SAMPLING,REPLAY/INTERPOLATION,MASHUPS IN THE MUSIC AND ENTERTAINMENT LAW
Author: Abhinav Pandey, II year of B.A.,LL.B.(Hons.) from University of Lucknow
The technique of Digital Copying a piece of an existing recording and placing this “Sample” into a new recording is known as sampling. Despite the huge popularity of such songs, there is an imposing threat to copyright infringers who without prior permission of the original song makers the sound recording artist, the lyricist, the music composer, incorporates the material part of the pre-existing song in their musical work. In case, a refashioned song is made available on a commercial platform without taking license from the original creators, the song maker can be held liable for infringing copyright primarily. Even the websites which provides a platform to the primary infringers and uploads their pirated works can be held liable as secondary copyright infringers. Though copyright infringement is per se illegal irrespective of the damage caused, it is quite evident that more the refashioned song gets popular, enabling extraction of huge commercial benefits, the probability of facing a lawsuit becomes high.The amount of appropriation required for actionable copying, on the other hand, is still unknown. More than that, sampling music has transformed the way music is made. The issue arises when some musicians use the universal exception of “Fair Use” to justify the violation of copyrighted music.
Composition and Sound Recording Copyrights
In a 1952 issue of the Chicago Daily Tribune, journalist Will Leonard described the idea of covering a song as “trade jargon meaning to record a tune that looks like a potential hit on someone else’s label”. There are also several concerns on the part of the original music composers that companies making cover versions, remixes and music videos of their compositions are debasing the compositions. In the case of The Gramophone Company of India Ltd vs. Super Cassette Industries, the Hon’ble Judge has remarked,A version recording, we are told, is a sound recording made of an already published song by using another voice or voices and with different musicians and arrangers. Version recording is thus neither copying nor reproduction of the original recording”. Infringing copy” with reference to a sound recording, which is relevant, is defined under Section 2(m) (iii), thus: “infringing copy” means,- in relation to a sound recording, any other recording embodying the same sound recording, made by any means. Section 13 defines the works in which copyright subsists. It provides that copyright shall not subsist in any sound recording made in respect of a literary, dramatic or musical work, if in making the sound recording; copyright in such work has been infringed. Section 14 specifies the content of the rights comprised in the “copyright.” Section 14(e) of the Copyright Act deals with sound recordings.
The Copyright Amendment Act, 2012
The Copyright Amendment Act, 2012 brought in a phenomenal change with respect to the rights of music directors, lyricists and performers. Section 31C of the Copyright Amendment Act, 2012 deals with statutory licenses that can be obtained for making a sound recording in respect of any literal, dramatic or musical work. “Cover version” means a sound recording made in accordance with the above-mentioned section. There can be two forms of licenses that legalise this action i.e. Statutorylicenses and General licenses. While a statutory license is governed by the provisions of this Act, a general license is made on the terms and conditions as agreed upon between the licensor and licensee. This section also lays down various other rules which one has to abide by while making a cover. The person making the sound recordings should give prior notice of his intention to make the sound recordings.
Copyright Protection in Musical Work
Section 2 (P) of the Copyright Act
Music work is defined underSection 2 (P) of the copyright act of 1957 and includes works composed of music and containing graphic symbols. The original song is Formalised, Modified and Transferred to the category of the original work. Use sound to create new music by Adding, Mixing and Deleting certain aspects of the original song.
Section 52 (1) (j)
Section 52 (1) (j) stipulates that specific uses and modifications of works such as music and sound recordings require the copyright owner's consent. It constitutes a legal license to use a copyrighted work in a certain way, provided that the user pays the necessary fees and complies with the law.
Gramophone Co v. Super Cassettes
In the Case of Gramophone Co v. Super Cassettes, the court held that obtaining the assent of the original owner of a piece of music is essential. The court gave the opposite view in the case of Gramophone Co v. Mars was that so long as the situations of section 52 (1) (j) of the act are followed, there might be no infringement, there isn't any necessity of acquiring an assent. Super Cassette Industries limited v. Bathla Cassette Industries. The Court has decided not to change the singer's vocal performance because it is an integral part of the song and cannot be changed, not including prior consent of the owner of a musical work according to section 52 (1) (j).
Section 57 of the Copyright Act
Section 57 of the Copyright Act defines moral rights. Amar Nat Sagal v. Union of India, it has been determined that the author's moral rights are the lifeblood of his plant. You have the right to conserve, guard and develop your works, whether they belong entirely or partly protected by copyright.Although the world of music copyright law is quite complicated, it is not difficult to protect a piece of music and collect royalties for it, at least not mechanically. All you have to do is register your copyright, join the necessary debt collection agency and choose a distributor.
Sampling is the process of using portions of an existing audio recording in a new recording. Samples can be anything that has been recorded, including music, dialogue, sound effects and more. Samples can be used in a variety of ways: as musical accompaniment for an entirely new track, as snippets of spoken or sung phrases or simply as atmosphere or texture. While sampling is most associated with hip-hop, the technique is also used in many other genres of music.
Sampling was originally developed by experimental musicians working with musiqueconcrète and electroacoustic music. These musicians would sample audio by physically manipulating tape loops or vinyl records on a phonograph. It has since evolved into a musical language that almost defines today’s pop culture. Much of today’s popular music contains samples from other songs.
Music Sampling in US
The US deals with music sampling a bit differently. In the US, the doctrine of fair use can be applied. The defence of ‘fair use’ is very limited and can be used only in specific purposes which includes parody, criticism, news reporting, research, education and similar non-profit use.
Acuff-Rose Music v. Campbell
The US Supreme Court reversed the decision of lower court stating that the use of pre-existing work in a new song could be ‘fair’ and what is fair has to be construed according to the facts of each case.
A Mashup is a piece of recorded music that is comprised entirely of samples taken from other recordings and remixed to create a single new track. A standard mashup encompasses sample from two or more pre-existing songs, involving different artists, integrated into one track by manipulation of elements like tempo and pitch of the vocals as well as the instruments. Mashups are exclusively made by combining pre-existing tracks whereas in remix, samples are combined with a new content.
What is Interpolation?
Interpolation is more prevalent in the industry, and it involves taking part of a record and recreating it in another record. Imagine it like seeing a chair you like and getting someone to make a similar chair for you to put in your living room, instead of buying that exact chair for your living room. Since clearing samples is quite expensive and takes a lot of process, artists have taken to interpolating records, which obtaining permission for is quite easier. For interpolation, you only need to get permission from the original composer of the melody you are interpolating.Though rare, the owner of the record may refuse to grant permission for you to sample or interpolate their records. It is important to note that sampling or interpolating without express permission from the owner is intellectual property theft and could result in a major lawsuit against you or the artiste sampling a record.
The US Circuit Court and the Future of Sampling
Litigation over sampling has been a reality for over 50 years but for much of that history, the controversy has concerned very significant and obvious samples.Perhaps the most famous of such cases is Campbell v. Acuff-Rose Music, Inc., better known as the “Pretty Woman” lawsuit. In that case, Acruff-Rose Music, rightsholders to the Roy Orbison song Oh, Pretty Woman, sued 2 Live Crew and their label over their song Pretty Woman. 2 Live Crew had heavily sampled the original, including drum, bass and guitar riffs but claimed that the song was a parody. The case would eventually make it to the Supreme Court in 1994, which ruled that the sampling was a fair use, creating a standard that has gone on to be a key one in many fair use cases to come. More recent cases, however, have focused on smaller and smaller samples. At the forefront of that push has been TufAmerica, a company that has acquired the rights to a large number of songs used in samples and has aggressively filed lawsuits over them, sometimes without the knowledge or participation of the sampled performers/composers. For example, in 2012, TufAmerica filed a lawsuit against Jay Z alleging the rapper’s 2009 song Run This Town sampled illegally from Hook and Sling Part One by singer-pianist Eddie Bo due to a sampled “Oh”. That lawsuit was dismissed in 2014 when the judge ruled that one syllable didn’t qualify for copyright protection. Jay-Z is far from alone as TufAmerica has also targeted Beastie Boys, Kanye West and Frank Ocean to name a few. Though TufAmerica has been able to secure some settlements, they haven’t always succeeded in courts. Their 2012 action against the Beastie Boys for samples of the go-go band Trouble Funk, for example, failed when it was discovered that they didn’t actually own the copyright. These lawsuits are aided by new software that can detect samples that, previously, were next to impossible to identify using the ears along. Additionally, websites like Who Sampled that create libraries of known samples may unwittingly help in the proces. In short, technology has made it possible to spot samples the same way that we spot reused and plagiarized text, down to snippets that would be almost impossible to detect any other way. But with the increased litigation comes increased scrutiny from the courts, and those courts haven’always aligned with the Bridgeport decision.
Doctrine of fair Use
Doctrine of fair use is a defense to copyright infringement that allows restricted use of copyrighted work without the owner' s permission. Fair use doctrine was fabricated in order to protect the right to freedom of expression for works which are precious and valuable to society. Section 52 xvii of Indian Copyright Act deals with fair use doctrine. According to Section 107 of US copyright Act, in order to take this defense, the defendant has to qualify a four factor test the 'purpose and character of the use,'the 'nature of the copyrighted work,'the 'amount and substantiality of the portion used in relation to the copyrighted work as a whole' and, the 'effect of the use upon the potential market for or value of the copyrighted work.' Though no single factor of the fair use test is necessarily determinative, the ' ;purpose and character of the use' of the infringer' s work normally weighs heavy in the judge' s decision. If the purpose is to make a genuine parody of satire of the original musical work, the alleged infringer can be excused. This doctrine can never be easily applied as this doctrine has very narrow application and is construed according to the facts of each case. Moreover, the risk involved in taking of the defense of fair use is that once the defense fails, one will be liable for copyright infringement. If a composition is completely remodeled into a new work, such as a parody song, it can be considered to be a fair use and hence can be exempted from the liabilities. This doctrine is applicable where a work is created in order to comment and criticize a pre-existing work. However this doctrine is not reliable in case where songs are refashioned and subsequently uploaded for commercial purposes.
In conclusion, music sampling, making mashups and remixes can result in copyright infringement enabling the copyright holders to sue the primary as well as secondary infringers. To avoid this, before incorporating a sample of pre-recorded song into a new song, a clearance license should be obtained from the sound recorder, music composer and the lyricists and royalty fee should be paid to them. just as it is not right to take what belongs to others without their permission, the same goes with copyright law that will not permit the usage especially when financial gain is derived from such – of another person's intellectual property with the appropriate approval licence. Thus, before any sample or interpolation is done, it behoves the person who intends to make use of the work of another to get such work cleared to prevent a legal suit against him or her; financial loss and sometimes reputational damage.