Many songs now incorporate loops, re-used drum tracks or portions of other artist's songs to the point that those elements may constitute the entire piece. With recycling of other's recorded performances in small sections of songs becoming commonplace, I think every songwriter will benefit from knowing what rights they have and do not have to use that material.
If you're writing a song, recording a demo or producing a master for public release and decide it will be based in whole or in part on a drum performance that's already been recorded you are safe to use it without additional licensing if you take the part from consumer drum plug in software or from a drum machine because it's implied at purchase that's what the purchaser will be using it for. If however, it's a live drum track recorded in a studio as part of some other song, you likely need to contract with the original drummer to use it. That's true even if you paid for that first performance, unless that instance was for the specific purpose of additional re-use and you have a contract stating that. Ditto all of the above for sax parts, guitar tracks, keyboards, vocals and other instruments.
What about borrowing part of an entire recorded song from your favorite band? I had an interesting situation arise recently regarding just that while producing a demo for a songwriter. He wrote a tribute country song to Johnny Cash, with the intention of using an actual recording of Johnny Cash's voice speaking his trademark, "Hello, I'm Johnny Cash" followed immediately by a few bars of Cash's "Folsom Prison Blues" as a fade out.
We had to track down the original rights holders and request permission to use both the spoken portion and the music before going ahead with using the Johnny Cash performance. Johnny's son, John Carter Cash, was kind enough to forward the information we needed. While waiting for permission to be granted, a demo version without that performance was signed by a music publisher. So now there are two versions and possibly a third as the songwriter is considering re-recording the Johnny Cash performance with a Johnny Cash tribute band in order to avoid recurring licensing fees.
Realize that a song, and a song's recorded performance are not the same thing. In regards to re-recording a song, a songwriter has the right to choose who first releases it. Once it happens though, there is no longer a right of refusal. Anyone can then get a license. Do you want to record and release Led Zeppelin's classic rock hit "Stairway To Heaven"? Simply file a mechanical license with the publisher and do it, they can't stop you even if you sing it off key :) That goes for any song of any genre that's been released publicly. Now an actual recorded performance can be licensed for re-use on a case-by case basis. Permission can be refused or granted in each case. Note that "public domain" has nothing to do with either situation- that's free use and a song has to be at least seventy years old in most countries to qualify.
What about samples? Obviously you can use a sampler to record a tree falling in the forest (unless no one's around, then it doesn't make a sound so how could you record it, right?) A bird chirping or some other natural sound can surely be recorded without a license...or can it? What if the bird is a trained performer and a member of the Actor's Guild? Hmmm...I believe that would indeed require a license. A single kick drum sample probably doesn't require a license as it's a simple sound, not a performance.
As you can see there are many common situations well defined by copyright law but there are others that are less so and can be confusing. Obviously this is an article, not legal advice and there are variations that may not be addressed. Definitely consult a lawyer if you're unsure of your rights in a given situation but reusing others work appears to be a trend that is on the upswing and will likely be a permanent part of creating music. So use those loops and samples to your heart's content but be sure to get the proper license to cover your...well let's just say to cover your legal end.
