Music Sampling and Copyright Law

Thou shalt not steal.

This biblical quote began the judge’s sentence in the US landmark case of Grand Upright Music v. Warner Bros. Records[1] An injunction to prevent further copyright infringement by signed rapper, Biz Markie was granted. The song Alone Again by Gilbert O’Sullivan had been sampled in a track on Markie’s I Need a Haircut album. The decision changed the attitude of hip hop artistes to sampling forever. 

Definition

Music sampling is simply incorporating a portion from a previously recorded song into a brand new song. Sampling can include “taking a portion of the drums or guitar rift and can extend to utilizing an entire chorus or a complete verse from a song”.[2] It might entail repeating a sampled section over and over to form a loop or even creative manipulations where the speed or pitch of the original sample is changed.[3]

Background

The history of sampling goes back all the way to the Beatles borrowing from the French national anthem La Marseillaise for their hit track All You Need is Love in 1967. FACT magazine notes that Stevie Wonder's 1979 album Journey Through the Secret Life of Plants may be the first album to make extensive use of samples.[4] Sampling has influenced all genres of music including pop, hip hop, and electronic music.[5] It is however the very foundation of hip hop music, a genre that emerged in the 1980s, with producers sampling funk and soul records.

Legal restrictions have arisen against sampling. The moral argument against this is that it restricts creativity. Many affirm that no song or genre is brand new, only a modification of something prior or a product of combinations. Sampling has potential to popularize an existing song. For instance, the Desiigner track Panda topped the Billboard Hot 100 after Kanye West sampled it on Father Stretch My Hands, Pt. 2.[6]

Sampling and copyright infringement

Sampling without permission can infringe copyright. In the US case of Grand Upright Music the court held that unlicensed sampling constitutes copyright infringement. The result of a court judgment can be devastating. In this case for instance, instead of asking for royalties, “O'Sullivan forced Biz Markie's label Warner Bros to recall the album until the song was removed”.[7]

The process of acquiring permission for a sample is known as clearance, which can be complex and expensive. This is because there are two set of rights in a song – a composition (lyrics, melody) and sound recording (the audio recording). Sound recording copyrights are owned by recording artists and their record labels while compositions are owned by the songwriters and publishers. Thus, an artiste who intends to clear might need to obtain two licenses: one license for the usage of the master recording and one license for the usage of the underlying composition. 

Samples from well-known sources are often “prohibitively expensive” so artistes prefer obscure recordings. To avoid legal problems, producers may recreate a recording rather than sample it. This requires only the publisher's permission.[8]

Sampling in foreign jurisdictions

1.       United States 

One interesting case of music sampling catches the eye. Rihanna’s hit song Please don’t stop the music sampled parts of Micheal Jackson’s 1983 hit Wanna be startin something. Rihanna claimed that she sought permission. However, it was discovered that Michael Jackson had himself sampled the exact fragment from Soul Makossa, a 1972 disco song by jazzman, Manu Dibango. In 2009 and at the age of 75, the Cameroonian sued both artistes for copyright infringement.[9]

In the US, many cases have arisen regarding sampling and copyright infringements. In 2015, the family of late soul singer, Marvin Gaye, sued American artists, Robin Thicke, T.I and Pharrell Williams. They claimed Thicke’s song Blurred Lines was a rip-off of Gaye’s song Got to give it up. The artists were ordered to pay 5.3 million dollars to the Gaye’s estate.[10] American rapper, Travis Scott agreed to give 50% of the rights in his hit single Antidote to clear a sample he made of All I Need.[11]

In the US, a workable defense to a suit of music sampling is the doctrine of fair use. Fair use has been defined as “the right to copy a portion of a copyrighted work without permission because the use is for a limited purpose, such as for educational use in a classroom or to comment upon, criticize, or parody the work being sampled.” The courts would look at the following factors in determining fair use: First, that you did not take a substantial amount of the original work. Second, you transformed the material in some way. Finally, that you did not cause significant financial harm to the copyright owner.

2.     United Kingdom

Notably, Ed Sheeran, a British singer, faced a $20 million suit in 2016 over the claim that his song Photograph was a dub of Amazing by Matt Cardle.[12]

The U.K. Copyright, Designs and Patents Act 1988 (CDPA) provides that only the owner of a work can copy it; issue copies or lend or rent copies of the work to the public; perform, show or play the work in public; broadcast it; and make an adaptation of the work, or do any of the above in relation to an adaptation. Any kind of sampling without the consent of the copyright owner amounts therefore, prima facie, to infringement.

UK law and US law are similar to the extent that “recognizable” use is infringement, such that “infringement occurs whenever a listener hearing a bar of music can easily identify a similar sounding piece of music”. The UK however extends this to a “substantial use” doctrine that provides that “infringement must relate to as substantial part of the original work”. Each court case has largely been determined based on its peculiarities.

Music sampling in Nigeria

The Nigerian music industry is constantly proliferated by music samples. The Nigerian Artist Flavour released Nwa Baby (Ashawo Remix) in 2011 and it became an instant hit. Flavour had actually sampled another song Sawale by Rex Lawson. Sawale was released in the 1960s. Lagbaja’s Gra Gra was sampled in Davido’s If. Kojo Funds and Abra Cadabra’s Dun Talking was sampled in Davido’s Fall. Wizkid’s Caro was sampled in Yemi Alade’s Johnny.

The most sampled artist in Nigeria’s history is unarguably Fela Anikulapo Kuti. The examples are too numerous to detail. Some of this decade’s greatest hits are said to be “inspired” by the afrobeat legend. Wizkid, on Jaiye Jaiye sampled Fela’s Lady, Oritsefemi’s in Double Wahala sampled Fela’s Confusion Break Bones. Burna Boy in Ye sampled Fela’s Sorrow, Tears and Blood. Wizkid’s Sweet Love sampled Fela’s Shakara. Beyond these obvious examples, international acts such as J-Cole, Nas, Bilal and Missy Elliot have sampled Fela in identifiable tracks.[13]

The concern in Nigeria regarding the sampling of Fela’s music is more moral than legal – that is, whether it is within the original context of socio-political advocacy. Ayomide O. Tayo of Pulse.ng gives examples in his article.[14] The song Temper remix by Skales and Burna Boy is an interpolation of Sorrow, Tears and Blood by Fela Kuti. The original version was notably inspired by a tragic event in the artist’s life. However, the latest version was distorted to reflect the artists’ idea of having a fun time. Ayomide notes that on the contrary, Falz’s fourth solo album titled Moral Instruction which repeatedly features samples from Fela Anikulapo-Kuti but “does not stray from Fela’s ethos”.[15]

Though music sampling is common in Nigeria, there has not been a single report of a successful sampling or related copyright suit in Nigeria. This raises a lot of questions as to the awareness of Nigerian artistes.[16] What do they know about copyright protection? Are these many samples successfully cleared? Is the adjudication system dissuading a few from seeking legal remedy? Is it easier to call out defaulting artistes on radio and social media?

A few, recent examples of brewing conflict come to mind however. In May 2018, Tekno in his song Jogodo sampled Pologo by popular duo, Mad Melon And Mountain Black (Danfo Drivers) and was immediately accused of copyright infringement. This matter was seemingly settled behind-the-scenes as the trio later posed for a friendly Instagram post. Later, in August 2018, international act Ciara made her Afrobeat debut with Freak Me featuring Tekno. The track contained heavy sampling from Tiwa Savage’s Before Nko and was clearly without the artist’s permission. Shortly after, Ciara took to Twitter to “thank” Tiwa Savage for “inspiration”.

The Nigerian Copyright Act

To reiterate, there are two set of rights to be protected in a song – a composition (lyrics, melody) and sound recording (the audio recording). Sound recording copyrights are owned by recording artists and their record labels while compositions are owned by the publishers and songwriters. Under the Nigerian Copyright Act, compositions are referred to as “musical works”.

Under the Nigerian Copyright Act, works eligible for copyright include literary, musical, artistic, cinematograph films, sound recordings and broadcast works.[17] Thus, musical works and sound recordings are copyrightable, although separately. There is no judicial clarity to the matter of music sampling so logical deductions will now be made from the Copyright Act.

1.      Musical works

Under section 51 of the Nigerian Copyright Act, musical work is defined as any musical composition and includes work composed for musical accompaniment. An author in the case of a musical work means the creator of the work. Copyright in a musical work subsists for a period of 70 years to be calculated from the year the musical work was published.[18]

A musical work is only eligible for copyright when sufficient effort has been expended on making the work to give it an original character; and the work has been fixed in any definite medium of expression now known or later to be developed, from which it can be perceived, reproduced or otherwise communicated either directly or with the aid of any machine or device.[19] Copyright does not protect an artist's idea of a song, for instance. Compositions must be contained in a "definite medium", this extends to writing and MP3 recordings.

According to section 6 of the Act, copyright in the case of a musical work includes the exclusive right to make any adaptation of the work. Adaptation is defined by section 51 to mean the modification of a pre-existing work from one genre of work to another and consists in altering work within the same genre to make it suitable for different conditions of exploitation and may also involve altering the composition of the work. Music sampling is seemingly an “adaptation” of a musical work and the right to do so is therefore vested exclusively in the composer/songwriter.

Finally, a musical work shall not be ineligible for copyright by reason only that the making of the work or the doing of any act in relation to the work involves an infringement of copyright in some other work.[20] This means that unlicensed sampling does not deny the defaulting song of copyright. For instance, if artiste A samples artiste B’s hit and artiste A is further sampled by artiste C, Artiste A can initiate a suit for infringement as he is protected.

2.     Sound recording

Sound recording means the first fixation of a sequence of sound capable of being perceived aurally and of being produced.[21] An author in the case of a sound recording of a musical work means the artist in whose name the recording was made.[22] Copyright in a sound recording subsists for 50 years.[23]

Copyright in a sound recording is the exclusive right to control the reproduction of the whole or substantial part of the recording either in its original form or in any form recognizably derived from the original. Music sampling typically entails reproduction of a substantial part of a prior recording. Control of this is clearly vested in the artist. The terminology “recognizably derived from the original” provides a useful test for both objective reasoning and adjudication. If part of a song can be recognized to be derived from another, then it is a “reproduction” and copyright is exclusively vested in the artiste or record label.

3.     Infringement and clearing

Section 15 of the Act provides that infringement of copyright occurs when a person does anything which is controlled by copyright without the license or authorization of the owner. Under section 16, the owner, assignee or exclusive licensee of a copyright can sue for infringement of copyright in the Federal High Court. Criminal liability is also imputed for trade in infringing copies.[24]

Section 11 of the Act provides that copyright is transmissible by assignment as movable property. This means that an artist, record label, songwriter or publisher can transfer their copyright in a song to another person. According to sub-section 3, assignment of copyright must be in writing, except the assignment is non-exclusive.

Sub-section 2 further provides that the assignment of copyright may be limited so as to apply to only some of the acts which the owner of the copyright has the exclusive right to control. This strengthens the presumption that in obtaining license to sample music, rights are to be obtained from the artist for the sound recording and the composer for the musical works.

However, Sub-sections 5 and 6 provide for the possibility of co-owners. Accordingly, an assignment of copyright granted by one copyright owner is to have effect as if granted by his co-owner also, subject to any contract between them. Persons are co-owners if they share a joint interest in the whole or any part of a copyright or if they have interests in the various copyrights in a composite production.

It may then be a reasonable deduction from this provision that clearing of copyright can be executed by obtaining a license from the artiste/record label or the composer/publisher provided that there is a contract between these parties. A person who wishes to sample music need not find and clear with both parties separately. In case a record label has a contract with the artiste, songwriter and publisher over one song, the record label only may be approached for clearing.

Conclusion

The utility of these analyses is questionable in the Nigerian context because legal solutions are not sought to issues of unlicensed music sampling. On the rare occasions, an angry Instagram post is where it starts and ends. Again, is the issue with ignorance of copyright laws or the discouraging nature of court process? Or is it that music sampling is not negative from the Nigerian perspective? Is it that enforcing intangible rights is perceived as needlessly restrictive?

Moreso, the argument for music sampling rages on. Sampling is described as one of the best things to happen to music as new tracks constantly expose audiences to old hits. Music enthusiasts argue that combinations and manipulations are the future of creativity, a future that could be threatened by the cumbersome process of clearing. It is granted that the existential challenge of rights is that they are usually caught in between the enjoyment of one and the protection of another. Some ask, what is to be protected anyway? It is 2019. Nothing is original.

Perhaps I should consider the popular words of Jim Jarmusch, an American film director,

Nothing is original, steal from anywhere that resonates with inspiration or fuels your imagination. Originality is non-existent.

[1] 1 780 F. Supp. 182 (SDNY 1991).

[2] Kevin Cornell, Music Sampling: Breaking Down the Basics 9th August 2016 https://www.tunecore.com/blog/2016/08/music-sampling-breaking-down-the-basics.html

[3] Ibid.

[4] McNamee, David Hey, what’s that sound The Guardian 28th September 2009

[5] Untangling the knotty world of hip-hop copyright FACT Magazine 25th June, 2016

[6] Ibid.

[7] George Nelson Hip Hop America 26th April 2005

[8] Steve Gibson & Dave Walters Recreating Samples www.soundonsound.com

[9] Is Sampling Always Copyright Infringement? WIPO Magazine June, 2009 https://www.wipo.int/wipo_magazine/en/2009/06/article_0007.html

[10] https://www.theguardian.com/music/2015/mar/10/blurred-lines-pharrell-robin-thicke-copied-marvin-gaye

[11] Produced by Leon Michels and performed by Lee Fields & the Expressions

[12] David B.S. Sampling in the Nigerian Music Industry https://medium.com/urban-central/sampling-in-the-nigerian-music-industry-29153fda6772

[13] Saminu Machunga 10 famous artistes who sampled the music of Nigerian icon, Fela Kuti https://lifestyle.thecable.ng/fela-anikulapo-kuti-music-sample/

[14] Ayomide O. Tayo Pulse Opinion: Herein lies the true art of sampling Fela Kuti 15th January 2019 https://www.pulse.ng/entertainment/music/the-true-art-of-sampling-fela-kuti/cg8wx9e

[15] Ibid.

[16] UrbanCentralMag Sampling in the Nigerian Music Industry https://medium.com/urban-central/sampling-in-the-nigerian-music-industry-29153fda6772

[17] Section 1(1)

[18] Section 2(3)

[19] Section 1(2)

[20] Section 1(4)

[21] Section 51

[22] Section 51

[23] First schedule

[24] Section 20