Illegal sampling can draw US$100,000 penalty

SOCA ARTISTES who sample the music of other artistes without permission are guilty of copyright violation and face penalities of up to US$100,000. In addition, their albums could be recalled and destroyed, United States copyright lawyer Michael P Mc Cready warned yesterday. “A copyright infringer is liable for statutory damages that generally run from US$500 to US$20,000 for a single act of copyright infringement. If the court determines there has been willful infringement, damages can run as high as $100,000,” he explained. “The copyright owner can also get a court to issue an injunction forcing you to cease violating the copyright owner’s rights. The court can also force you to recall all your albums and destroy them.”

Sampling, the use of portions of prior recordings that are incorporated into a new composition, has been a source of much debate in recent times. President of the Trinbago Unified Calypsonians Organisation (TUCO) Michael Legerton (Protector) said the organisation was considering barring soca music with sampling from the Road March competition. Mc Cready, who added his voice to the debate yesterday, said sampling without permission violates two copyrights — the sound recording copyright which is usually owned by the record company and the copyright of  the song itself, which is usually owned by the songwriter or the publishing company. According to Mc Cready, the fee for a licence to use a sample can vary, depending on how much of the sample is to be used. “First, you can pay a flat fee for the usage. A buyout fee can range from US$250 to US$10,000 on a major label. Most fees fall between US$1,000 and US$2,000.

“The other way to pay for the licence is a percentage of the mechanical royalty rate. The mechanical royalty rate is the amount a person pays to the copyright owner to make a mechanical reproduction (copy) of the song.” He added: “Everything is negotiable and it is not unusual to get a licence for free, if you ask. “There is a rumour going around that you can use four notes of any song under the “fair use” doctrine. There is no “four note” rule in the copyright law. One note from a sound recording is a copyright violation. Mc Cready said sampling could also have serious consequences if the artiste has a record contract. Most record contracts have provisions called warranties, indemnifications and representations which constitute a promise that the artiste created all the music on an album and an agreement to reimburse the label if it is sued.