Fair use is a provision in United States copyright law that allows for limited use of copyrighted material without permission from the copyright holder.

But when it comes to sampling, it’s difficult to know whether the usage is fair use or requires clearance.

This article will break down the confusion for producers who want to use copyrighted sound recordings in their work.

What is Fair Use in Copyright Law?

Fair use is a broad, unclear area of copyright law. However, there are four factors that courts use to determine whether a particular use is considered fair use.

1. The purpose of the use

Is the use commercial or educational? If the use is for commercial purposes, then it is less likely to fall within fair use guidelines.

2. The nature of the copyrighted work

What was the copyrighted work originally used? Was it for commercial purposes?

3. The amount and portion of the work used

How much of the copyrighted work is used in the derivative work?

4. The effect of the use on the potential market for or value of the copyrighted work

Does the new work affect the commercial value of the copyrighted material? Do they compete in any way?

Examples of Fair Use

The most common examples of fair use have nothing to do with creating new musical compositions.

Traditionally, fair use applies to using small portions of copyrighted material for educational purposes such as commentary, criticism, news reporting, teaching, and research.

The use of copyrighted material for parody or satire is also generally considered to be fair use.

But when it comes to music, the standards are different.

Sampling is a relatively new development in copyright law, and the courts have yet to adapt. What qualifies as fair use in one case may not apply to another.

How Does Fair Use Apply to Music Sampling?

In most circumstances, fair use is not an adequate defense for digital music sampling. 

Record labels will often seek statutory damages against artists who use unauthorized samples.

In the past, artists have argued the following fair use defense:

If the new work is transformative and does not financially compete with the original work, it has grounds for fair use. 

The length of a sample also contributes to its claim to fair use. For instance, a 2-second fragment is more permissible than a 15-second section.

Remember, none of these factors guarantee that a work is fair use. 

Ultimately, the determination of fair use is made on a case-by-case basis, and no hard-and-fast rule applies to every situation.

When to Obtain Sample Clearance

In most circumstances, you should aim to seek clearance for any copyrighted materials you use.

The music industry is infamous for going after producers for unauthorized samples.

This is especially true if you plan to distribute your work to the public. As soon as you release your work publicly, the copyright holders have a legitimate legal claim against you.

But if you have no intentions of distributing your work, then you have less to worry about. It’s hard to claim copyright infringement if there are no royalties or damages to pursue.

Should You Use Copyrighted Material in Your Beats?

All producers must decide for themselves whether they will use copyrighted materials or not.

The choice depends on the purpose of the work, how it will be published, and the risk you are willing to undertake.

When in doubt, always seek clearance from the copyright holder.

Alternatively, only use samples in the public domain or with royalty free licenses.