Who is owed royalties when a song samples a song that has sampled another song?

Question

When I first heard Alessia Cara's song "Here" I thought she had directly sampled Portishead's "Glory Box" which in turn samples Isaac Hayes' "Ike's Rap II". I later found this was not true, but this kind of sampling-a-sample situation is not uncommon. WhoSampled.com terms this a "sample chain". In such chains who is owed royalties? Had Alessia Cara sampled Portishead would she owe royalties to Portishead, Isaac Hayes or both?

Answer 1

Short answer: We need to know more about the licensing agreements in question to answer this question.

This answer is based upon United States copyright law in light of the examples given in the question, although the result under the laws of most countries with copyright laws that are part of the international copyright regime would be similar. Most, but not all, countries in the world provide meaningful copyright protections pursuant to this regime.

Royalties are paid only if there is a license in place, in which case the answer would turn on the terms of the licenses in question. If someone fails to obtain a license, they can be sued for violating a copyright and the amounts paid in those cases would be damages for infringement of a copyright, not royalties.

Copyright Liability In The Absence Of Any Licenses

If no one obtains licenses from anyone, then no royalties will be paid, but someone might be entitled to damages if they bring a copyright infringement lawsuit. Since the licenses are negotiated in the shadow of the copyright infringement liability that would apply if licenses are not obtained, the analysis begins with copyright liability in the absence of any agreements.

Copyright Liability To The Owner Of The Original Source

If licenses were not obtained by anyone, the owner of the original source would have a right to sue the producer of the end product for a copyright violation.

Similarly, the owner of the original source would have a right to sue the producer of the intermediate source for a copyright violation.

Copyright Liability To The Owner Of The Intermediate Source

But, if licenses were not obtained by anyone, would the owner of the intermediate source also have a right to sue the produce of the end product for copyright violation?

This would be a closer question.

Ordinarily, the answer would be "yes" and this would probably still apply to the extent that non-infringing parts of the intermediate source were sampled.

But, the intermediate source could probably not sue the producer of the end product for merely sampling a part of the intermediate source that was itself a sample of the original material, since the copyright to that material would belong to the owner of the copyright to the original source and not the intermediate source.

Further, the court might deny the owner of the intermediate source suing the producer of the end product any relief at all, on the theory that the infringing sampling in the intermediate source tainted the entire intermediate source as infringing and/or was an instance of the intermediate source owner coming into the court with unclean hands such that the intermediate source owner should not be entitled to relief at all.

Royalties Paid Pursuant To Licensing Agreements

Royalties could be owed to the licensor of the original source, to the licensor of the intermediate source, or to both of them, depending upon the extent of the material resampled and the terms of the licensing agreement, if any, between the original source and the intermediate source.

The License From The Owner Of The Intermediate Source

If the intermediate source was licensed to the producer of the end product, the licensor of the intermediate source would be entitled to royalties pursuant to that license.

The license of the intermediate source to the producer of the end product would normally also include a term warranting that it had the right to license its entire song.

But, this warranty would only be true if the producer of the intermediate source obtained a license of the original source that authorized relicensing of samples from the intermediate source including the sampled material. Usually, a license from a licensor of the original source that was well drafted, would give the producer of the intermediate source this right and require the producer of the intermediate source to pay additional royalties to the licensor of the original source for this new revenue stream. But, the quality of licensing agreements varies a great deal.

If the license from the intermediate source claimed to have the rights to the entire song, but didn't actual obtain a license to use the original source, then, if the producer of the end product was sued for copyright violation by the owner of the original source's copyright, the licensor of the intermediate source would have to indemnify the producer of the end product for any liability arising from the copyright suit by the owner of the original source (and the intermediate source would probably be sued by the original source's owner for copyright violation as well).

Of course, if the sloppy or dishonest licensor of the intermediate source didn't have any money, the right to indemnification would be cold comfort to the producer of the end product.

A License From The Original Source

If the license from the intermediate source expressly stated that it didn't have a right to license certain sampled material, a separate license to the original source would also have to be negotiated by the producer of the end product, and royalties would have to paid directly to the licensor of the original source as well.

If the producer of the end product didn't obtain that license, the owner of the original source would have a right to sue the producer of the end product for copyright violation and the intermediate source would not have to indemnify the producer of the end product for damages in that lawsuit.

The producer of the end product could also only resample the infringing part of the intermediate source and obtain a license from the original source but not the intermediate source (although it would be easier just to sample the original source directly in a case like that), and pay royalties to the original source but not the intermediate source.

The producer of the end product might also only obtain a license from and pay royalties to the original source, if the producer of the end product thought that the intermediate source would not have a right to, or would be unlikely to, sue the producer of the end product because intermediate source was infringing which might deny the owner of the copyright to the intermediate source any relief, or might expose the owner of the intermediate source to suit from the owner the original source if the litigation was expanded by the producer of the end product.