It seems every day there’s a new high-profile legal dispute over the use of music sampling and copyright infringement, just recently Tone Deaf reported on the verdict of a case that saw the estate of Marvin Gaye pitted against singer Robin Thicke and super-producer Pharrell Williams, with the Gaye Estate alleging that Thicke and Williams’ chart-topper ‘Blurred Lines’ infringed on one of Gaye’s hits.
As reported by Tone Deaf “what made the case so interesting is that it was not precipitated by a soundalike chord sequence, a cribbed melody, or a stolen set of lyrics. The Gaye estate’s case was predicated on the notion that ‘Blurred Lines’ and ‘Got to Give It Up’ just felt the same. A bizarre case, but an important one to take note of all the same.”
Here however we’re not talking about ‘trying not to sound the same’ but rather the use of samples in music. Even more recently than the Blurred Lines case, young upcoming rapper Mac Miller made career damaging mistake of sampling a song after not receiving permission. As reported “Miller did in fact ask to use a sample from the band Aquarian Dream. But when he couldn’t get through to the band, he just used the sample anyway.” As a result the copyright lawyer wants a judge to force Mac to part with at least $150k in damages. Barring anything unforeseen, it looks like Miller may just have to. Considering that there is a boom in upcoming talented producers that may think about sampling for their art, we chatted to a few experts on what to keep in mind when getting tempted to borrow.
Darren Sanicki: Is a music lawyer and partner of Brisbane/ Melbourne law firm GI & Sanicki Lawyers. Since opening the firm in 2009 (originally Darren Sanicki Lawyers), Darren has consolidated a substantial entertainment industry client base representing some of Australia’s best known bands, artists and creative businesses. He has represented clients in high profile litigious matters including the current Federal Court Case concerning a legend of the Australian music scene and the fixing of a statutory licence for use of an iconic song for the services of the Commonwealth. Darren also represented Michael Barker (Split Enz) in a defamation action against News Ltd and Today Tonight. For more info on Darren and his firm, visit www.gisanicki.com.au
Yolanda Be Cool: Are a dance music duo from Sydney. Comprising of Matt Handley and Andrew Stanley the duo are responsible for hits such as ‘We No Speak Americano’ (via Sweat it Out) which featured a sampling of a 1956 Neapolitan language hit “Tu vuò fà l’americano” by Renato Carosone and written by Carosone and Nicola “Nisa” Salerno. Late last year the duo also released a remix of Sixto Rodriguez’s hit ‘Sugar Man’ which was certified platinum. For more info on the duo visit their label www.sweatitoutmusic.com.
Spenda C: Spenda C aka Steve Lind is no stranger to the Australian bass music scene. With one of the longest standing residencies at the iconic Sydney club, Chinese Laundry, he is hailed by his peers as the leader of the local trap music scene. This credits have seen himrelease music esteemed labels such as Klub Kids, Vicious Bitch, Onelove and Ministry Of Sound. In addition to this, his productions have received worldwide support from A-list DJs including Diplo, Major Lazer, Carnage. He’s currently on a huge national tour, for more info visit his Facebook page.
Know What Copyright Law Is & Who Owns Copyright
Darren: “In simple terms, copyright is a set of exclusive rights that are given to the copyright owner by virtue of the Copyright Act 1968. Copyright protects original works of authorship including artistic, dramatic, literary and musical works (songs), as well as sound recordings, and films. Copyright law provides legal protection to the expression of an idea and not the idea itself and accordingly, works must be fixed in a material form in order to enjoy copyright protection.
Copyright in musical works lasts for the life of the author plus 70 years. In case of sound recordings, copyright protection lasts for 70 years from the date the recording is first published in Australia.
Where copyright protection has expired the relevant works are said to be in public domain. If a work is in the public domain you will not require permission to use it.”
Know When To Sample
Yolanda Be Cool: “The beauty of sampling, when done well, is you are utilizing familiarity of another tune and incorporating it into your own tune so that when people hear your tune, if the sample is good, then they already like it. It’s kinda like starting a 100 metre race at the 70 metre mark. The downside of sampling is the fact you are using someone else’s work means it’s not entirely original in the sense that your tune will be comprise of parts made by people other than yourself – and for that comes a price.
The price, however, is the same as the length of a piece of string. How long can it be? The starting point is the fact that everything is negotiable. There is no set price or rate and depends on how much you want the sample in your tune, how much the sampled wants to be in your tune and somewhere along there, the price will appear. And the rule with needing to clear samples is basically, if you can recognize it, it needs to be cleared. So even a snare drum can need clearing.”
Be Wary Of Misconceptions
Darren: “It is a major misconception among many that if you copy (say sample) less than 10% of a work then you would not be in a breach of copyright. We would like to set the record straight on this: there is no such 10% rule in copyright law and no exact figure on how much you can legally copy another song or sound recording in order to avoid infringing someone’s copyright.
The only legal rule is whether a “substantial part” of the work has been copied or reproduced. In the context of sampling, a “substantial part” is not necessarily “how much” of a work you take, but rather the “quality” of what is taken. It may be that taking even the smallest portion of someone else’s recording or song may constitute a copyright breach if that portion is considered to be substantial part of the original.
There is no such 10% rule in copyright law and no exact figure on how much you can legally copyThere are not many Australian cases on copyright infringement involving sampling. Litigation is prohibitively expensive and most music industry disputes are settled out of the court. Recently of interest in the USA, when Madonna and producer Robert “Sheep” Pettibone were sued by VMG Salsoul for sampling a “Horn Hit” in her song “Vogue”, the Courts held that “no reasonable audience would find the sampled portions qualitatively or quantitatively significant in relation to the infringing work……… (and that)………. any sampling of the Horn Hit was trivial.””
Get Permission To Use A Song
Yolanda Be Cool: “So, we learnt the hard way about sampling. When we did Americano -we just thought it was a fun party tune so put it out without clearing the sample. Then it went to no 1 on beatport and labels started enquiring about signing it and we realized we needed to clear it. Perhaps if we did it pre-release – it might not have been cleared – perhaps we would have got some publishing. As we did it post release, we had no bargaining power and got no publishing – hence why we aren’t rich.”
Spenda C: “If really have to use that sample…get permission. I admit that this is often easier said that done however it could save you some headaches down the road when Madonna throws her lawyers at you because you just had to rip off Holiday (ps. you won’t ever get a Madonna sample cleared so don’t even bother).
For my song ‘Cigarettes’, I used a line form a Less Than Jake song. I didn’t actually sample the original recording, instead I had a friend re record the verse. Once I had the idea down I emailed the band and asked them permission to use their work. They where very supportive of the project and gave me permission to use it.”
Know How To Ask For Permission
Darren: “In the context of music, “sampling” is the act of using a portion, or “sample”, of a sound recording and reusing it as (say) an instrument or other sound grab as part of a different song and/or sound recording.
In order to use a “sample” in a song you will need to obtain permission from the relevant copyright owner of the sound recording and possibly the copyright owner of the musical work. The permission you require will depend very much on the nature of the sample itself, ie whether its just a sound grab of (say) a drum or bass loop, or whether it’s a distinct vocal or melody line (think Michael Jackson’s”Mama-say, mama-sa, ma-ma-ko-ssa” in Rhianna’s “Don’t Stop the Music”).
In most cases, permission to use a “sample” will be granted in the form of a licence. There is no ‘hard and fast’ rule as to the terms of such licence which will be by negotiation and will depend on factors such as the proposed use and the ‘notoriety’ of the sample or the sampled artist.
Note that if you are re-recording the sample of the musical work, you will only require permission from the copyright owner of the musical work. While it can be a daunting task to locate all the relevant copyright owners, APRA/AMCOS and PPCA may be able to assist if you ask nicely.”
What Happens If You Don’t Ask For Permission
[include_post id=”441348″] Darren: “If you sample someone else’s song without their permission, you may be held liable for copyright infringement. Possible consequences for copyright infringement may include the granting of injunction stopping release of your track, an account of profits, an award of damages and may also include an order to pay the other party’s legal costs.
Even though the Copyright Act provides for exceptions to infringement, including research or study, criticism or review, parody or satire, generally these defences are unlikely to apply if the overriding purpose of the use of a sample is a commercial one.
**Hot tip for samplers: if it’s worth copying, it’s probably protected by copyright and you should obtain the copyright owner’s permission to sample it.”
To Avoid Any Headaches
Spenda C: “Record your own sounds. You can do this using a usb mic straight into your laptop, a stand alone sound recorder or even your iPhone! I remember seeing this Rusko video where he needed a snare drum sound so just made the sound with his mouth beatbox style into his desktop microphone, compress, add effects and BAM! He had a snare sound that was totally unique and didn’t have traul through sample packs for hours to find that perfect snare. I’ve also seen Wongo crunch up newspaper to make a weird percussive effect for one of his tracks. You done need to waste time and money on sample packs that every other producer will be using anyway….just think outside the box and get creative.”
Please note: Please note the above is general opinion and should not be taken as legal advice. Should you have any legal enquiries please feel free to GI & Sanicki Lawyers on 03 9510 9888 or [email protected]
