By Rebekah O’Sullivan and Matt Burgess, Director..
Many musicians are under the misconception that it is acceptable to sample anything less than 4 bars of a song. That was the thinking of the late Adam Yauch (aka MCA) from the Beastie Boys who allegedly sampled songs, ‘Say What’ and ‘Drop the Bomb’ by Trouble Funk and included them on the Beastie’s 1986 album License to Ill and Paul’s Boutique. “Sampling” is taking a small, usually identifiable, piece of a previous song and using it in a new recording. A day before his tragic death, Mr Yauch and the band were served with a lawsuit for alleged copyright infringement. Even though the artist of the recording, Tuf America, passed away twenty years ago, their administrators are pursuing legal action in the US Federal Court.
An important question for artists has always been – just how much sampling from other songs is permitted when creating music while avoiding a copyright breach? The rule generally remains “qualitative” than “quantitative”. This means the significance of the sample in a person identifying the original song will be more than the amount of seconds of the original song sampled.
Music sampling is a double-edged sword. With it, artists are free to create new forms of music. The Copyright Act was created to incentivize artists to continue to be innovative with their music and the Beastie Boys did just that. Critics say there will never be another album like the Beastie’s due to the 300 sampling mixes used in the album. But these strict copyright laws can also place artists at a stand-still. Without the ability to sample, artists are denied the ability to create new forms of music, for fear breaching copyright. Innovation has now become a risky business for musicians!
The Legal side of this story
It is now even harder for artists to defend themselves against such claims. New investigative technology and audio analysis techniques are available to Courts to isolate the suspected portion of recording making it easier to locate infringing sounds. The days of artists being able to cleverly camouflage sampling are now a thing of the past.
The relevant inquiry the Court tests is whether a substantial portion of the protectable material in the plaintiff’s work was appropriated – not whether a substantial portion of a defendant’s work was derived from the plaintiff’s work. In all sampling cases, copying occurs. The question is whether the sample is an unlawful one. For infringement to be found, the value of the original work may be diminished even if only a part of it is copied, if the part copied is of great qualitative importance to the work as a whole. In 1991 a U.S Federal Court ruled that Biz Markie’s use of a few notes from the chorus of Gilbert O’Sullivan’s hit song, “Alone, Again, Naturally” amounted to copyright infringement. Even more daunting for artists is the case of Bridgeport Music v Dimension Films. In this case, 2 seconds of a sound recording amounted to a breach of copyright. Subsequent decisions in Australia and American courts are in alignment with these two cases. So even if you use 2 seconds of the song, ‘Pretty Woman,’ if it is the best part of the song, you have infringed on Roy Orbison’s copyright.
But I didn’t mean it?
Fair use is often used as a defence to these types of cases. To qualify as fair use, the sample must be used for purposes such as parody, criticism, teaching, news reporting, research or non-profit use. Factors assessed by courts when determining whether a use is fair include: the purpose, nature and character of the use; the amount and substantiality of the portion used in relation to the copyrighted work as a whole and the effect on the market.
Conclusion – What this means for artists?
The success of the Beastie album earned them a fortune and had an effect on Tuf America’s market. Now Tuf America wants a piece of the pie, suing for unjust enrichment and punitive monetary damages. A permanent injunction has been sought to stop the use and sale of the music. The lesson is clear and simple: make sure you get permission or a licence from the author or administrators to use their music or face the costly consequences.
This blog is for discussion purposes only. This must not be considered legal advice.
For legal advice on this topic and references to any information in this article, please contact
Matt Burgess, Director:
Phone: +61 405 722 739
matt*bselaw.com.au
Skype:burgoasp
Connect with Matt on Linked In
Image Credit: FreeDigitalPhotos.net
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