November 2004
The US courts attempt to clarify the law on music sampling
Two Court of Appeal cases in the US, (Newton v Diamond & Bridgeport Music v Dimension Films), have confirmed two rules or guidelines for music sampling, albeit not a significant deviation from what has always been advised in like cases. Firstly, for musical compositions, the sample must be so short or insignificant that the average listener would not recognise the original composition from the part sampled, and, for sound recordings, the advice is simply to get a licence regardless. What does reveal a real departure however from established principle is that the court in relation to sound recordings has more or less ejected the time-honoured, yet vague principle of substantiality from consideration in such cases. Instead, it appears to have reverted back to the stricter approach, which rejects any acceptance of fragmentary borrowings and supports fully a commercial licensing position.
BRIFFA Comment:
The single most common complaint with regards to music sampling has always been the lack of clear guidelines on infringement. Copyright gives authors of certain types of works exclusive rights, which relate to the restricted acts that only the owner of the copyright can perform or authorise. With regards to music sampling, the most significant of these exclusive rights are the prevention of unauthorised persons from copying, making adaptations of and performing the work in public. An act restricted by copyright can be done in relation to the whole work or any substantial part of it. What exactly constitutes a substantial part has always proven problematic.
The US have always dealt with music sampling cases rather rigidly. In fact, any taking, however insubstantial, was seen as theft and thus a breach of the Eighth Commandment, 'thou shalt not steal'. Through a series of cases however, the US courts eventually admitted, albeit indirectly, that sampling was not always theft, in allowing parody to fall within the ambit of the 'fair use' defence. Substantiality, in relation to copyright infringement, infiltrated through to the US, giving the concept a global status and bringing things more in line with the decisions in the UK courts, which have tended to take the test of substantiality further. However, overall the test has remained vague, perhaps inevitably, when it became widely agreed to be one of quantity and/ or quality, fact and/ or degree. The message has always been that the less one takes the better, but sampling the 'heart' or the 'essence' of a creation, no matter how short, is more likely to suggest infringement. This problem combined with the lack of legal precedent, has lead to a situation where neither the courts nor those to whom the law applies are sufficiently sure of their positions. Although US judgements are not directly applicable in the UK, it may be the case that the more rigid approach recently adopted by the US could be followed in the UK, thereby laying the concept of substantiality in relation to sound recordings firmly to rest. Alternatively, the impulse may be to favour a degree of appropriation. What is certain, is that unauthorised music sampling does happen and is extremely popular. Technology has precipitated the crisis; law cannot ignore it.