Another question from a reader:
I was looking to see if you had ever covered the topic of using someone else’s music recording incorporated into one’s own different music recording. Not exactly sampling, but using a whole work. The song I’m thinking of is a public domain piece, but the recording is not. I didn’t see it in the many things you have covered, so thought I’d ask. Thanks so much for any knowledge you might have to share!!
That IS sampling, which is defined as ” the incorporation of another sound recording into your own new record.” The creators of the sound recording have copyright for the actual recording, even though they do not have copyright over the public domain composition. So if you want to use their actual sound recording you need to get permission.
One way advertisers and TV/movie shows get around this is to use a “sound-alike” company to re-record the piece (assuming it was public domain – you can’t just re-record a Beatles song without permission!). There was a big kerfuffle recently when “Glee” did a cover of a cover done by Jonathan Coulton – while technically he had no recourse for them exactly copying his arrangement (because the license he bought from the original artist does not allow him to copyright his arrangement) there was some question of whether they had actually sampled part of his sound recording.
So unless you can contact whoever has the sound recording rights and get permission (and do get it in writing to protect yourself in the future) your only option is to re-record a similar track yourself, or hire someone else to do so as fee-for-service.
[Obligatory disclaimer: I am not a lawyer, do not play one on TV, and am not offering legal advice]