Stem separation doesn't make samples free: sample clearance explained

Stem separation used to be a specialist trick. Now it ships inside DAWs: Logic Pro, for one, has a built-in Stem Splitter that pulls vocal and instrumental stems out of an audio region (see our coverage of Ableton's stem separation). That makes it very easy to lift a clean drum break or an acapella from a finished record. It does not make the result yours. This is how sample clearance works, and why a separated stem is still a sample.

Why does one sample need two licences?

Every commercial recording contains two copyrights. The US Copyright Office puts it plainly: sound recordings and musical compositions are "two separate works" for copyright purposes. The composition (melody, harmony, lyrics) belongs to its songwriters, usually through a publisher. The sound recording, meaning that particular fixed performance, is credited to performers, producers and engineers, and is usually owned by a label.

When you sample, you copy both at once: the actual sounds, and the musical material they carry. So you need a master-use licence from the recording owner and a licence from the publisher for the composition. Both Tracklib and Notes.fm set out the same two-licence structure, and Notes.fm adds that there is no compulsory licence for either. You can't pay a statutory rate and go, the way you can for a straight cover.

What did Bridgeport decide?

Bridgeport Music v. Dimension Films, decided by the US Court of Appeals for the Sixth Circuit on 7 Sept 2004, is the case every sampling explainer cites. The facts are useful because they sound like an ordinary session. The guitar riff that opens Funkadelic's "Get Off Your Ass and Jam" lasts four seconds. A two-second piece of it was copied, pitched down and looped to 16 beats in "100 Miles and Runnin'". The district court called that de minimis, too trivial to be infringement. The appeals court reversed.

Its reasoning rests on 17 U.S.C. § 114(b). The recording owner's right covers works in which "the actual sounds fixed in the sound recording are rearranged, remixed, or otherwise altered in sequence or quality." Read literally, the court said, that gives the recording owner the exclusive right to sample it, and no amount of processing changes that. Its summary was seven words long: "Get a license or do not sample." The court also pointed out that anyone is free to replay a riff in the studio, because the same subsection says the right does not reach an "independent fixation" of sounds that merely imitate the original.

The Sixth Circuit reissued its reasoning in a 2005 version of the opinion (410 F.3d 792), but it isn't the law everywhere. In VMG Salsoul v. Ciccone (2016), over a 0.23-second horn hit allegedly used in Madonna's "Vogue", the Ninth Circuit openly disagreed with the Sixth. It held that the de minimis exception still applies to sound recordings, and found that a general audience would not recognise that snippet. So US courts are split. That is a reason to clear, not a loophole: the Ninth Circuit's test turns on whether a general audience would recognise the source, and the whole point of sampling a recognisable break is that they do.

One part of Bridgeport is out of date. The court described pre-1971 recordings as "up for grabs" for sampling. Since 2018, when the Music Modernization Act added the Classics Protection and Access Act, 17 U.S.C. § 1401 has made unauthorised use of recordings fixed before 15 Feb 1972 subject to the same remedies as copyright infringement, with protection running at the latest to 15 Feb 2067. Old soul and funk records are not free material. (Our Music Modernization Act explainer covers the wider law.)

A stem is still the record

A stem splitter doesn't record anything new. It estimates which parts of the mixed signal belong to the drums, the bass or the voice, and outputs those parts. Everything you hear in the stem comes from the original fixation, which is exactly what § 114(b) protects: the actual sounds, "rearranged, remixed, or otherwise altered". Separation is alteration. A muddy, artefact-filled stem is no safer than a clean one, because under Bridgeport it doesn't matter how far the sounds were changed.

Three worked examples:

• You split a 1970s funk record and keep only the drum stem. That is a sample of the master. The drums may carry little melody, but the composition can still be in play if any pitched or lyrical material is audible. Clear both, or at least ask the publisher.
• You pull an acapella and build a new track under it. That is the master, plus the lyric and melody, which are the composition. Expect both owners to want approval and a share, and expect the artist's side to have a say.
• You hear a bassline in a stem, then replay it on your own bass. That is an interpolation. You made your own recording, so you don't need a master licence. You are still copying the composition, so you need the publisher's licence. Notes.fm and Tracklib both draw this line.

What clearance actually involves

Tracklib, which sells pre-cleared samples and so has an interest here, describes the usual process. List every piece you used. Find the master owner (label, producer or independent artist) and the publisher, for example through the PROs. Send a written request with the title, the sample's length and the intended use, usually with a private demo. Then negotiate. Master owners typically ask for a fee plus a royalty, and publishers for a fee, a royalty or a share of the new song. Tracklib puts traditional clearance at "a few hundred to a few thousand dollars" and says the price depends on how famous the song is, the length of the sample, the territory and whether the track is already out. Treat that range as a rough guide from a party with something to sell, not a rate card.

A short checklist before release:

1. Write down the source of every sound you didn't play or programme yourself, stems included.
2. For each one, name the master owner and the publisher.
3. Decide: clear both, replay it (composition only), or replace it.
4. Get approvals in writing before you distribute. Don't post demos publicly.
5. Make sure the licence covers worldwide distribution if you're uploading worldwide.
6. Keep the paperwork with the session files.

What we think

Built-in stem separation shifts risk onto individual producers. When isolating a break meant expensive software and patience, uncleared samples were mostly a label problem. Now a bedroom producer can make a clean acapella of a famous record in seconds and release it the same night through a distributor that may never check. The tool makers win: stem separation is a selling point. The people who lose are the producers who take that convenience as permission, and who later get a claim, a takedown or a demand for a share of the song.

The sensible response is to treat the splitter as a study and replay tool. Separate a part to hear how it works, then replay it, and you have reduced a two-licence problem to one. If you work in an AI-assisted tool such as Veena, the same rule holds: anything you pull into a session from someone else's record needs clearing, whatever the tool does to it afterwards.

There is a fairer fix the industry keeps avoiding. Bridgeport itself suggested labels and artists could agree a fixed schedule of licence fees. Two decades later, clearance is still slow, opaque and priced case by case, which favours the producers with lawyers. Pre-cleared catalogues help at the margins. A published, standard rate for short master samples would help everyone else.

This is general information about US law, not legal advice. Other countries treat sampling differently.