Tuesday, May 31, 2011

Can We Sample Tequila? The Song That Is ...

Dear Rich: I am representing a band that has written a song that uses 4 seconds of the song "Tequila" in a break. The song is not sampled, but rather the melody is played by the lead guitar and the word "tequila" is sung once. The band expects to release the song for widespread commercial use. I have already determined that "Tequila" is protected by copyright and the publisher is registered with BMI as I recall. Do we need to get a license or sample clearance? Is there a fair use or some other exception that might apply? The good news is that you haven't sampled the Tequila recording. That eliminates the pesky issues raised by the 6th Circuit in this harshy-harsh sampling case. (They proclaimed that all digital sampling required a license no matter how short or inaudible the sample!)
Analog Not Digital. Since you're not doing any digital sampling, we think you're in a better position to go without permission and claim two defenses:
  • the de minimis defense. Four seconds of Tequila is not an infringement because the use is so minimal, or 
  • the fair use defense. You are using the song for transformative purposes (perhaps commenting on Tequila's retro-classic cultural significance, or referencing Tequila to make a point about alcohol consumption.)
But like Tequila, you may want to take our advice with a few grains of salt. We're discussing defenses and if the owner of the song disputes your position, a judge will have to decide the matter -- always an expensive proposition. Some other questions to consider: Is the band under contract and must they declare the samples to their label? Is the copyright owner likely to learn of your use? Need some more on sampling? Check out this article.