DSF posts about intellectual property issues come in cycles. I am a lawyer, and I'm writing this because I have gained so much from DSF and wanted to give something back. I am licensed to practice in NY/CA (voluntarily inactive in CA), but I'm neither an intellectual property expert nor is that my main area of practice. I have, however, taken IP classes in law school, worked in the intellectual property group at an internationally known NY firm, and have helped various clients (including my own) with their intellectual property issues. There is no magic to being a lawyer, but the profession does teach you one thing: how to research and find answers.
Here's my attempt to try and make some things clearer, and maybe provide/confirm some basic understanding, without closing off any further insight/corrections that others on DSF might have (and there must be at least one other legal professional here). Last thing I want is to watch fellow producers get caught up in any legal quagmire, or to waste precious time worrying about legalities. Trust me, from a lawyer's perspective, much of the worrying is pointless for reasons I'll explain. And there are plenty of successful producers and labels here that have even more practical experience than I do, from a client's perspective, and I must defer to them for the realities on the ground.
Let me also say that even though I am trained as a lawyer, it does not mean that I subscribe to the policies behind all of our laws. For instance, I firmly support the art of sampling and believe a middle ground ought to be found between the framework against sampling and the high cost (time, legal costs, barriers) of sample clearance (which involves publishers and labels). I don't necessarily know what that would look like though.
Sorry I have to insert this: This is not meant to be actual legal advice, but rather a short, general summary of the legal environment/issues in the US, addressing some issues that consistently pop-up on the forum. Please do not contact me with legal questions. That is my day job - what I do so that I can support me and my family and pursue my true passions late at night. Compared with learning about production and making my tunes, it is also incredibly boring. But I did want to pay back the DSF community in some way by at least offering some of the knowledge I have gained from my other vocation. I'm a little sorry as I write this, because I may forever be branded as "the lawyer". Oh well, I may just come back under another alias. For those in other countries, sorry, I have nothing to contribute about your local situations, except that, we'll sue you too if there's a reason to.
Copyright in General and Our Music
The moment you finish something, call it complete, done, whatever, you own the copyright to that piece of music. If you can claim that it was entirely original, you will have complete ownership over it. What is it that I own now? The underlying composition, and the actual master (let's say "Brostep.wav"). It's important to understand that your ownership consists of a bundle of rights that you retain, or divide up as you see fit. I can give a license to Indie Record Label to include the track in a compilation. I can give a license to Artist to sample part of it and incorporate it into their new track. Or I can give a license to a concert promoter who wishes to play my track over the PA during intermission (performance license). All of these involve fees negotiated for both the composition and the master recording. You can see how complex and confusing this can become if you have an entire catalog of released material.
A very practical implication of the above: when Kanye wants to sample from another artist's work, he must get permission to use both the underlying composition AND the master recording. If he can get rights to the composition (which is typically held by a music publisher), but not the recording (often held by a label) then he hires someone like Ken Lewis to recreate the passage so that it sounds like the recording (
http://www.protoolsmixing.com/2008/01/y ... -year.html). Or, if I get clearance from a label to sample the master recording, but forget to contact the publisher, I could still get sued by the publisher for infringing the copyright to the underlying composition. What practical relevance does this have here for DSF? Almost none. But what if your track contains a passage similar to Skream's arpeggios from MRL and you started selling that track and actually making money? There is no assurance that Skream would not hire a lawyer to at least send you a Cease & Desist letter.
All copyright actions hinge upon a simple act: the moment you allegedly COPIED something. Did you play a line that's identical to the opening phrase of Stairway to Heaven? (opens you to an infringement action by the publisher) Or did you copy/paste a 3 second clip from Rihanna's latest? (opens you to an action by both the publisher and the owner of the master recordings, if different). There are lots of different scenarios that you can google. Important thing is to understand the regime out there, and how you might fit into it.
A common copyright question on DSF is "how do I protect my track(s) before I send them out?" At this point, "poor man's copyright" ALWAYS comes up. But it is a MYTH (google "poor man's copyright myth"). If you put a CD of your tracks in an envelope and mail them to yourself, then promptly put it in a drawer without opening it, this does nothing. At most, it can help show that you created the tracks, but it does not allow you to access the courts. The only way you can bring a copyright suit to protect yourself is if you register the track(s) with the Copyright Office. So before you send your demos out, register them with the Copyright Office. It's cheap. Be diligent about archiving your works too so that you have unquestionable evidence that you built the tracks. Of course, the flip side to this question is, what are the legal ramifications against me when I send demos out, which I address below.
Sampling
"What if I send out tracks containing uncleared samples?" I cannot speak from personal experience about this, because I have never sent any demos out. But you should be careful to whom you send them. If you send anything out with uncleared samples, it opens your work and your reputation up to the world's scrutiny. Besides the normal risk taken by an artist when sending demos out, there is the risk (albeit remote) that the original sampled artist might hear it. At that point, you've moved from "exciting new artist" to "alleged thief". Not to mention what that record label might think of you. This depends on the label of course, but I've never heard of a label that welcomes lawsuits. Take what you want from this.
All of this brings to mind the legal process or the "fear of the unknown" which is at the heart of many DSF posts. Of course, most issues can be avoided if you don't sample other works. But if your tracks have samples in them, and they are good enough that someone is considering releasing them for you, or you are trying to self-release, someone will have to attempt to clear the samples. This is possible to do on your own. There are plenty of online services that claim to facilitate it. But overall, expect this to be a time-consuming process. And unless your tracks are going to drop like bombs (like you have 10,000 plays on Soundcloud without a single free space in the timed comment bar), don't expect anyone to eagerly help you out in this respect.
Of course, the ramifications of sampling completely depend on who you are, who the original artist is, and whether any money is being made. If you are a complete nobody who sampled from a Rihanna track, you will either never be heard (because you are a nobody and you didn't use a highly identifiable sample), or it will be all over the internet despite being a nobody because your track contains a ridiculously famous piece of a Rihanna track.
So what if you are the latter case? Well, the famous artist's team of lawyers may look you up, do some searches to find out if you are selling the track, and to see if your track is being performed anywhere. Most importantly they want to know if you are making any money. They may even strategize about how to exploit what you've done. Realistically, though, you probably aren't making any money off of it, and so there could be little to no damages (besides statutory damages - google this), and so you may just receive a C&D in the mail, warning you to remove all instances of the track or else risk a lawsuit. And most likely, you will cave, because let's face it: it's much cheaper to take it off youtube (is that even possible?), then to hire a lawyer to defend you. Now if you've already offered it for sale, and it's not easily removeable from different outlets, then they could proceed with the lawsuit and win rights to all proceeds going forward.
Now some folks reading this will say that the obvious lesson is this: if you sample, make sure it's not easily recognizable, and do not offer it up for sale. I did not say that. But what are the chances that you will be accused of sampling if no one, including the original artist, can recognize that the sampled work is theirs? Then it becomes a personal issue of how you view the discrete act of "sampling" in your bedroom.
But truly, where would any of us be be without sampling?
My own personal opinion is that if you are sampling, try to keep in mind the sample clearance process, and do not make your track completely dependent on any one sample, especially if it may be easily recognized. Then if you cannot get clearance for a particular sample, your track could possibly still survive without it. Of course, Burial comes to mind. I have no idea what kind of clearance is involved, but most of his tracks (which are not heavily dependent on a particular vocal) could still work minus any of the few identifiable samples he incorporates in each track. The wiki pages show which samples have been used. You can bet that if that information is public, then Hyperdub managed to clear those samples, or they have already received C&D letters or have been sued. Also, I have the suspicion that his relative fame has complicated the clearance process, which could partly explain the lengthy silence since Untrue.
This is the reality of the modern music environment, at least in the U.S. Imagine, there was a time when sampling was not on anybody's radar.
Remixing
This is an issue that comes up regularly as well. Remixing typically involves taking elements of a released track and turning it into a new track, featuring your unique take or spin on it. For some, it can be an easier way of getting heard than by writing completely original tracks. When you remix something, it necessarily entails COPYING parts of that track and creating a new piece of music. This means your remix is now a "derivative" work of that original piece. This is a type of work that often commands fees, paid by the original artists to the remixer (either upfront, or in the form of a percentage of sales, or some combination, etc.). But the remixer is given the right to make a derivative work (part of the bundle of rights owned by the original author) which in most cases shall remain completely owned by the original artist. Of course, often the remixer's compensation will be completely up to the original artist subject to negotiation. Practically speaking, there is little difference between incorporating an uncleared sample in your work, and producing an unauthorized remix. Both are infringing on someone's copyright. So whether you make it available for download, or sale, or whatever, makes no difference. If it's heard (and recognized), you will likely be accused of infringing their copyright. Keep an eye out for the C&D letter.
Trademarks
This is an area less likely to come up for most of us producers. But trademarks serve to identify/distinguish our goods and services. If I have a unique production name (not just my real name) and/or logo for my production, and it somehow creates confusion in the marketplace as to the real "DJ Brostep", etc., then you may enter into a little fight about it, possibly resulting in a lawsuit. But this is really unlikely. Just google possible production names to remain unique.
I'm now rushing to complete this so apologize for any major omissions. Again, my apologies for not being willing to engage in a back and forth about the legalities of what we are doing. But even if we had a 100 page discussion, it would only be possible to convey how complex the legal situation has become here. The federal courts do not all rule the same way on fine copyright issues, and there is a sense that the laws are terribly outdated. If there are major questions/conflicts that come up because what I've written I'll try to respond generally.
Peace.
) 
' Hahahaha.
