- within Cannabis & Hemp, Law Practice Management and Privacy topic(s)
- in United Kingdom
The recent decision of the Seventh Circuit of the US Court of Appeals in Eddie Richardson v Karim Kharbouch highlights a fundamental difference between sound recording copyright and musical composition copyright when assessing infringement.
Background
The plaintiff, who goes by Hotwire the Producer, created an instrumental hip hop beat called "*Hood* Pushin Weight" which he uploaded online. A number of months later, he was listening to the hit song "Ain't Worried About Nothin" by French Montana and thought the beat was indistinguishable to his own.
He therefore registered his beat with the U.S. Copyright Office as a sound recording and subsequently issued a claim against French Montana. However, he did not also register his beat as a musical composition.
As a result, the court determined that he was required to show duplication or sampling, not mere imitation. The court found no evidence of this and therefore granted summary judgment in favour of French Montana.
The Appeal
The plaintiff appealed the decision of the district court. However, the Seventh Circuit of the US Court of Appeals affirmed the district court's grant of summary judgment in favour of French Montana.
Sound recording copyright provides protection only for the actual sounds fixed in a recording, here being the digital audio of Hotwire the Producer's beat. Therefore, in order to establish infringement he had to show that the digital audio itself had been duplicated or 'sampled'. Similarity or imitation alone was not enough.
Ultimately, he could not prove that the sound recording had been sampled. There was no direct production evidence of sampling (such as DAW files, producer witness evidence or stems). In addition, whilst his expert stated that the two beats were "shockingly similar" and that sampling is standard practice in hip hop, he did not state that "Ain't Worried About Nothin" actually sampled "*Hood* Pushin Weight", nor did he analyse the recordings to identify copied waveforms or audio fingerprints.
There was also no direct evidence, and the mere fact alone that Hotwire the Producer had posted the beat online did not automatically mean access for copying - let alone access to the actual digital file in order to sample it.
Comment
The case hits home on an important distinction between copyright in a sound recording and copyright in the underlying musical composition. For there to be infringement of copyright in a sound recording, the recording itself must have been duplicated.
This commonly occurs when an earlier sound recording is sampled, with that sample then being used in a later recording (think golden era 90s hip hop).
However, even if a later recording sounds identical, if the actual audio from the earlier recording is not taken, there will be no infringement of the earlier sound recording (although there could be infringement of the underlying musical composition).
In the UK, there is no requirement to register a copyright work. Therefore, if the above claim was issued in England, the plaintiff could have pleaded infringement of both the sound recording and musical composition. However, if he could not get over the hurdle of proving access to his beat for copying then the end result would be the same.
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.
