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Sampling and Remixes

The articles about arrangements in the “Good to know” series have so far focused on “conventional” arrangements of musical works. Sampling and remixes are two additional and specific forms of arrangement. What rights need to be secured when existing recordings are used to produce a new work? What agreements have to be contracted? Text by Claudia Kempf and Michael Wohlgemuth

Sampling and Remixes

From the copyright point of view, remixes and sampling are specific forms of arrangement. (Photo: Tabea Hüberli)

Sound samplings come in many different forms and techniques. But they all have one thing in common: they incorporate parts of a musical recording into a new work. This regularly raises the question whether such parts of works or samples are protected by copyright or – especially in the case of very short sound sequences – whether they may be used freely.

In the case of a remix, an existing production is taken and re-arranged and re-mixed. This may involve taking apart a whole work and putting it together again with the addition of new elements. Theoretically, the degree of re-arrangement in a remix may range from a simple cover version to a completely new arrangement. As a rule, a remix is simply an arrangement. Remixes generally keep a work’s existing title and add a tag which refers either to the form of use (radio edit / extended club version, or similar) or the name of the remixer (generally a well-known DJ).

By contrast with conventional arrangements, in addition to using an existing work to create a derived work or arrangement, samples and remixes also use an existing sound recording. Therefore, one must distinguish between two categories of rights: the rights of the authors of the original work on the one hand (copyrights), and the rights of the performing artists and producers of the recording on the other (neighbouring rights).

Securing the copyrights

In principle, copyright law protects entire works of music, as well as parts of works which meet the qualifying criteria, provided the term of protection of 70 years (after the death of the last deceased author) has not yet expired. The melody, a solo or other elements of a work can therefore be protected and may not be freely used if they qualify as a work of an individual character. This must be determined on a case-by-case basis. The more marked the characteristics of the sampled element, the less likely you will be able to use that element for free. The notion that two bars, nine notes or two seconds of music can be used for free is only a rumour since, regrettably, there is no clear delimitation defining when a part of a work has an individual character.

So if a protected part of a third-party composition is sampled and incorporated into a new work, and the part concerned has an individual character, the arrangement rights in the original work must be secured from the publisher or, in the case of unpublished works, the author. This is done through a sampling agreement or an arrangement licence.

In the case of a remix, a distinction is made depending on who creates the remix: the author of the original work or a third party. For copyright purposes, the original author is essentially free to create remixes of his own work. If, however, the original work was composed by several people, he will need permission from his co-authors to create a remix; and if the original work was published by a label, he will need the permission of the label to use the sound recording (neighbouring rights).

If the remix was created by a third party, a distinction must be made depending on whether the remix was commissioned or made on the remixer’s own initiative. In the latter case, the rights must be secured from the author or his publisher by means of an arrangement license (often referred to as a “remix agreement”).

Securing neighbouring rights

Since sampling and remixes borrow from pre-existing sound recordings, the rights in the recording and the artists’ performances must also be secured. As a rule, the rights of the performing artists are assigned to the record producer or the label when the production is made. These rights are also limited by a term of protection. Currently, the term of protection for recordings in Switzerland is 50 years after the first publication, provided that the recording is actually published for the first time within 50 years of the recording date. Otherwise, the recording date is decisive for the expiry of the term of protection. In the EU, however, the term of protection is 70 years. In the framework of the revision of the Copyright Act currently before the Swiss Parliament, it has been proposed to increase the term of protection under Swiss law in line with that of the European Union.

If the term of protection is still valid, the rights in the recording have to be secured. The rumour that “two seconds are fair use” is fundamentally false. However, there is controversy as to whether recording protection applies to the shortest sound sequences. The European Court of Justice is currently examining this very matter in “Kraftwerk vs. Pelham: Metall auf Metall”.

The rights in a recording are normally held by the record producer, i.e. by the party who bears the economic risk of the recording. The producer can be an artist himself (own productions), a record company (“label”) or a broadcasting company, and the corresponding rights must be secured accordingly. Colloquially, the rights in the recordings are often referred to as “master rights”.

NB. A work’s term of protection may have expired while the recording is still protected. In this case, the rights in the work no longer need to be secured, but the rights in the recording still do. This would also apply to recordings of natural sounds and animal cries, for example, which are not protected by copyright. In this case, the recording, as the economic output of the producer, is protected just the same.

Main points of a sampling agreement

Depending on the circumstances, the sampling agreement (also referred to as a “sample clearance agreement”) regulates the rights in a work and its recording. When these rights are all held by the same party, a single agreement can be made. As a rule, however, two agreements will be concluded: one with the author or his publisher, and the other with the record label. The following points must be covered:

  • Name and address of the contracting parties (pseudonyms if applicable)
  • Subject of agreement: work and/or recording. Duration of the sample. How exactly may the sample be used? Can it be altered?
  • Scope of licence: what rights are granted? Is the licence exclusive or non-exclusive? For which territory and for how long?
  • Rights splitting/licence shares: in most cases, rights are determined by the shares of the participants in the work. The authors of a new work and the rightholders of the original work are all entitled to a share in the new work. The sampling agreement must in any event indicate the splitting. In addition to this rule which depends on the economic success of the new production, the original rightholders may demand a lump-sum fee for the arrangement right. Moreover, the royalty for the use of the recording usually takes the form of a percentage per sold copy of the new production, or of a lump-sum fee.
  • Distribution timetable: when and how often are rights settled?
  • Warranties: the rightholder must warranty that he holds all the relevant rights in the sample.
  • Place, date, signature of rightholder
  • Governing law and jurisdiction

Main points of a remix agreement

A remix agreement must specify whether the remix is commissioned or the remixer is acting on his own initiative and applying for a remix licence. Depending on the premises, the agreements can be quite different. Moreover, in the case of a remix and depending on the circumstances, the rights in the work and the recording also have to be regulated. When these rights are all held by the same party, a single agreement can be concluded. As a rule, however, two agreements have to be made: one with the author or publisher, and the other with the performing artist or record label. The following points must be covered:

  • Name and address of the contracting parties (pseudonyms if applicable)
  • Subject of agreement: work and/or recording. Duration. Title of the remix. Credits.
  • Production terms: delivery date, special requirements (if commissioned)
  • Scope of licence: what rights are granted? Is the licence exclusive or non-exclusive? For which territory and how long?
  • Fees: as a rule, a lump-sum fee is agreed, more rarely a participation in sales and other licence fees such as sync fees.
  • Rights splitting: as the arranger of the newly created work, the remixer is usually (but not necessarily) given a share. Accordingly, the arrangement percentage indicated in SUISA’s Distribution Rules is applicable (see article “Arranging works protected by copyright”). In rare cases, if, for example, the remixer’s contribution to the new work is very significant, he will be granted co-authorship status in the remix. In these cases his participation may also be higher.
  • Distribution timetable: when and how often are rights settled?
  • Place, date, signature of rightholder
  • Governing law and jurisdiction

When does a remix or a work containing samples have to be registered with SUISA?

When filing an application to register a work with samples excerpted from a protected work, the sampling agreement (which does not have to be expressly designated as such) must be enclosed or – in the case of online registration – uploaded. The rights splitting must be clearly indicated in the sampling agreement. Otherwise, the new work cannot be registered.

NB. In contrast to conventional arrangements where the arranger is registered as such for the new work, it is general practice for works with samples to list all the authors as co-authors of the work. The authors and, if applicable, publishers of the work from which the samples are taken thus become co-rightholders of the new work. When applying to register a work, it is important to list all rightholders of the work from which the samples are excerpted or at least to clearly state which original work was sampled.

When filing an application to register a remix of a protected work, the remix agreement (which does not have to be expressly designated as such) must be enclosed or – in the case of online registration – uploaded. The remixer will only be granted a share of the earnings if the remix agreement clearly indicates that he is entitled to a share. If no percentage is specified, the remixer will be entitled to the share allotted to the arranger under the Distribution Rules. If no reference is made to any share, SUISA will record the name of the remixer in the original version with the comment that the remix is approved but the remixer is not entitled to any share. If a publishing house registers a remix of a work which it published in the original, SUISA waives the need for a remix agreement since the publisher can always secure the arrangement rights directly from its author.

Summary

In addition to the arrangement rights (copyright), remixes and sampling always also affect neighbouring rights, since they use existing recordings (containing the rights of performing artists). The rights in the recording may be held by the same rightholder as the arrangement rights (author or publisher), or by a third party (often a record company or label), and must be secured even for very short sequences. The more rightholders involved, the earlier one should start enquiring and securing the rights. Likewise, remix and sampling permissions should always be recorded as written agreements (which also facilitates registration of the works with SUISA) and should clearly indicate how rights are split.

SUISA assists its members in locating the rightholders. In the case of published works, it provides the publisher’s particulars so that he can be contacted directly. In the case of unpublished works, it forwards enquiries to the authors or their heirs. Enquiries should be addressed to: publisher (at) suisa (dot) ch Details of the producers of a recording can be found under the ℗ note on the recording itself.

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The articles about arrangements in the “Good to know” series have so far focused on “conventional” arrangements of musical works. Sampling and remixes are two additional and specific forms of arrangement. What rights need to be secured when existing recordings are used to produce a new work? What agreements have to be contracted? Text by Claudia Kempf and Michael Wohlgemuth

Sampling and Remixes

From the copyright point of view, remixes and sampling are specific forms of arrangement. (Photo: Tabea Hüberli)

Sound samplings come in many different forms and techniques. But they all have one thing in common: they incorporate parts of a musical recording into a new work. This regularly raises the question whether such parts of works or samples are protected by copyright or – especially in the case of very short sound sequences –...read more

SUISA Songwriting Camp 2019 now open for applications by SUISA members | plus video

The third SUISA Songwriting Camp shall take place between 24 and 26 June 2019 in the Powerplay Studios in Maur near Zurich. SUISA members may exclusively apply for a participation. The event, jointly organised between SUISA and Pele Loriano Productions, has already spawned several internationally successful pop songs. “She Got Me”, sung and co-written by Luca Hänni, was the second song in a row selected from the SUISA Songwriting Camp to represent Switzerland at the ESC. Text and video by Manu Leuenberger

With the SUISA Songwriting Camp, SUISA offers some of its members the opportunity to team up and compose pop songs with internationally renowned producers and songwriters. Swiss Duo Aliose participated in the most recent SUISA Songwriting Camp. The two SUISA members explain in the video how they perceived their participation.

Those who wish to participate in the Songwriting Camp need to have well-founded musical knowledge, be able to produce high-level creative output when pressed for time and be open for criticism and an exchange with their co-writers.

The challenging task is: To write a pop song in a team which consists of three to five persons within a day, according to certain specifications – you start with a blank sheet of paper in the morning and don’t finish until you have completed a demo track by the evening.

Pop songs with hit potential

The musical style of the songs can comprise all facets of temporary pop music, which could also be successful in the charts, on streaming platforms or on radio/TV. The songs are intended to be offered to publishers and artists on the one hand, and also be suitable for the Eurovision Song Contest on the other hand.

36 music creators from Switzerland and other countries had taken part in the SUISA Songwriting Camp 2018. Of the 19 songs which were written during last year’s instalment of the event, two compositions have meanwhile reached international fame: The works “She Got Me” and “Sister” will feature in the final round of the Eurovision Song Contest 2019 in Tel Aviv for Switzerland and Germany, respectively.

Applications for the SUISA Songwriting Camp 2019

The third SUISA Songwriting Camp shall take place between 24 and 26 June 2019 in the Powerplay Studios in Maur near Zurich. The event is jointly organised by SUISA and Pele Loriano Productions. Pele Loriano Productions is responsible for the artistic direction of the Songwriting Camp on behalf of SUISA.

SUISA members can now apply to take part in the SUISA Songwriter Camp 2019. Are you a producer, songwriter (topliner), or a lyricist and do you think you can fulfil the requirements regarding musical skills and abilities? In that case, please send us your application which should contain the following:

  • a short biography;
  • meaningful reference songs (mp3 files or internet links);
  • contact details.

Please e-mail the applications to the following address: songwritingcamp (at) suisa (dot) ch
Closing date for applications: Monday, 22 April 2019

Important: Participants’ spaces are only allocated to SUISA members by way of this application process. Those who apply should be able to guarantee that they are available to participate on one or all of the event days (24 to 26 June 2019).

Dates and selection of the participants

The selection of all artists who are invited to the camp shall be done via the artistic director. A suitable mix of participants is paramount for the creative success of the songwriting sessions.

The artistic programme director will directly communicate any acceptance messages and invitations as well as further details on the participation at the SUISA Songwriting Camp 2019 by 31 May 2019.

Rejection letters will not be sent. If you have not received an acceptance message by 31 May 2019 you were not taken into consideration for the Songwriting Camp 2019.

The number of applications is expected to exceed the number of available participants’ spaces by far. Please note that, at no time whatsoever, any claims arise to a participation in the event by sending in an application. There will also not be any correspondence in relation to the actual allocation of spaces. It is not possible to comment on any further Songwriting Camps supported by SUISA at this stage.

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Dual memberships: SUISA, and what else?Dual memberships: SUISA, and what else? SUISA manages the rights for its members globally. You should carefully review and consider the relevant effort and income if you wanted to become a member of several authors’ societies. If you live outside of Switzerland or the Principality of Liechtenstein, you can also become a SUISA member. Last but not least, it is also possible to be a member of another collective management organisation in addition to your SUISA membership. The following FAQs are intended to summarise what you need to consider when contemplating a so-called dual membership. Read more
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  1. Busseniers says:

    J ai eu la chance d avoir un feedback de Jeroen Swinnen, le belge, ce qui m a permis de bien evoluer
    C est egalement , a Jeroen Swinnen, que j ai achete le digidesign pro tools ,
    Merveilleux engin
    Bonne journee a Vous
    Christian Busseniers

Leave a Reply

All comments will be moderated. This may take some time and we reserve the right not to publish comments that contradict the conditions of use.

Your email address will not be published.

The third SUISA Songwriting Camp shall take place between 24 and 26 June 2019 in the Powerplay Studios in Maur near Zurich. SUISA members may exclusively apply for a participation. The event, jointly organised between SUISA and Pele Loriano Productions, has already spawned several internationally successful pop songs. “She Got Me”, sung and co-written by Luca Hänni, was the second song in a row selected from the SUISA Songwriting Camp to represent Switzerland at the ESC. Text and video by Manu Leuenberger

With the SUISA Songwriting Camp, SUISA offers some of its members the opportunity to team up and compose pop songs with internationally renowned producers and songwriters. Swiss Duo Aliose participated in the most recent SUISA Songwriting Camp. The two SUISA members explain in the video how they perceived their participation.

Those...read more

The beats from others – but your own songs

The melody is a catchy tune but the groove just doesn’t match. For days, you haven’t got rhythm while some ingenious lyrics are on the tip of your tongue. There are many reasons why creators use someone else’s raw material for their own songs. The following legal and practical tips on how to deal with bought-out beats help you keep in sync with formalities. Text by Martin Korrodi and Claudia Kempf

The beats from others – but your own songs

Those who produce their own songs with bought-out beats have to familiarise themselves with the licensing terms and conditions of the supplier and to mention the “beat maker” on the works registration at SUISA. (Photo: PrinceOfLove / Shutterstock.com)

Producing new works using pre-existing creations is probably one of the oldest and most successful cultural techniques in existence. Due to the technical developments, the integration of “third-party” beats into your own songs becomes simpler every day, and is thus widespread – especially in the genres of hip-hop and rap.

Raw material for the song production

Under the term “Sampling”, this practice has been in place for several decades. Whereas, in the case of sampling, elements are taken from market-ripe productions and processed further, a multitude of platforms nowadays offer a huge range of beats which are produced specially as raw material for “building” your own songs.

When implementing such pre-fabricated elements it is vital to observe that you don’t just have to “buy” the recording but also acquire the legal authorisations in order to use the recording and the underlying composition for your own works. What the purchaser may do with the acquired beat is set out in so-called licensing terms and conditions. Such “small print” may, for example, carry different names on the websites of the suppliers, such as “license agreement”, “terms of use”, “licensing contract” or “legal matters”.

Watch out for the small print!

Customers usually assume that they may do anything they like with the acquired material as soon as they have purchased the respective beat. This process is, however, usually not a typical purchase agreement but a licensing agreement which often contains limiting terms and conditions and may therefore prevent the registration and exploitation of the finished song.

Under a purchase agreement, the title to a specific work copy is acquired (e.g. on a CD). In this process the buyer has, however, not acquired any rights in the works (compositions) and performances (recordings) which are included on the CD.

Especially when working with pre-fabricated beats, buyers must be clear which copyright-relevant actions are permitted with regards to the beats and which ones are not (reproduction, arrangement etc.) This also applies if you obtain the beats free of charge.

Check list: Check these 9 items first before buying the beats

The following overview collates the most important items that you ought to observe from a legal perspective when acquiring beats via the internet:

  • The licensing terms and conditions (license agreement, terms and conditions, etc.) must always be examined thoroughly! In the case of uncertainties, it is imperative that you consult with the supplier or with SUISA before you complete the purchase transaction.
  • Certain offers only allow the non-commercial exploitation: In such cases, neither the sale of the song (via digital or physical media), nor TV or radio plays are permitted. As a consequence, a monetisation via Youtube is not allowed either.
  • The licence often only covers a specific number of copies of the finished song (e.g. “up to 3,000 units”). If this number is exceeded, a new licence has to be acquired, depending on the respective provisions, or a share in the collected revenue for the exploitation has to be paid to the beat maker.
  • Some licensing models explicitly provide for an exclusion of specific exploitations (e.g. “TV/Radio plays not included”).
  • The producers of the beats are often members of a collective management organisation themselves and demand that they participate with a certain percentage as co-authors when the finished songs are registered.
  • In nearly all cases, the name of the beat maker has to be mentioned when the finished song is used in line with the beat maker’s stipulations (Credits).
  • In the case of non-exclusive licences it is imperative to observe that other customers may also use the same material for their songs.
  • It is often possible to acquire the material on an exclusive basis if you pay a higher fee. In such cases, the respective beat will be deleted from the store once the purchase process has been completed and is thus no longer available to any other customers. In the case of exclusive deals, all necessary authorisations are usually granted in order to be able to exploit the finished song without any limitations.
  • Guarantee and indemnity: Customers who invest a lot of time and money also want to be sure that the finished production is free from third-party claims. In the licensing terms and conditions, the beat maker should therefore issue a guarantee to this end and indemnify customers from any third-party claims.

Registration of the finished songs with SUISA

Due to the rights administration agreement, SUISA has the duty to license the works of its members vis-a-vis the customers. The rights administration agreement applies consistently to all works of a member – it is usually not possible for SUISA to take limitations for a specific song contained in the licensing agreement with the beat maker into consideration.

In particular, SUISA shall not monitor the number of licensed copies or exempt specific exploitations of a song from its licensing activities. As a consequence, SUISA cannot accept any work registrations which contain beats whose use is only permitted subject to restricted conditions.

Mention the beat maker in the work registration

The work registration must be in line with the contents of the licensing agreement. As a consequence, the shares for the exploitation of the beats must be clearly stipulated in the agreement or in the terms and conditions of business. If the shares are not clearly specified, and this does, unfortunately, sometimes happen, they have to be clarified with the supplier.

The following provisions can often be found:

  1. The beat maker must receive a specific percentage of the collected income for the exploitation. In the work registration, the beat maker must be mentioned as a composer with this very percentage.
  2. The beat maker will not receive a share but demands “Credits”; his/her name therefore has to be mentioned. In the work registration, the beat maker must be mentioned as a composer with a 0% share.
  3. The beat maker neither asks for a share nor for “Credits”. The beat maker must still be mentioned as a composer with a 0% share. If the name of the composer is not known, “unknown” may be entered in the composer field.

Independently of the licensing provision, the beat maker must therefore always be mentioned in the work registration. On top of that, a note needs to be made in the comments field when registering the work that it contains a purchased beat. Moreover, it is mandatory to provide a copy of the licensing agreement.

The following shall also apply here: If works are created where several authors have contributed, the shares and authorisations must be clearly specified prior to publication.

Purchase via the internet
The purchase of beats via the internet from an unknown supplier holds the same risks as any other purchase on the internet. The government has therefore issued some basic guidelines which should be observed when making purchases on the internet.
Jamahook – a social network for musicians
A portal by musicians for musicians is currently in its infancy, which shall facilitate the collaboration between musicians, beat makers and producers. The core piece of this platform is a sophisticated algorithm which allows to find suitable sounds or beats matching your own music – in an instant. The search includes harmonies, rhythms, tempo and timbre. Jamahook does not just simplify the musical collaboration but also the regulation of copyright-related legal aspects. In this context, SUISA supports the makers of this platform which has its registered office in Switzerland. More info on this project: www.jamahook.com as well as www.youtube.com/jamahook
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Camilla Sparksss: “A lovely Christmas present” | plus videoCamilla Sparksss: “A lovely Christmas present” | plus video A former monk’s hermitage serves as the birthplace for new songs by Camilla Sparksss. To this day, the view over the lake landscape from there seems rather idyllic. Looking more closely, however, you realise that the landscape is cut in half by the motorway’s north-south axis and the runway of the Lugano-Agno airport. The same applies to Camilla Sparksss: things are not all as they seem at first glance. Read more
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The melody is a catchy tune but the groove just doesn’t match. For days, you haven’t got rhythm while some ingenious lyrics are on the tip of your tongue. There are many reasons why creators use someone else’s raw material for their own songs. The following legal and practical tips on how to deal with bought-out beats help you keep in sync with formalities. Text by Martin Korrodi and Claudia Kempf

The beats from others – but your own songs

Those who produce their own songs with bought-out beats have to familiarise themselves with the licensing terms and conditions of the supplier and to mention the “beat maker” on the works registration at SUISA. (Photo: PrinceOfLove / Shutterstock.com)

Producing new works using pre-existing creations is probably one of the oldest and most successful cultural techniques in existence. Due to the technical developments,...read more