South Africa: Copyright: Just A Sample

Last Updated: 11 September 2019
Article by Rachel Sikwane

We write about music copyright cases quite regularly. In this article we discuss the issue of whether copying a very short snippet of a sound recording infringes copyright. This issue came up in Europe recently.

Readers who know a bit about copyright will know that European copyright is a minefield, an area of law that is almost impenetrable to those who do not specialise in it. It is therefore with some trepidation that I write these words, but a copyright decision by Europe's top court on a novel issue simply cannot be ignored.

The case involved a name that older readers will recognise, Kraftwerk, a German band whose best known song is Autobahn. This case involved a different Kraftwerk song, a 1977 song called Metall auf Metall. The allegation was that a band called Pelham had electronically copied some two seconds of a rhythm section of Kraftwerk's song and used it in what is known as a "continuous loop" in a song called Nur mir. The act of electronic copying is generally referred to as "sampling", and I will use that term for the rest of this article.

So was the sampling legal? The court made it clear that the owner of the copyright has the exclusive right to copy a very short segment, in other words engage in sampling. In support of this finding, the court made reference to an EU copyright directive, which makes it clear that the objective is to give comprehensive protection to copyright owners because of the significant investment that sound recordings require. The court went on to say that any proviso in German law that allows for sampling is unlawful.

But, said the court, if a sample is modified in such a way that it is "unrecognisable to the ear", then it is not a reproduction of the work. In such a case the court felt that a balancing act is required, one involving the intellectual property rights on the one hand and freedom of expression on the other, with sampling being regarded as a form of artistic expression.

Finally the court said that a defence that had been raised in this case, the defence of quotation, a well-known copyright defence that, for example, allows you to quote pieces of writing provided that you don't go overboard and provided that you acknowledge the source, cannot apply in a case like this. Why? Because, said the court, the defence of quotation is one that directly relates to issues of discussion or criticism, so it cannot possibly apply in a case like this where the "quoted work" isn't even identified.

So how would a case like this play out in South Africa? Copyright law in South Africa is, of course, in a state of flux, with a highly controversial amendment bill creating some angst and uncertainty. But on the basis of the law as it stands, a court would certainly focus on whether the sample comprised a "substantial part" of the work enjoying copyright, with the emphasis being on the quality rather than the quantity of the work copied. The work enjoying the copyright could obviously be a sound recording, but it could also be a musical work.

If the sample was unrecognisable, my view is that a court would be inclined to find that there was no infringement; it seems unlikely that a court would regard this as copying. As for the defence of quotation, this does exist in South Africa but it does require fair practice and, critically, a mention of the source, so it clearly wouldn't be applicable here.

Copyright cases involving music and sound recordings continue to make the news. We have previously discussed Ed Sheeran's song Photograph which, it is alleged, is a very close copy of a song called Amazing by Matt Cardle. We have also discussed the famous case involving the estate of Marvin Gaye, which sued Robin Thicke and Pharrel Williams. This case related to the song Blurred Lines, which allegedly infringed the copyright in a song called Got to Give It Up, and ended with a USD7.4 million settlement. We also very recently discussed the case of The Verve's Bitter Sweet Symphony. There are now reports that a US court has found that Katy Perry's 2013 song Dark Horse (13 million copies sold) infringed the copyright in a 2009 song called Joyful Noise by Flame.

Some of the cases we have discussed have involved very short snippets or elements, most notably, the famous Stairway to Heaven case. In this case, the issue is whether the opening chord sequence of Led Zeppelin's Stairway to Heaven infringed the copyright in a 1967 song called Taurus by the band Spirit. The case is still ongoing.

The world of music generates a great deal of copyright litigation. It is therefore likely that we will be writing on matters like this for some time.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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