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Music has always been a hard area to deal with for lawyers. What is music? What characterizes it? Is there such a thing as a unique author? Does he or she need to be protected? If so, how? And the particular topic of appreciating the counterfeiting of music is probably the most difficult and uncertain area of intellectual property law.
The problem has expanded lately, firstly because of the use of new technology to create, share and enjoy music; for instance, the disappearance of physical copies destroys one of the most important basis of copyright law in this regard, counterfeiting generally starting when one makes copies of a work illegally using samples of another work. Secondly, the growing popularity of music made using electronic devices have made sampling and remixing proper ways to create music, which is problematic, the very principle of sampling being against the copyright logic. There have been many examples of the heavy consequences that can follow the use of samples without any clearance. Among them, The Verve, who have been compelled to give all of their royalties from “Bitter Sweet Symphony” to the Rolling Stones, even though they used a sample that was not part of the original composition “The Last Time”; the Biz Markie’s album “I Need a Haircut” was purely and simply taken off the market because of the unauthorized use of a sample from Alone Again (Naturally) by Gilbert O’Sullivan. Two interests have somehow to be balanced by the judges here: the recognition of the artist (it is pretty normal for the original creator to be credited) and a range of economic mechanisms that can actually constitute a real limitation to creation itself (i.e. Public Enemy being compelled to pull the song “Psycho of Greed” down because of too high a clearance fee demanded by The Beatles for the use of a sample of “Tomorrow Never Knows”).
- The legal state on sampling:
The law in this regard is not very developed. There was no clear legal basis to support it, it has therefore been shaped by the many cases arising in this regard. It is noticeable that a considerable part in this field is still left to the judges’ discretion, under a case-to-case approach, the inner logic in sampling being in itself already problematic for copyright. Over the time, a general approach appeared, independently of the different legal traditions (German, Roman or Common Law). Firstly, and against the general understanding “less than 2 seconds is fair use”, the characterization of counterfeiting could not depend on the amount of music used. The criteria of “recognizable” logically started to become the one widely used by judges. The third step was, also logically, the creation of the “common listener” to answer the question “recognizable by who?”. The notion is very interesting because referring to a qualitative approach rather than to a quantitative one, and preferring the idea of a “general feeling” created by the song than a purely technical approach – forcing everyone using even a completely unrecognisable sample to pay clearance fees. The “common listener” doctrine, widely used, has been nevertheless criticised for being fuzzy and unclear, especially on the other side of the Atlantic; unsurprisingly, the USA chose therefore the path of punishing every use of any work without having previously acquired the – often very expensive – clearance rights.
- How do you protect your work:
What do you face if you do not clear: operating without clearance can have for consequences to force you to pay a large amount of money to the plaintiff, and to see your work banned from regular distribution circuits.
In which cases is it not a necessity to clear: firstly, be aware that the “no commercial purposes” test, which generally prevents from any lawsuit in intellectual property law, is not fully operative in the case of sampling. According to the jurisprudence, you might actually be liable as soon as you distribute a “copy” of your music, money involved or not (at this point is asked the question of sharing on the internet, which does not require any copy). Basically, you do not need any clearance:
1) if you are using the sampled music at home or in front of a limited audience in a private location
2) if you use it in live performance, because the organiser has already paid a fee for the entire manifestation to the concerned institutions
3) if you give copies but respect the criteria of “fair use”.
How do you seek clearance: you have to comply with three elements: Master Use Rights from the label company, permission from the publisher (author) and a mechanical licence to use the sample in the record you will produce. Clearance can therefore be relatively tedious, very expensive, and sometimes unreachable (if for instance the rights owner refuses to return your messages). As previously stated, try to use content protected under Creative Common licences.
Mélodie Bourelier’s mémoire: L’appréciation de la contrefaçon des oeuvres musicales.