Hayleigh Bosher, Brunel University London

There was lot of excitement leading up to Beyoncé’s album Rennaissance, which was leaked two days before it release. Maybe it could have done with a bit more time, as two songs are set to be rerecorded and released. The song Heated will have ableist language removed from it, while the song Energy will be rerecorded without one of the samples on which it is built.

This second change has been portrayed as a response to the singer Kelis calling the use of the sample “theft”, and to Beyoncé “allegedly failing to seek permission for usage”. But that’s not actually true. While Kelis might not have been paid for the sample – and that is an issue – that’s to do with her legal contract with her producers, not a failure on Beyoncé’s part.

Kelis is the performer of Milkshake, which was released in 2003. Now you might think she should be getting money for any use of the song. However, the credits and the royalties for Milkshake go to Chad Hugo and Pharrell Williams, together known as The Neptunes, who reportedly wrote and produced it.

In the music industry, when a song is recorded it has two rights attached to it. One in the actual sound recording and one in the song itself. This is why Taylor Swift re-recorded and release her music to reclaim her rights in the sound recordings. She was the owner of the songs themselves but not the recordings, so she made new recordings.

These different rights are often owned by different people and are governed by contracts. So who owns what and how much they earn depends heavily on the agreement between the people involved.

In 2020, Kelis revealed in an interview that she doesn’t make any money from her two albums produced by The Neptunes. She said that she was told everything would be split three ways and so didn’t double check when presented with the contract.

She was 19 at the time of signing the contract and claimed that she was “blatantly lied to and tricked” but didn’t notice at first because she had other sources of income, like 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 doesn’t have any copyright in the song Milkshake, or indeed much of her first and second albums.

In an interview earlier this year with the culture publication Vulture, Hugo brushed off these comments: “I heard about her sentiment toward that. I mean, I don’t handle that. I usually hire business folks to help out with that kind of stuff.”

Different type of samples

The sample of “Milkshake” in Beyoncé’s new song Energy is credited to Chad Hugo and Pharrell Williams, but not Kelis. The Milkshake singer commented on Instagram: “My mind is blown too because the level of disrespect and utter ignorance of all three parties involved is astounding.” And said that she found out about the sample use at the same time everyone else did.

This has happened because of the way that sample licensing works alongside the song rights and the sound recording rights.

When you sample directly, you take the sound recording and cut and paste it into a new song. This means you are using both the sound recording and the musical work, and so need permission from both owners.

For example, the artist Ashnikko recently 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 relate to budget (unlikely in Beyoncé’s case), or artistic choice based on the meaning behind the use of the sample or the formation of the song.

For example, in a dance track it’s common to use the sound recording and lean towards more of a remix. Whereas an interpolation can be more about building on a theme or making a cultural reference.

An interpolation only requires clearance for the musical work that is usually owned by the publisher and credits the songwriters. Kelis is not credited as a songwriter and doesn’t own any of the publishing rights, so legally there was no requirement to clear the sample with her.

So Beyoncé may have decided to remove the sample due to the public backlash, or because she sympathised with Kelis. But it does not appear to have been for legal reasons and it certainly wasn’t the case that she stole the sample.

Hayleigh Bosher, Senior Lecturer in Intellectual Property Law, Brunel University London

This article is republished from The Conversation under a Creative Commons license. Read the original article.