Rising Recording Artists and Producers: How to Properly Clear a Song?

I have been absent from this blog because I have been extremely busy working and writing for other publications and my own personal blog. But every week, visitors come to this blog to receive good information about Intellectual Property and I am grateful. I hope to update this blog more often. Thank you for continually reading and supporting this blog.

Popular recording artist Drake and his record labels Cash Money, Inc. and Universal Music Group, Inc. are currently being sued for copyright infringement for allegedly using a song as a sample without the copyright owner's express permission. If the allegations are proven true, I can only conclude that someone on Drake's production team either did not understand the process of clearing a song or simply did not follow through with the process. In my practice I have represented recording artist and producers and the clearance process can be one of frustration and confusion for an artist. Therefore it is important that artists' representatives are diligent in ensuring their clients are not committing infringement when creating art.

The clearance process is relatively simple but can be complex for numerous reasons. They are:

1. The copyright owner is not available,
2. The copyright owner refuses to give permission to use the work,
3. The copyright owner demands an excessive royalty,
4. The need to get permission from multiple copyright owners of one song.

For artists who are not represented, here are a few simple tips in clearing a song:

1. Search the U.S. Copyright Office database to locate the owner of a song. All copyright registrations require the owner to list their contact information.
2. If the copyright owner is not available, search the databases of ASCAP, BMI, or SESAC to properly locate the publisher or copyright owner.
3. Send a request to use the song and an offer of royalties in writing.
4. Follow-up the letter with a phone call.
5. Negotiate an acceptable royalty rate to use the song.
6. Get a licensing agreement in writing.

If the publisher or copyright owner refuses to negotiate or allow use of the song, the only remedy is to choose another song and get clearance. It is the copyright owner's right to allow use of their work as they see fit.