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...

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