Beyoncé brings all the samples to the yard and they're like...it's been licenced

Beyoncé has received backlash on her latest album “Renaissance,” which has resulted in the removal of a sample from her song “Energy” – but not for legal reasons. Headlines such as “Beyoncé Has Removed A "Milkshake" Sample From Her Song "Energy" After Kelis Called It Theft” and “…for allegedly failing to seek permission for usage” suggest that Beyoncé used the sample without the rights clearance, but this is not the case. Kelis is not receiving royalties – and that is an issue - since she is solely a performer of the song, not the copyright owner. The problem for Kelis is with her producers, not Beyoncé.

The songs, songwriters and the rightsholders

Kelis is the performer of a song called “Milkshake” that was released in 2003. The credits and the royalties for this song go to Chad Hugo and Pharrell Williams, who produce together as “The Neptunes.”

Image: yoppy

As readers will likely know, when a song is recorded it has two rights attached to it: in the actual sound recording, and in the musical work which is the composition. [This is how Taylor Swift managed to re-record and release her music to reclaim her rights in the sound recordings, because as the songwriter she was the owner of the songs themselves but not the recordings, so she made new recordings.] These rights are often owned by different people, and are governed by contracts, so who owns what and how much they earn depends on the agreement between the parties.

In 2020, Kelis revealed in an interview that she is not credited and does not receive any royalties from her two albums produced by The Neptunes. She said that she was told everything would be split equally between herself, Williams and Hugo, and so did not double check when presented with the contract. She was 19 at the time of signing the contract and said that she was “blatantly lied to and tricked” but was not aware of the repercussions at first because she had other sources of income, e.g. from touring. “Their argument is: 'Well, you signed it.’ I’m like: ‘Yeah, I signed what I was told, and I was too young and too stupid to double-check it.'" So, due to the contract, Kelis does not own any copyright in the song “Milkshake”, or indeed much of her first and second albums. 

The sample - licenced from the copyright holders but not the performer

Beyoncé sampled “Milkshake” in her new song “Energy” crediting Chad Hugo and Pharrell Williams, as well as several other sample owners and co-writers. [On this track and many others on the album, "Alien Superstar" includes several samples and credits 24 contributors.] Kelis is not mentioned and said that she found out about the sample use at the same time as everyone else. She took it to Instagram and commented: “My mind is blown too because the level of disrespect and utter ignorance of all 3 parties involved is astounding.” 

This has happened because of the way that sample licensing works alongside the two rights. A direct sample of the sound recording engages both the rights which require permission from the owners of the sound recording and the musical work. For example, recently, Ashnikko directly sampled another hit song performed by Kelis – “Caught Out There” taken from the same debut album “Kaleidoscope” - in her song “Deal With it (feat. Kelis).” Williams and Hugo also both appear in the writing credits. 

Beyoncé, on the other hand, did not directly sample the sound recording, but instead recreated the sound herself, known as an interpolation. There are a number of reasons why a song creator might choose to use either a direct sample or an interpolation: it can be a financial decision (unlikely in Beyoncé’s case), or artistic choice based on the meaning behind the use of the sample or the formation of the song. An interpolation only requires clearance for the musical work which is usually owned by the publisher and credits the songwriters. Since Kelis is not credited as a songwriter and does not own any of the publishing rights, legally there was no requirement to clear the sample with her. 

What this means for sampling – playing by the copyright rules is not always enough

Beyoncé still decided to remove the sample from the track, just not for legal reasons. This might have been due to the backlash, or because she sympathised with Kelis, but it was not because she used the sample illegally or infringed any of Kelis' rights. 

The issue here is that Kelis understood that she had a share of the song but signed a contract that did not fulfil that agreement without, it seems, seeking independent legal advice. As we know, this is not an isolated incident; many songwriters and performers find themselves limited by contracts that they signed out of trust and enthusiasm. Songwriters and performers must understand their rights and that the contract decides how the rights and shares of their songs are split. As a result, it is vitally important to check and negotiate the terms of their agreements. 

The concept of sampling is much more than simply extracting parts of another song - it is about transforming an aspect of culture from one context into another. It was first developed in hip hop and rap music and is now an art form used in all genres of music. It was the bedrock of traditional hip hop culture, which evolved from around 1965 in the New York South Bronx, where there was always an ethical understanding that the sample would be used to recreate something new and original, so it never validated simply copying someone else’s work. When sampling music, copyright protects the sound recording and the song, which means that a licence fee is paid to the rightsholders. Who is paid for the sample depends on whether it is used directly or as an interpolation, and the contracts that govern the agreement between the creators. In all this, the case involving Beyoncé and Kelis has shown that the legal requirements are not the only factors to consider when deciding who, and how, to sample.