets in trouble, the artist or the record company? "It depends on the agreement between the two parties. In many cases, as part of his record contract, the artist has to tell the company exactly what samples have been used so that the record company can get clearance."

And how much does it cost to get sample clearance?
"This depends on the use of your recording. Obviously, if you are signed and are printing lots of CDs, clearance may cost somewhat more.

"If, on the other hand, you are using the recording for your own use, no problem. It is not always an expensive process.

"Most companies are happy for their copyrights to be sampled, especially since they know how much revenue it can generate. The majority of them are sensible about the rates they will charge you and there are even cases when the authorisation is free. The Dan Hartman case is a very good example of a sample being used and costing nothing."

What about sample CDs?
"In most cases there is no problem, as the samples will have been produced in a studio for the sole purpose of the sample CD. Look out for disclaimers on the packaging. Some say that it is okay to use the samples but you then have to get clearance from the sample CD manufacturers if you intend to use the samples commercially. Some offer total clearance but, once again, it's best to check."

Is there an organisation set up to monitor all releases?
"There is no such organisation and the MCPS do not listen to every recording: there simply isn't the time!"

"We don't want to be seen as the 'Sample Police', but we do employ a number of DJs and people from dance music who listen out for illegal samples. If something is brought to our attention then we'll act on it, but we don't actively go out to find samples."

And do the same rules apply with samples from the Internet?
"Yes. Some record companies have home pages, but if you download any sound bites from them, or any other part of the Internet that have a copyright then you can't legally use them in a commercial release. Always get permission or clearance in writing."

How exactly will the Sample Clearance Department help an artist?
"First, we can tell you who owns the copyright of the sound recording you want to sample and provide you with contact details of the owners.

"We can give helpful tips on how to approach these companies and the information you will have to provide when trying to get clearance. We also offer free advice on what your rights are and (if you don't want to be sampled) the remedies that are available.

"If you are an MCPS member, we will take legal action on your behalf against whoever has infringed your copyright.

"All these services are completely free of charge; the only thing we can't do is negotiate the clearance on your behalf, but at least you'll be in a better position to do it yourself."

So, what do I do now?

So that's the score: get clearance. The MCPS will put you in a better position to get clearance, but there are also companies like Diamond Time (which works for record companies such as Virgin) that actively get the clearance for you. They act as the middle-men if you like and, for a fee, obtain the clearance and give the advice you need as to whether you can 'get away' with a particular sample.

Of course, for those of us who only make music for ourselves, the sampling copyright issue doesn't effect us. We can sample anything and get away with it - as long as it's just the granny and the dog that hears it. But for anyone with commercial aspirations, the sampling issue must be taken seriously. If you are in this situation then you must check your source, and if you really must use a copyright sample then get clearance. Of course, you are more likely to get into trouble if you are making enough money to be sued. If you're George Michael then you may end up being the only person on the planet unable to use 'funky drummer', but them's the breaks.

The message for all of us is to sample creatively. Samples are building blocks to higher musical planes. As long as you create something new with your sample and don't just regurgitate your source, then you can be happy and also be less worried about the comebacks. Originality is always better than plagiarism...