We have all listened to a song and thought: “that beat sounds familiar” or you playing your favourite The Fugees song “Ready or Not” then your father tells you that’s a song by The Delfonics “Ready or not Here I come”. To your horror, your favourite isn’t an “original” and that was my first encounter with Sampling.
Sampling is the use of a portion of a prior recording and incorporating it into, and creating a new composition. Sampling has featured prominently in most, if not all, recent hit songs with the Robin Thicke’s “Blurred Lines” being one of the most popular, for good and bad reasons. What happened in this case of the Estate of Marvin Gaye v Thicke and Williams, the Gaye family alleged that Robin Thicke and Pharrell Williams sampled “Got to Give it Up”, Marvin Gaye’s 1977 hit, without obtaining permission and therefore paying royalties to the Gaye family. The court found that Thicke and William’s did indeed “noticeably rip off Gaye” and therefore awarded the found in favour of the Estate of Marvin Gaye. The award for damages were in excess of $3 million.
In the recent and noticeable case of Tracy Chapman v Nicki Minaj, Chapman succeeded with a copyright infringement case against Minaj for use of Chapman’s acclaimed “Baby can I hold you” where Chapman alleged that Minaj did not have consent to sample the song. The parties in this matter agreed to a judgment of copyright infringement which resulted in Minaj being ordered to to pay Chapman $450 000.
Another dispute worth mentioning is the one involving DJ Megan Ryte, Will.i.am and DJ Lag. DJ Megan Ryte and Will.i.am were found on the wrong side of social media when it was discovered that their song “Culture” was in fact a complete rip off of DJ Lag’s “Ice Drop”. Though this matter did not ultimately end up before a court, the failure to obtain consent for the usage of the song resulted in “Culture”, including the music video being removed from various streaming platforms and social media platforms
The above disputes and all other legal disputes dealing with sampling do not mean sampling is not acceptable. They only illustrate that the correct procedures and channels need to be followed, i.e. clearing the sample, before one uses the copyright of another. But before we get into the nitty gritty of sampling and how to go about it, a brief background on copyright law is required.
The Copyright Act 98 of 1978 protects the rights of the creator of the original work and states that works which are eligible for copyright are musical works, literary works, artistic works, sound recordings, cinematograph films, broadcasts, computer programmes, published editions and programme-carrying signals. For our purposes, musical works which is the work consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music ; literary works which are the words or actions sung, spoken or performed and; sound recordings which are fixations or storage of sounds or data r signals representing sounds which includes Compact Discs (CD’s), Digital Video/Versatile Disc (DVD’s), MP3’s, Flash-disks and hard drives as well as recordings on all other storage media.
The protection of the works above means that the author of the works is, normally, the owner of the works (or a rights holder) and therefore has the right to exploit and use the works in any manner he/she pleases. This means that, where any other person, who is not the owner, wants to use the works, that person is required to get written permission of the author/owner of the works by way of a licence or transfer of ownership. The licensing of the works or a portion thereof (sample) is the clearance of the sample.
There are two common forms of sampling i.e. use of a portion of a master recording or re-recording a portion of a musical composition. In terms of a master recording, you will require permission from the record label and the publisher/owner. However, where you are sampling a musical composition, you only require the permission of the publisher/owner of the song (rights holder). The process of clearing a sample is as follows:
- Collate the information about the song, i.e. the name of the composition, the record label and publisher, the artist performing the song and the composer of the original composition;
- Record the new composition created by you using the sample which you will send to the copyright holder. It has been advised to also send the copyright holder a copy of the original composition;
- Address correspondence to the copyright holder requesting permission to use the composition and include a copy therein;
- Hopefully, following the initial correspondence, the copyright holder will be amenable to you sampling their composition. If they grant you permission, you then begin the fee negotiation stage which may take different forms; and
- Once you have negotiated the fee and recorded the new composition, you then credit the original author and/or copyright holder as agreed upon in the form of a licence agreement.
Should you follow these steps, you will not find yourself in a Robin Thicke; Nicki Minaj or DJ Megan Ryte situation or the other endless list of sample disputes such as Vusi Ximba v Jozi; and Osman Mkhondo v DJ Sbu and TS Records which all provide an invaluable lesson: do not sample the works of another without the requisite permission and clearance.
