Intellectual Property Rights

Assignment
Inderjeet Singh
2016IPM045

INDIAN INSTITUTE OF MANAGEMENT INDORE

PRABANDH SHIKHAR, RAU-PITHAMPUR ROAD,
INDORE-453556, INDIA
Musicians worldwide have been inspired by music created by other
musicians. They have used samplings of such music in their compositions.
Does this lead to violation of copyright?

In Music, Sampling refers to the act of using one’s prior recordings and reusing it as an
instrument and beats which are then incorporated in a new song. This is a kind of musical
borrowing. Samples can also include quotes and phrases including those in movies, Tv shows,
and advertising. It is most common today in Hip-Hop and Electronic Music. This practice of
sampling a classic music into a brand new song has played a major role in shaping the hip-hop
genre of music. Sampling sometimes also involves creative manipulation such as changes in
speed and pitch of the original sample used. Few deny that taking a sample and then effectively
using it in the incorporation of a brand new song requires talent. Originally sampling was
mostly done with a Sampler - A specialized device for sampling purposes but today it is mostly
done with the help of a computer software.

To use a sample legally without violating copyrights one needs to obtain permission from the
copyright owner. The copyright is generally owned by the publishing company or the record
label. The fee to acquire legal permission for sampling can vary. The fee depends upon how
many samples you want to use and the intended use of the sample in the new song.

During times, when Hip-hop was just getting started, artists could get away with sampling
without facing any consequences. The artists generally didn’t seek permission. At that time
you could even buy CDs of the sample from the local music stores to make your own remixes.
But as the genre grew in terms of both money and popularity, copyright owners started to keep
an eye on artists who used sample heavily without seeking permission from the copyright
owners.

At first, the cost of seeking permission and purchase the rights to sample the song was minimal
but the rates started to grow as the music industry started making more and more money with
the use of samples.
Now a days there are well established businesses and firms committed solely for acquiring and
negotiating permissions and licenses for samples.

If an artist uses a sample without seeking permission from the copyright owner, the copyright
infringer is liable for “ statutory damages” that generally ranges from 500 US Dollar to 20,000
US Dollar for a single act of copyright infringement. Sometimes if the court feels that there has
been a willful infringement then the damages can go up as high as up to 100 thousand US
dollars. The court can also ask to recall all the albums that used sampling and destroy them.
Sampling without seeking permission can result in colosal consequences if the artist has a
record contract. Most of the record contracts signed by artists have provisions like Warranties,
Indemnification and Representations. These provisions in the contract comprises of a
promise that the artist itself created all the music used in the album and an agreement to
compensate if it is sued.
A lot of hip-hop artist are bothered by the fact that those suing for copyright infringement and
damages are not artists themselves but the corporation that owns the copyrights. One such
infamous case came to light in 2005 when Bridgeport Music, a one-man owned music
publishing company that had acquired many copyrights, filed a case against Jay-Z for using
sample without seeking permission. The sixth circuit court ruled in favor of Bridgeport and
simply stated “ Get a license or do not sample”. Bridgeport music filed lawsuits against
hundreds of defendants under the federal copyright statute, the title 17 of united states code
that outlines United States copyright law. Bridgeport got more than 4 million us dollar in
damages.

In 2004, Danger Mouse released plug copies of his work called "The Grey Album," which
happened to be a remix of the music from the Beatles "The White Album" and Jay-Z's raps
from "The Black Album." .EMI, the label that holds the Beatles' copyrights, quickly hitted
Danger Mouse with a cease and desist order, preventing commercial release of the full album

In 2007, Rihanna released her hit single “ please don’t stop that music” in which she included
a hook that goes like “Mama-se, mama-sa, mama-coo-sa”. It was taken from a hit song of
Michael Jackson Wanna Be Startin' Somethin and Jackson gave his permission to do so. But
later it turned out it wasn’t Jackson's permission to give. It was actually taken from
Cameroonian singer Manu Dibango's 1972 song Soul Makossa. Manu Dibango filed lawsuits
against both Rihanna and Michael Jackson seeking €500,000 in damages and asked French
courts to prevent Sony BMG, EMI and Warner from receiving any income from the songs for
the time being. Eventually, the matter got sorted out, out of court.

Despite the fact that artist who wants sample might have good intentions and will ultimately
create a derivative of the sampled music used, that is way more different that the original
sampled song, sampling still remains a complicated legal issue. On the other hand, it’s a fair
argument that original artist deserve recognition and compensation for their piece of work. But
this argument is harder to digest when it turns out that compensation from lawsuits mostly goes
to corporations that owns the copyright.

Sources :
https://www.musicradar.com/news/tech/michael-jackson-and-rihanna-hit-by-lawsuit-195025
https://www.techdirt.com/articles/20090204/1128463641.shtml
https://en.wikipedia.org/wiki/Sampling_(music)#Legal_issues
http://www.copynot.org/Pages/Music%20sampling.htm
http://www.wipo.int/wipo_magazine/en/2009/06/article_0007.html