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What are the penalties if I do sample?
If you sample without permission, not only are you violating US Copyright laws, you may also be in violation of your own recording contract. If you are signed to a major label, most recording contracts contain several provisions called "Warranties," "Representations" and "Indemnification," in which you promise all the material on your album is original and agreeing that if your label are sued for copyright infringement, you agree to reimburse them for all their court costs, legal expenses and attorneys fees.
Similar "warranties" and "indemnification" clauses exist in the distribution agreements between your record company and the retail stores. Thus, when you violate a copyright by sampling it without consent, all the warranties point back to you as the artist. Therefore, if you sample illegally, be prepared to possibly shell out substantial sums of monies to not only the copyright owners, but also possibly to your label and their distributors and retail outlets.
In addition to these costly legal problems, the penalties for copyright infringement is harsh. If you sample somebody’s song without obtain proper clearances, you may be liable to the author for "statutory damages," which generally range from $500 to $20,000 for a single act of copyright infringement. If the copyright owner proves you willfully infringed their music, you can be liable for damages up to $100,000. The copyright owner also has the right to obtain an injunction against any further infringements, forcing you to cease your further violation of the copyright owner’s rights. There is also a destruction procedure, which forces the infringer to recall all the illegal copies of the song in the albums and destroy them. Finally, you may even face criminal charges from the U.S. Attorney’s Office if you engage in intentional copyright infringement. Therefore, before any artist tries to sample somebody’s copyrighted material to create a new song, no matter how small a portion of the song is used, they should secure the right to do so from the owners of the pre-existing copyrighted owners - the writers, publishers and/or the record companies.
(Reprinted with permission of Ruben Salazar, Esq.) |
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