Songwriting8 Min. Reading time

Sampling - not everything has to be new, right?

Written by Philipp Steigner

Computer with music program ready for sampling

Every song contains creativity, personal experience and motivation. But you don't always have to reinvent the wheel as a musician. Besides new melodies, rhythms and song structures, sampling is a popular approach in songwriting. Here, already written and recorded music is used for your own songs and either one-to-one or slightly modified. However, it is important that this is used in a completely new musical context and that all rights and consents are clarified. This is the only way to protect copyrights. But how does sampling work in detail and what should you pay attention to as a musician?

What does sampling mean in the music industry?

As already mentioned, sampling is the use of an already finished sound or music recording. Individual tones or sounds can also be musically sampled and thus used in your own songs. For example, instruments can be added to a song that were not actually played live or in the studio. Digitizing a song also gives you the opportunity to expand it technically, add new tones and melodies, or sometimes even breathe new life into entire song parts.

Sampling has been popular for many years and often incorporates exotic and rarely used instruments into music. The same applies to technical sounds generated by a synthesizer, which are also frequently used for sampling. Especially in the pop and hip-hop industries, sampling enjoys enormous popularity as a way to supplement one's own music. An interesting example is the song "Summertime" by DJ Jazzy Jeff & The Fresh Prince from 1991, for which the drum loop from the song "Funky President" by James Brown from 1974 was used.

The length of a sample is not fixed. Occasionally, entire choruses or melodies may even be sampled and form the core of a new song, but sometimes they are just individual short sequences of notes or rhythms. Sequences from existing songs can usually be used without any license fees if they are no longer related to the original music. However, this attitude is not entirely uncontroversial from a legal point of view, which can be seen from some legal disputes.

The long-running legal dispute surrounding sampling

There have been many disputes surrounding sampling in recent years. One of the biggest legal disputes has developed with the song "Metall auf Metalll" by the band Kraftwerk from 1977.

In 1997, singer Sabrina Setlur copied a two-second sequence of the song, which she used in continuous repetition in the background of her own song "nur mir".

The members of Kraftwerk subsequently sued for injunctive relief and damages because the sound carrier could only be distributed and published by the manufacturer of the sound carrier.

Even after more than 20 years of legal disputes and numerous questionable rulings, there had long been no final decision in the Setlur-Kraftwerk matter. There have already been three decisions by the BGH, one by the Federal Constitutional Court and one by the EuGH. Based on various inquiries by the BGH, the latter decided that sampling without consent is basically legal.

In most cases, however, legal ambiguities are avoidable. Most samples are produced on the basis of mutual consent and ensure that the awareness of both sides increases further. Especially for little-known artists, sampling becomes a good option to reach new target groups.

This is how the Federal Constitutional Court ruled in 2016

In retrospect, the EuGH's decision is thus closer to the Federal Constitutional Court's ruling than to the BGH's reasoning. While the BGH declared the use of small sound snippets to be inadmissible, the BVerfG referred to artistic freedom and practically overturned the BGH ruling. Also significant is the addition that, according to the ruling, sampling must not lead to damage for the author. This applies, for example, if the sampled version demonstrably damages the author's image. Pure replaying and copying of the content, however, is not permitted.

Copyright and ancillary copyright as important factors

The EuGH took a similar view and now allows sampling under certain conditions. Sampling is permitted if "it is used in a new work in a modified form that is not recognizable when heard". Sampling is also specifically permitted if it falls within the scope of quotation rights. This requires interaction with the corresponding song from which the sequence originates. Only in this way is quotation possible at any time, even in the musical sense.

Especially the latter option will support artists in their project to extend music pieces with samples themselves and to indirectly rely on previous songs. Since the music pieces must still be recognizable during sampling, the individual sounds and sections can be adopted. However, if the reference to the original is lost, sampling remains prohibited.

These rules apply around sampling music

The licensing of the respective music may also entail different regulations. Since the legal decisions relate to licensed music, the rulings cannot be applied to songs without an existing license. This applies, for example, if the creator has been deceased for more than 70 years. You should be aware of the following differences with regard to sampling if you do not have specific consent:

  • Music with license In the case of music with a license, the classic copyrights continue to apply, which means that permission must be obtained for normal samplings. Exceptions apply, as already mentioned, in the case of a quotation of the original or a modification of the sequence, whereby it can no longer be associated with the original. When this is legally the case remains a matter of interpretation.
  • Music without license Sampling is much easier with music without a license. In this case, the recordings of the songs are in the public domain and can be used without prior question. This applies to the original in its entirety as well as to certain excerpts or individual sound sequences of the song. For royalty-free music, you can therefore work with new samplings even without clear reasons. With regard to the collegiality among musicians, it is of course still a matter of honor and fairness to collaborate with the creator of the song snippet or at least to give credits.

How to make new songs from existing ideas

In many cases, sampling is not only worthwhile to evoke memories with one's own song. In most cases, artists want to refer to certain themes or sections, for which a fixed sequence as an indirect quotation is excellent. In very few cases does the sampling extend over an entire verse or chorus. Keep in mind that the more foreign content you have in your song, the less individual nuance you can add to it.

With the help of modern approaches such as sound programs and technically well-equipped recording studios, it is now easy to combine individual sounds with your songs or to incorporate entirely new sections. Distortions in the range of pitches or the technical alteration of the original can also be means to give the samples an individual touch. In this way, sampling becomes much more than just a copy.

If you do want to use larger sections of a song in the original, you should contact the authors beforehand. You don't always have to pay fees or financial obligations for a sample, as many artists profit from copying a part of the song themselves. The more often your song is heard, the more often listeners will be reminded of the original. Asking can therefore be worthwhile.

Learn more about songwriting now

In order to sample successfully, you should first take a closer look at the basics of songwriting. Don't neglect the planning of your song, and make sure that your themes are in the best possible place. If you're planning to sample, take a look at the most commonly used songs for sampling:

  • James Brown - Funky Drummer - used for more than 1,400 samples. The impressive drumming makes the parts in each song recognizable.
  • Public Enemy - Bring The Noise - this song has also been sampled more than 750 times. Thus, the song from 1987 is still very popular today.
  • The Winstons - Amen, Brother - the front-runner is clearly this song with more than 2,600 samples. Everyone probably knows the six-second drum solo.

We have summarized more songwriting tips for you in our article Tips for writing a hit song. There we show you what your first steps in songwriting can be, how to solve blockades and with which means you stand out from other artists. Everyone starts at some point and has the chance to make a lasting mark with their own music. You can inspire your listeners with samplings as well as without foreign sequences.

Freedom yes, song stealing no - this is how you implement it

In the future, sampling without consent will probably remain a case for the courts from time to time. However, this will not be a problem for the many samples in cooperation. This way, new songs can be made from numerous well-known sounds, which revive a piece of musical history. For you and your songwriting, sampling can thus also provide many exciting ideas and projects. For more songwriting tips, check out our blog here. Feel free to check out our other blog articles and get informed about the latest topics in music.

Originally published on August 15, 2021, updated on September 8, 2021

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