UK: Songs And Samples

Last Updated: 22 June 2016
Article by Luke Hill

Recent music cases involving both types of copyright have shown once again that where there's a right, there's a fight – especially where significant cash is at stake. In this article, we will briefly examine some of the recent cases and settlements both home and abroad, discuss how the law is developing and highlight the implications for artists and rights holders.

One song? Two rights:

There are, broadly, two distinct copyright works in each and every recorded song:

1 – the copyright in the song itself (the melody and lyrics), and

2 – the recording of the song.

Publishing companies exploit and commercialise number 1. Record companies number 2.

Whose tune is it anyway?

First up – copyright in the song itself. Disputes concerning rights to a song tend to fall into two camps: writers arguing over who wrote a song; or a writer claiming that a new song is a copy of a pre-existing song. There have been numerous cases involving both types of claim over the years, but recently there has been a spate of very high profile and public wrangles on the latter type so we will concentrate on these.

The first of these recent spats saw the estate of legendary soul singer Marvin Gaye sue singer Robin Thicke, uber-producer Pharrell Williams and rapper T.I. in the USA. The case was brought for infringement of the copyright in Gaye's disco/funk stomper "Got To Give It Up". A US jury found that "Got To Give It Up" had been copied by Pharrell and Thicke and formed the basis of the 2013 hit "Blurred Lines". The Court awarded Gaye's estate in the region of US$7.3 million and Marvin is now one of Blurred Lines' credited writers.

One interesting point to note is that the case was brought on the basis of the written score or "lead sheet", which was submitted to the US copyright registry. Unlike in the UK, in the USA, works have to be registered in order to qualify for copyright protection. In the initial pre-trial skirmishes, the Gaye estate had requested a royalty on the basis that Blurred Lines copied the "feel" or "groove" of the earlier work – something that it would be very difficult to derive from the lead sheet which set out only the melody, chords and limited performance cues. Yet that is exactly what Gaye's team were able to do – rationalise the lead sheet down to a number of distinct elements that were protected and that, when taken together, formed the basis for Blurred Lines.

That case has been appealed and it will be interesting to see how things develop. If upheld, it may well open the doors to similar suits in circumstances where new compositions try to emulate the sounds of bygone eras – something which has been commonplace in popular music for decades.

Although not the subject of a writ, Sam Smith found himself adding Tom Petty (of Heartbreakers fame) and Jeff Lynne (of the Electric Light Orchestra) to the list of credited writers of his morose smash "Stay With Me". Mr Petty's representatives had apparently written to Smith pointing out that Stay's descending melody bore a significant resemblance to Petty's hit "I Won't Back Down". Petty and Lynne now lay claim to 12.5 per cent of publishing revenue generated from Smith's track.

In an apparent anticipation of trouble following the Blurred Lines case, Mark Ronson's funk pastiche "Uptown Funk" quietly had additional writers added to its credits – namely the writers behind The Gap Band's "Oops Upside Your Head".

Turning to current cases, 14 June 2016 saw members of rock behemoth Led Zepplin in court in Los Angeles to defend allegations that their seminal classic "Stairway to Heaven" does not breach copyright in an earlier song, "Taurus" by a group called Spirit. The songs clearly share similar descending motifs, so again it will be interesting to see how the US Federal courts decide the case.

Earlier this month, Ed Sheeran became the latest songwriter to be sued in the USA over his song "Photograph". The same legal team that represented the Gaye family in the Blurred Lines case is representing the songwriters who penned the song "Amazing", sung by X-Factor winner Matt Cardle. They are seeking in the region of US$20 million. Unsurprisingly, they have filed their case in the USA, presumably to try to take advantage of the Blurred Lines judgment.

Sample examples

The other copyright in a song is, of course, the recording itself. As we shall see, recent cases demonstrate that times may well be changing.

Artists in many genres, especially hip hop and its derivatives, are well aware of the commercial and artistic power of a good sample. Sampling someone else's recording can add instant atmosphere and credibility to a production, as well as tapping into your audience's collective nostalgia for a song, genre or time.

Following a series of high profile US decisions, (notably Bridgeport Music v Dimension Films, which held that any use of a sample, even if totally unrecognisable, is copyright infringement) using an un-cleared sample in a record could lead to trouble for the owner of the new record.

However, two recent cases, one from Germany and one from the USA, may see us at the beginning of change in attitudes towards the use of short samples in new works.

Germany's Constitutional Court recently ruled that artist Sabrina Setlur was allowed to use a loop sampled from a two-second snippet of Kraftwerk's song "Metall auf Metall". The long-running case has been through numerous appeals – notably an earlier Federal Court of Justice decision stated that using "even a tiny sliver" would be an infringement.

In the latest appeal, the Constitutional Court noted that certain music relies on sampling, and that recreating the sound of a sample was often too costly and time consuming to be practical. It also noted that the commercial effect on the original song was minimal.

So, it appears that the German Courts have relaxed the position somewhat from the zero tolerance approach previously taken.

(Hip) Hopping across the pond, the US Ninth Circuit Appeals Court recently applied the "de minimis" defence to the use of a sample of a horn stab from a song called "Love Break" in Madonna's nineties hit "Vogue". This is again a step back from the Bridgeport decision and may clear the way for artists to incorporate short samples of others' recordings into new compositions.

This of course has not stopped rights holders from asserting their rights, and only last week, Justin Bieber and Skrillex were sued by independent artist White Hinterland over the Bieber hit "Sorry". There appears, on first listen, to be a distinctly similar hook in Sorry and Hinterland's "Ring the Bell" but Skrillex has posted a video on social media detailing how the hook in their production was made and claiming that it was not stolen.

If the hook was not sampled, Skrillex and co could still potentially infringe, if the Court decides that the hook was copied from White Hinterland's underlying song – a neat example of how music rights can and do overlap.

Summing up

There is no question that a good well-chosen sample can positively affect sales – that is why artists continue to sample. Sampling a classic drum break that was recorded by a great player at the peak of analogue recording technology in a lavish and acoustically fantastic studio can lend a track a professional gloss and tap into listeners' nostalgia, without the producer having to fork out for the session. As the German courts noted, a sampled track is not going to be damaged by the use of the sample in a new work. So, there remains a balance to be struck – on the one hand rights holders need to be paid for the use of their (often expensive and skilled) copyright works, but new music should not be held back by rights holders holding them to ransom over the use of samples. Over to the courts...

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.