Blurred lines: sampling, inspiration, pilferage and plagiarism

We reported late last year on a dispute between rapper Rick Ross and dance-pop duo LMFAO over the use of a hook “everyday I’m hustlin’” / “everyday I’m shufflin’” (see here). Well, the arguments over what constitutes legitimate ‘borrowing’ from musical works continue.

The music industry has always been a tinder-box of uncertainty about the reach of copyright; widespread borrowing, sampling and outright copying of other people’s tunes; and big egos. The 2015 multi-million dollar Blurred Lines damages award to the estate of Marvin Gaye made it plain that plagiarism can be an expensive business. Since then, pop music copyright claims have continued to hit the press.

This June, a jury in the US will decide whether Led Zeppelin’s legendary Stairway to Heaven infringed the copyright in a track called Taurus by a band called Spirit. Recently, megastar Justin Bieber and electronic music producer / DJ Skrillex have found themselves accused of stealing from a song called Ring the Bell by Casey Dienel to form the hook of their track Sorry. Skrillex, Bieber and the Zepp all deny copying the earlier works.

UK law requires that to benefit from copyright protection, a musical work must be original; pending Brexit, that threshold is subject to a clarification by the Court of Justice of the European Union (CJEU) that the work must constitute the expression of “the author’s own intellectual creation”. In the US, the test is a threshold amount of creativity. Many consider there to be no significant difference between the three tests, which set a low qualitative threshold for protection to arise.

If copyright subsists in a musical work, it can be infringed only where it is copied and the copyist takes an amount considered by the court (or jury in the US) to be significant. This subjective threshold has been hard to ascertain in instances where an artist has sampled a quantitatively small amount an original work to create a new work – as often done in hip hop and dance music.

In 2004, Kraftwerk sued German music producer Moses Pelham for using a two second sample from one of their songs. In 2008, the German Federal Court of Justice ruled in Kraftwerk’s favour, holding that the taking of even a “tiniest sliver” of a recording would infringe copyright. However, in a recent appeal decision the German Federal Constitutional Court overturned that decision in Mr Pelham’s favour, holding that the imposition of a requirement to obtain a licence for every sample would be too onerous for small artists and would violate the principle of freedom of expression. In reaching that decision, the Federal Constitutional Court weighed up the competing rights of the copyright owner to exploit his work and the sampler’s freedom of expression and found that where the sampling only slightly affects the copyright owner’s right to exploit his work (i.e. by selling records of the original), the balance should tip in the favour of freedom of expression. Hot on the heels of that German decision, a US Court of Appeals has just ruled in VMG Salsoul v Madonna Ciccone that sampling of very small parts of musical works (in this case 0.23 seconds) would not constitute copyright infringement.

These recent decisions support an argument that where the use of the sample does not limit the copyright holder’s ability to exploit his copyright, the copyist’s right to express himself should take precedence. They may give hope to artists that do not have the knowledge, contacts or money to obtain numerous licences, and to lawyers who might seek to defend them when artists signed to major labels seek to control use of samples by way of copyright infringement claims. Those artists and lawyers should still be cautious: these decisions do not establish a clear dividing line between use of a sample which would infringe without permission (and payment) and use which would not (requiring no licence); they are jurisdiction specific; and they also do not address the issue of moral rights – sister rights to copyright, which in Europe can provide the creators of musical works with a powerful weapon to challenge the creative context in which a third party uses a copyright protected work.