Toronto Copyright Lawyer: The Legality of Music Sampling

Introduction

by Andrea R. Bergman

Most people who listen to urban styles of music, like rap, hip hop and dance, know that the beats they hear on a recording have been taken from somewhere else. The increasing affordability of recording technology in today’s commonplace home studio makes the use of other people’s music more and more widespread. Music sampling is roughly defined as lifting a piece of recorded music (a “sample”) from an existing recording and using it in a new recording. Often, a few bars containing a drum beat will be repeated in “looped” sequence to form the backbeat of the new recording. At other times, the sample may be of vocals, other instruments, or even a nanosecond of background noise. The sample may then be manipulated in different ways and combined with other sounds and sound effects to make a new creation. What is common to all of these incidents is the use of someone else’s recording to produce a new one.

There are legal ramifications of sampling music, as copyright owners successfully recover monies owing to them from the use of their music, or are at times able to obtain injunctions – orders from a court to stop the defendant’s infringing activities. A prospective user of music will therefore have to recognize and understand the rights associated with the music being sampled, and know how to navigate through the sample clearance process in order to gain lawful access to the desired material.

What is Copyright?

Copyright is a bundle of rights derived by statute, giving the copyright owner the exclusive right to do various things with a work. These rights are prescribed under section 3(1) of the Canadian Copyright Act (hereinafter “the Act”).  The most important right to music sampling is the mechanical right prescribed under S.3(1)(d):

In the case of a literary, dramatic or musical work, [the right] to make any sound recording, cinematograph film or other contrivance by means of which the work may be mechanically reproduced or performed.

This is the right to reproduce the work onto a mechanical contrivance, for example, a CD or a cassette. The mechanical right gives the owner the right to prevent other people from reproducing the work onto mechanical contrivance.

Who Owns Copyrights?

The Act recognizes two distinct sources of rights in music: the rights in the underlying musical work and the rights in the sound recording.  The underlying musical work is the music, lyrics, or both, written by the songwriter. Once the composition is fixed in some form, whether on paper or in a recording, the rights in the musical work arise. The © symbol on liner notes indicates the copyright in the musical work. The songwriter will usually enter into an agreement with a music publisher to “song plug,” or find exploitive uses for the music written, such as getting a song played on the radio or in a club, and having the song used in a music video or a movie soundtrack.  The songwriter and/or music publisher have rights in the musical work, jointly, as the author. Note that a recording artist might not be the songwriter, and in that case, the artist does not own copyright in the musical work.

When the music gets recorded, it is first set down in the form of a master recording. The maker of the recording owns the rights in the master recording, referred to in the Act as the sound recording:

“Sound recording” means any transmission of signs, signals, writing, images or sounds or intelligence of any nature by wire, radio, visual, optical or other electromagnetic system.

Rights in the sound recording arise when the music is recorded in the master form. The ℗ symbol on liner notes indicates the copyright in the sound recording.  The maker of the sound recording is usually, although not always, a record label, under a contractual arrangement with the author. This occurs when the label records the master in a studio.  At the time of the recording, the author and the maker, which might or might not be affiliated, each own copyright. The prospective music user will have to clear rights with both streams of ownership to fully be allowed to use the music.

As an example, Kanye West’s 2005 single “Gold Digger” contains a sample of Ray Charles’ song “I Got A Woman,” which was written by Ray Charles and published by Mijac Music and Unichappell Music Inc. “I Got A Woman” was released on the album “Ray Charles At Newport,” on the Atlantic record label. Atlantic is owned by Warner Music Group, whose affiliated publishing company, Warner Chappell Music, owns Unichappell Music. In this way, Kanye West was likely able to clear the rights to use the sample from “I Got A Woman” through Warner Music Group. However, sometimes the licensing process will involve a longer and more drawn out research and clearance process.

Copyright Infringement

If the rights to use the music sample have not been cleared, the music user runs the risk of liability for copyright infringement. How does one know when copyright is infringed?

The Copyright Act defines infringement as follows:

It is an infringement of copyright for any person to do, without the consent of the owner of the copyright, anything that by this Act only the owner of the copyright has the right to do.

The use of an un-cleared sample gives rise to possible infringement of the copyright in the musical work and the copyright in the sound recording.  However, not all uses of material will give rise to liability. There are limitations on what may be construed as copyright infringement, as may be gleaned from certain nuances in copyright law.

Substantial Part

To determine whether the use of the sample infringes the copyright in a work, the inquiry begins with the question of whether the sample constitutes asubstantial part of copyrightable material. This asks whether the material used was a substantial part of the plaintiff’s material, and whether the material is capable of copyright protection.

Canadian Performing Right Society Ltd. v. Canadian National Exhibition Association, [1934] O.R. 610, the Ontario High Court of Justice clarified what would be considered a substantial part of the plaintiff’s material. The Canadian Performing Right Society, an agency responsible for the administration of public performance rights and the collection of performance royalties, sued the Canadian National Exhibition Association after a vaudeville band played parts of a song written by a songwriter affiliated with the agency at the CNE public fair. The defendant argued that there was no infringement because the part of the song played was insubstantial.

The Court said that, because the piece of music played was recognizable to the average lay observer, it was a substantial part, and therefore there was infringement.

In determining whether a substantial part of a musical work has been played, a decision should not be reached merely by comparing the respective lengths of the whole work and of the part played. The fact that a person who heard the part played and who was familiar with the work could identify the work is very important, if not conclusive.

Other courts have explained what will constitute a substantial part of the plaintiff’s work a little differently:  The Federal Court of Canada, Trial Division, held that, where the defendant has “taken the distinct traits of the original work,” a substantial part of the plaintiff’s work will have been used. See Cie Generale des Etablissements Michelin-Michelin & Cie v. C.A.W.-Canada.  The British Columbia Court of Appeal looked at the qualitative importance of the piece of work used, in relation to the plaintiff’s work as a whole. See British Columbia Jockey Club v. Standen (Winbar Publications) (1985), 8 C.P.R. (3d) 283. Therefore, if the piece of music sampled is recognizable to the average listener, or if it is distinctive or qualitatively important to the plaintiff’s work, it will likely form a substantial part of the plaintiff’s material. However, the inquiry does not end here.

Originality

In order for a work to be capable of copyright protection, it must be original. In Delrina Corp. v. Triolet Systems Inc., the Ontario Court of Appeal highlighted that “the reproduction of a part which by itself has no originality will not normally be a substantial part of the copyright and therefore will not be protected.” Therefore, if the piece of music being sampled is not in itself original, there will be no copyright infringement.

The Supreme Court of Canada discussed the standard for originality in a copyrighted work in CCH Canadian Ltd. v. Law Society of Upper Canada. A group of editorial publishers sued the Law Society of Upper Canada for unauthorized reproductions of their works, editorial components in reported judicial decisions. The Law Society had self-serve photocopiers in its Great Library, and also regularly sent to its members requested decisions, including the editorial components, by facsimile and mail. At issue was whether the editorial components of the decisions, such as headnotes, case summaries and topical indices, were original for the purposes of copyright protection.

The Court held that the components were original, because they were the result of an independent exercise of skill, judgment and knowledge:

For a work to be “original” within the meaning of the Copyright Act, it must be more than a mere copy of another work. At the same time, it need not be creative, in the sense of being novel or unique. What is required to attract copyright protection in the expression of an idea is an exercise of skill and judgment. By skill, I mean the use of one’s knowledge, developed aptitude or practiced ability in producing the work. By judgment, I mean the use of one’s capacity for discernment or ability to form an opinion or evaluation by comparing different possible options in producing the work. This exercise of skill and judgment will necessarily involve intellectual effort. The exercise of skill and judgment required to produce the work must not be so trivial that it could be characterized as a purely mechanical exercise.

It may be arguable whether a particular piece of music is copyrightable, such as a drum sequence that has been looped. The argument that one snare drum note in itself is not original may make more sense than an argument dealing with a 4-bar sample involving distinctive vocals. Therefore, sampling arguably affects the ratio of originality, which will inform whether the sampled piece is protectable by copyright.

Gaining Legal Access to Music Samples

The easiest way to deal with the possibility of infringement is to avoid the risk of litigation and “clear” the rights with both streams of copyright ownership to use the desired sample legally. This is done by researching who owns the copyright in the musical work and who owns the copyright in the sound recording, and then obtaining a license to use the work from both streams of ownership.

The Canadian Musical Rights Reproduction Agency (CMRRA) administers the mechanical rights of its affiliated songwriters and music publishers, and collects mechanical royalties on their behalf, for mechanical music reproduction in Canada. The CMRRA has a searchable database of registered songs by song title or songwriter. The prospective music user can find out who owns the copyrights associated with the desired piece of music and obtain the rights to use the sample. Mechanical royalties, or fees for the mechanical reproduction of music, are set according to the mechanical rate, which is typically negotiated between the CMRRA and the Canadian Recording Industry Association (CRIA). The current Canadian industry standard rate is somewhere around 8.5 ¢ for a piece of music up to 5 minutes and 1.7¢ per minute or partial minute over 5 minutes. This figure gets multiplied for every unit pressed (every CD burned, for example), and varying arrangements may be negotiated between the copyright holders and the prospective music user. Importantly, the CMRRA does not have each and every single song recorded in its catalogue, so there is the possibility that the prospective music user will have to look elsewhere to find out who owns the copyrights in the desired music.

Aside from mechanical rights, some other rights guaranteed by copyright law might be implicated upon the sampling of music.  If the new recording gets played on the radio, in a club, or on television, the copyright holder’s public performance rights in the original musical work will be implicated. The administration of public performance rights in Canada, together with the collection of public performance royalties, is run by the Society of Composers, Authors and Music Publishers of Canada (SOCAN).  If the new recording is included on a motion picture, video or television soundtrack, the copyright holder’s synchronization rights in the original music composition will be implicated. The CMRRA handles the administration of synchronization rights in addition to mechanical rights. The rates for usage of a song in a movie or on television are typically negotiated between the parties.

The other thing to remember is that, by creating a new derivative work using the music sample, the music user will now be the author of the new work, and will want to protect its own rights associated with the new work, which are the same rights discussed throughout this article.

A Word About Moral Rights

Moral rights belong to the author of a copyrighted work, and include the right to the integrity of the work, and the right of association (to be or not to be associated with the work). These rights are prescribed under S.14.1 of the Act, and are read subject to S.28.2 of the Act. While there are no Canadian cases dealing with the infringement of moral rights with respect to music, a few points still bear relevance to this article.

The right of integrity allows the author to prevent the modification, distortion, and/or mutilation of his or her work. This right also allows the author to prevent the use of the work in association with a product, service, cause or institution the author does not agree with. These uses of the work will only amount to moral rights infringement where they have been done to the prejudice of the honour or reputation of the author.

Even with the use of a small sample of the author’s work, some integrity issues could arise. Perhaps the argument could be made that, with any sampling, the original work will inevitably be modified, distorted, and even mutilated, given the almost total re-arrangement of the original work in the new recording.  However, if this has been done to the prejudice of the author’s honour or reputation, an argument for infringement may be made. In the same vein, there is ample room for argument with respect to unauthorized uses of the sample in association with a product, service, cause or institution that the author does not agree with. The hypothetical example of a reggae sample used in a war campaign comes to mind.

With respect to the right of association, the prospective music user will likely have to credit the source of the sample, and all publishers, in liner notes and other promotional material associated with the new work.

Note that a moral rights issue will only arise with respect to the rights in the musical work, and not those in the sound recording, as moral rights only belong to the author of a work. In the case of music, moral rights would exclusively belong to the songwriter. It is not uncommon for moral rights provisions to be built into agreements for the usage of music sample, whereby the author of the musical work might waive his or her moral rights. While there is no way for moral rights to be assigned to anyone besides the author of the work, the author may choose to waive these rights. However, this is not a given, and absent a written waiver, the prospective music user will have to watch out for potential moral rights infringement.

Conclusion

Sampling has become a very popular art form in today’s increasingly digital music production world. Other people’s music is used more and more in new creations, and the prospective music user will benefit from the knowledge of copyright law and from a framework within which to legally obtain the rights to use the desired music.

When navigating the world of music sampling, it is always important to keep track of who owns which rights in a work, and from whom to obtain a license to use the music. The songwriter is the first author of the work, and may license a publisher to find uses for the work. Together, they will own the copyright in the musical work. The maker of the sound recording, usually the record label, will own the copyright in the sound recording. The prospective music user will have to clear the rights to use the sample from both streams of ownership to most safely avoid the prospect of liability for copyright infringement, and will have to keep an open eye for potential moral rights infringements. As stated above, not every use of a sample will give rise to liability; however, the safest method of conduct is to obtain a license to use the music.