The Song Remains the Same: Music Sampling in the Digital Age

Ben Challis LLB MA Barrister at law

Sampling can be simply defined as the incorporation of pre-existing recordings into a new recording. It can be extended to include the incorporation of part or the whole of a 'tune' (a melody) and/or lyrics into another work. Copyright subsists in sound recordings and in the music and lyrics to a song pursuant to section 1(1) of the Copyright Designs and Patents Act 1988 (CDPA). The CDPA provides in section 16(1) that the owner of a work has a number of acts restricted to him or her which are to: Copy the work (b) Issue copies of the work to the public (c) Perform, show or play the work in public (d) Broadcast the work or include it in a cable programme and (e) Make an adaptation of the work and do any of the above in relation to such adaptation. Therefor any kind of sampling without the consent of the copyright owner will prima-facie amount to infringement. In both the UK and the USA there is an instant copyright infringement or violation when a song is sampled without permission as it is the unauthorised use of copyrighted material owned by another. To be clear, sampling without permission will usually violates two copyrights - in the sound recording copyright (usually owned by and artist or their record company) and the copyright in the song itself (usually owned by the songwriter or their music publishing company). In order for another party to carry out any of these activities, they must first gain consent from the original copyright owner or their agent such as the UK collection societies (the Performing Rights Society, Phonographic Performance Limited) which manage copyrights on behalf of copyright owners.

US attorney Michael McCready properly points out that in almost all circumstances a licence needs to be obtained before sampling. The results of failing to do this can be disastrous. Recently Dr Dre protege Truth Hurts learnt this to their cost. Truth Hurts had used a four minute sample from Indian composer Bappi Lahiri in their debut album and single Addictive without permission or credit. A federal judge in Los Angeles ruled that Addictive must be removed from shelves unless the composer Bappi Lahiri's name is added to the credits as the author of the sampled work "Thoda Resham Lagta Hai" composed by Lahiri for the 1987 Indian film Jhoothi. Lahiri is seeking compensatory damages in excess of $1 million. The Verve counted the cost of a borrowed melody when the UK courts awarded ABKCO, owner's of the Rolling Stone's The Last Time, one hundred percent of the royalties resulting from the exploitation of the Verve's "Bittersweet Symphony" which borrowed from the Stones' work. In 1990 US rapper Vanilla Ice also counted the cost of using the recorded bass line and the melody of the Queen/David Bowie track Under Pressure in his Ice Ice Baby single, loosing one hundred percent of his royalties to the established stars.

McCready advises that the use of samples without the proper clearance licenses leaves the sampler open to heavy penalties in the USA. Even at a basic level...

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