A brief guide to the law and ethics of the digital sampling of recorded sound materials

This guide is made for anyone who is interested in making music by sampling existing audio and video material from the Library of Congress and beyond. It is designed to be accessible and clear while not over-simplifying what is a complex set of copyright and ethical issues. This is not meant to be legal advice, but a guide that aggregates, references, organizes, and summarizes existing information from reputable sources such as the Library of Congress and the U.S. Copyright Office.

This guide is built on top of the Library’s Understanding Copyright guide, with a special focus on AV materials and music production. It is recommended that you read the Library’s guide as an introduction to copyright.

Copyright status of audio on Citizen DJ

Note that all the audio that you find on the Citizen DJ website is free to use from a copyright perspective. And all audio found on this website should contain a statement of how you can use it and why it is free to use. This guide talks generally about audio material that you may find outside of Citizen DJ, on main the Library of Congress website, and beyond. Additionally, the ethics of digital sampling is relevant to all audio material include those found on Citizen DJ.

Copyright checklist

In order to use a sound recording for free without permission, you need to look at the copyright of (1) the sound recording itself, and (2) underlying compositions or texts, such as song composition and lyrics.

For the sound recording, one or more of the following criteria must be met:

1. It was recorded and performed by U.S. Government employees as part of their jobs. See Section 105 of the Copyright Law of the United States
2. It was recorded by U.S. Government employees as part of their jobs and received signed releases by non-employee performers
3. The recording was dedicated to the public domain by the owner
4. The recording was published with a license that permits adaptations and commercial use without permission, such as a Creative Commons Attribution license
5. You have obtained explicit permission by the copyright owners to use the sound recording for music production
6. As of January 1, 2022, the sound recording was published in the U.S. 100 years ago or more. See Section 1401 of the Music Modernization Act

For the underlying composition (e.g. song composition, lyrics), one or more of the following criteria must bes met:

1. It was published 95 years ago or more. See section 302 of the Copyright Law of the United States
2. It was unpublished and the author died 70 years ago or more
3. It was unpublished, the author’s date of death is unknown, and was created 120 years ago or more
4. It was created by U.S. Government employees as part of their jobs. See Section 105 of the Copyright Law of the United States
5. It was commissioned by the U.S. Government and the non-employee did not claim copyright
6. The work was dedicated to the public domain by the owner
7. The work was published with a license that permits adaptations and commercial use without permission, such as a Creative Commons Attribution license
8. You have obtained explicit permission by the copyright owners to use the underlying composition for music production

Note that there are many small exceptions to the criteria outlined above. You can refer to the tables on this page about copyright terms for more detailed information. Some other points to note:

1. For film with an audio track, the audio from that film will have the same copyright status as the film. For example, if the film is in the public domain because it was published 95 years ago or was created by the U.S. Government, the audio from that film is also in the public domain.
2. For sound recordings and compositions published outside the United States, you can more or less follow the guidelines listed above with some exceptions.
3. For unpublished sound recordings, you are largely out of luck. These recordings won’t enter the public domain until February 15, 2067.

Where to find copyright information on loc.gov?

When looking at a particular item page on loc.gov, here are some tips for determining if this item meets the criteria listed in the previous section

Check the “Rights & Access” section

In some cases, the Library will clearly state that this item is in the public domain. If that is the case, you can stop here! Here’s an example of a sound recording in the public domain:

In the most conservative view of copyright, the above case is the only way to clearly determine if a sound recording is in the public domain. You may also come across language like “no known copyright restrictions.” While this phrase is less explicit than “public domain,” the risk of running into copyright issues is very low in this case.

It is important to note that this section may give information about the public domain status of either the recording or the composition in the case of a performed song. Here’s an example where U.S. Government fieldworkers collected the material:

In the above example, even though the recording may be in the public domain, if it was a recording of a performer singing a song, it is unclear whether permission was given by the performer or if the song’s lyrics and composition are in the public domain. Unless it is stated elsewhere in the “Rights & Access” statement, additional research is likely required.

Check the item’s parent collection page

In some cases, an item is part of a collection. You can find this under the section labelled “Part of”; for example:

The collection page has sections “About this Collection” and “Rights and Access”. The contents of these pages may give further clues as to how the items in this collection were created or collected.

Check the “Created / Published” section

If you are determining when a particular song was created or published, you can find it in this section. In this example, the item was published in 1914:

So even though it is unclear whether the recording is in the public domain, the underlying composition is in the public domain since it was published more than 95 years ago.

Check the “Contributor Names” section

This section won’t directly tell you any copyright information, but it is helpful in determining the different parties involved in the creation of the sound recording. Here’s an example with multiple contributors:

In the above example, you have both collectors and the performer. So you have to determine if John and Ruby Lomax collected this audio on behalf of the U.S. government or dedicated the recordings to the public domain. In addition, you will need to determine if John B. Jones (performer) signed a release for his performance. And as a reminder, you will also need to check if the underlying composition is in the public domain in the case of a song.

Fair use

The following considerations may reduce your risk of copyright infringement but will not guarantee full protection. This list is scoped to considerations for the creation of new music. Refer to the next section for more detailed information about fair use.

1. Your new work is a critique or parody of the copyrighted work
2. You are not making money from your new work or there is no significant effect on the market or market potential of the copyrighted work
3. You are using a small quantity of the copyrighted work, e.g. under a second
4. The portion you are sampling is not central or significant to the entire copyrighted work (e.g. taking a drum hit instead of a song’s hook)

Generally speaking, the more items on the above list that you consider when making new work, the better.

Further copyright resources

1. Using Items from the Library’s Website: Understanding Copyright, The Library of Congress
2. Learning Engine Video Series, U.S. Copyright Office
3. Copyright Law of the United States (Title 17), U.S. Copyright Office
4. Copyright Basics, U.S. Copyright Office
5. Duration of Copyright, U.S. Copyright Office
6. How to Investigate the Copyright Status of a Work, U.S. Copyright Office
7. Can I Use Someone Else’s Work? Can Someone Else Use Mine?, U.S. Copyright Office
8. Copyright Term and the Public Domain in the United States Chart, Copyright Information Center, Cornell University Library
9. Fair Use Checklist, Copyright Advisory Office, Columbia University Libraries
10. Summaries of Fair Use Cases, Stanford Copyright & Fair Use, Stanford University Libraries
11. Measuring Fair Use: The Four Factors, Stanford Copyright & Fair Use, Stanford University Libraries
12. Copyright Office Records Research and Certification Services, for a fee, can research its records on copyright status
13. Ask a Librarian if I have information about copyright in a Library collection item

Ethical considerations

Once you determine whether you can legally sample from a sound recording, it is good practice to also think about the ethics of sampling from existing cultural material.

Attribution

For materials in the public domain, attribution is not required. But generally speaking, giving attribution is good practice for any derivative work and usually easy to do.

1. When possible, clearly give credit to the original creators of the original work. This includes the composer, performer, collector, and publisher
2. Make your attributions clear and visible wherever your new work is published
3. If you work is published online, point your listeners to the URL of the original work if possible
4. If you are sampling from an item within a larger body of work, consider providing some context with your attributions. For example, if the recording was made as part of a mission-driven project, provide some information about that project and mission.

Compensation

Even if you may not be legally bound to compensating the original creator or the descendants of the original creator, it is worth considering providing compensation within reason if you are profiting from your new, derivative work. Here are some questions to help guide you:

1. Does your new work rely heavily on the original work?
2. Who will be profiting from your new work?
3. Did the original creator get compensated for their original work?
4. Did you or the Library attempt to contact the original creator or their descendants?

Cultural and historical contexts

If you are sampling from field recordings or culturally sensitive material, it is important to consider the culture and sensibilities of the people whose lives, ideas, and creativity that are documented. Here are some questions to help guide you:

1. Do the performers come from a culture of sharing?
2. Are the performers part of a historically marginalized group?
3. What was the intention or goals of the collector?
4. How did the performers understand the recordings will be used?
5. Did the performers get compensated?
6. Did the collector receive permission to record and share the performers’ work?
7. What would the original performer/creator think if your derivative work?
8. If you are sampling from a culture that is not your own, does it come from a place of respect or capitalization? How do you acknowledge that culture? What do you add to it?
9. If the original recording contains offensive or insensitive material, does your new work perpetuate or interrogate the offensive or insensitive content?

Further reading

1. Decolonizing Attribution. Jane Anderson, 2019
2. Negotiating Who “Owns” Penobscot Culture. Jane Anderson, 2018
3. Remixing Cultures: Bartók and Kodály in the Age of Indigenous Cultural Rights. Gábor Vályi, 2011
4. My Life in the Bush of Ghosts: ‘World Music’ and the Commodification of Religious Experience. Steven Feld, 2011
5. Digital Sampling and Cultural Inequality. David Hesmondhalgh, 2006
6. Who Owns Native Culture?. Michael F. Brown, 2004
7. A Sweet Lullaby for World Music. Steven Feld, 2003
8. Ethnomusicology, Archives,Professional Organizations, and the Shifting Ethics of IP. Anthony Seeger, 1996
9. The Role of Sound Archives in Ethnomusicology Today. Anthony Seeger, 1986