Recently, the issue of copyright has been brought to my attention. There are so many complicated ins and outs of copyright and it's hard to really understand what affects me and what doesn't. The standard concern for a lot of electronic musicians these days I would imagine is the copyright laws surrounding the use of samples from other peoples existing work. It seems like almost every popular genre of electronic music uses sampling in one way or another, hip-hop uses it almost exclusively as a production method, house music was literally created from samples disco records and the list goes on! But how are they able to get away with using so many samples? In this blog I'm going to discuss what parts of copyright might affect me and how I can handle any issues with copyright accordingly.
I recently reached out to one of my favourite duos Sweet Valley on Twitter, asking them how exactly they get away with using so so sooo many samples from popular music. Unfortunately I wasn't able to get a response, so I'm still curious as to how they can just use a huge chunk of So What by Miles Davis in their song Champagne, or how they can use the entire chorus line from Thank You For Being a Friend by Cynthia Fee in their track Rip Corp. Music Rights Australia states in a fact sheet on their website that;
"You will need permission to use someone else’s music if it is a “substantial” part of their work. This does not necessarily mean that you only need permission if you are using a large part of their music – a “substantial” part refers to anything that is distinctive or essential to the work. So if the section of the work you want to use is recognisable you will require permission to sample it, irrespective of how small or large it is. You should keep in mind that the section of the work you want to use may only be recognisable by the artist who originally recorded it, and this is enough to satisfy what is considered “substantial."
So basically if you're looking to sample someone's music you need direct permission from them or someone that can speak on their behalf. Honestly, have a listen to any of Sweet Valley's music and you'll notice immediately that it's built entirely off the use of samples. So have they contacted everyone about using their music before writing every single one of their songs? How does one even find somebody to contact about these things and would they even bother to give you the time of day? Legal Vision suggests on their website that;
"Sometimes, Australian Performing Rights Association and Australasian Mechanical Copyright Owners Society (APRA-AMCOS) or Australian Record Industry Association (ARIA) may be able to supply a licence, or they can point you in the right direction to obtain it directly from the relevant rights holders. These organisations have been set up to administer some blanket licences on behalf of their members. Licences negotiated directly with the rights holders will be on the terms negotiated at the time."
They also make mention of something called a Creative Commons Licence, which is essentially a licence that artists can attach to their work, stating that anyone can sample it and use it in their own work as they please. I would expect this is mostly the case when it comes to loyalty free music, which is not usually of the kind of quality artists are looking to sample.
It seems like the best way to handle something like this is to try and get in contact with record labels and APRA-AMCOS about getting a licence to use someone else's music. But again this feels like it would take a lot of time. Maybe there is a way around having to get all this authorisation without breaching any kind of copyright laws. This question lead me to the discover of something called "di minimis use" which means that a copying has occurred to such a trivial extent as to fall below the quantitative threshold
of substantial similarity, which is always a required element of
actionable copying (Blessing. D. S, 2004). Plainly put, if you can't recognise the sample then it doesn't counts as di minimis use. In his article Who Speaks Latin Anymore? Translating De Minimis Use for Application To Music Copyright Infringement and Sampling David S. Blessing uses a case between James Newton and The Beastie Boys as an example of this. James Newton was not aware that The Beastie Boys had used a six second sample loop of his song Choir in their song Pass the Mic until some 8 years later. The Beastie Boys had obtained a licence from the recording company that possessed the rights to Newton's song and so the court instead assessed whether or not the actual musical quality of Pass the Mic was copied from Choir. They found that the sample used did not note anything that made the original recording distinct so they deemed it di minimis use.
To me it sounds like there are two paths to take with sample copyright, one being the procurement of an actual licence from the appropriate parties, and the other is to make sure that the sample you're using isn't using any integral parts of the original track. Sweet Valley must have either paid a hell of a licencing fee to use the entire chorus of a very popular song from the 80s, or just simply slipped under the radar. Either way I know now that I need to be careful if I'm releasing any music with samples from other songs in it, I think the most challenging part of this for me will be making sure I can find the right people to get licences from, but making a sample obscure is exactly what I'm good at so I think I have that part covered.
Music Rights Australia - Fact Sheets. (2018). Retrieved from http://www.musicrights.com.au/fact-sheets/samplingmusic/
I Want to Sample Another Artist's Song. Do I Need a Licence?. (2018). Retrieved from https://legalvision.com.au/i-want-to-sample-another-artists-song-do-i-need-a-licence/
David S. Blessing, Who Speaks Latin Anymore? Translating De Minimis Use for Application To Music Copyright Infringement and Sampling, 45 Wm. & Mary L. Rev. 2399 (2004), https://scholarship.law.wm.edu/wmlr/vol45/iss5/8