Sampling music is widespread in the music industry, particularly in the RnB and Hip Hop genres. Newer artists/producers frequently sample sound recording and/or the composition. Sampling music, when done correctly, can be beneficial to both parties (i.e., the person sampling the music and the music owner). For example, the party sampling the “old music” can benefit from the nostalgia created by old music. Similarly, the copyright owner benefits from greater exposure as its music is introduced to a newer, usually younger audience.
Despite the apparent benefits, copyright in music can seem daunting and complex, and, unsurprisingly, we frequently see headlines regarding copyright infringement relating to sampled music. Chris Brown is the latest musician to be slapped with a million-dollar copyright infringement claim.
Greensleeves Publishing Ltd has alleged that Chris Brown’s 2017 chart-topping track ‘Privacy’ has infringed a dancehall reggae track titled “Tight Up Skirt”, which was performed by Jamaican Dancehall artist Red Rat in 1997.
What is sampling?
According to Oxford Dictionary, sampling in the music sense is “the process of copying and recording parts of a piece of music in an electronic form so that they can be used in a different piece of music”. Simply, sampling is the copying of fragments/sections from existing musical works, which are used in the composition of a new piece of music. Under copyright law, copyright in music will protect the musical composition and its lyrics (underlying musical composition) and the sound recording (masters). Therefore, when an artist/producer “samples” another artist’s or producer’s music, they must first obtain permission from the copyright owner of the sampled music.
Consequences of Copyright Infringement
As indicated above, sampling by its very nature is prohibited under copyright law and is only permissible with the copyright owner’s consent. The risk of infringement by sampling is high as sampling/electronic alteration could constitute an infringement of the original sound recording in the underlying music and lyrics.
However, whether there is an actionable case of copyright infringement is dependent on whether the part copied/sampled constitutes a substantial part of the original music. It is a well-established principle that the test is a qualitative and not quantitative one. As such, failure to obtain consent could result in a copyright infringement claim irrespective of how big or small of a portion of music you actually use.
Tigh Up Skirt v Privacy
For those that are unfamiliar with both Privacy and Tigh Up Skirt, both share the phrase “Hey you girl inna di tight upskirt” (Tight Up Skirt) and “Hey you girl without a tight up skirt'” (Privacy). Greensleeves alleges that both songs “share a similar primary identifying feature” as both songs contain the same lyrics which begins each chorus section, and it is this “shared structural placement is significant and adds to the prominence of the similar melody.”
Greensleeves is seeking a “permanent injunction enjoining defendants and all persons acting in concert with defendants from manufacturing, reproducing, distributing, adapting, displaying, advertising, promoting offering for sale and selling or performing any materials that are substantially similar to the copyrighted work”. In addition, Greensleeves is requesting actual damages and profits “in an amount in excess of $1.5m to be determined at trial, plus interest”.
It remains to be seen what the outcome of this case will be, but as you can see, a claim for copyright infringement can be detrimental.
If you have any queries regarding copyright infringement or copyright generally, please do not hesitate to get in touch with Briffa.
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