Music Sampling, A Euphemism
The use or abrogation of another person’s music in the music industry is, unfortunately, rather prevalent. There are many ways in which a person’s creativity in a song can be used by another person and many terms have been created in the industry for such usage. One of the more recent euphemistic terms for using another person’s music is “music sampling”. The jargon used in the musical industry tends, on occasions, to minimise the pernicious activities.
Music sampling occurs when one person (often a disc jockey (“DJ”)) uses a portion of another musician’s song creating a “new” song. The usage can be of a certain line of music or the words of a song or, alternatively, the use of part of or the whole of a record.
On an extremely basic level and without in any way having regard to the emotive reaction to the exploitation of music, one has to have regard to the provisions of the Copyright Act No. 98 of 1978 and the Regulations promulgated thereunder (“the Copyright Act” and “the Regulations” respectively) in order to establish the lawfulness of music sampling.
The manner in which the Copyright Act has been drafted is such that it is not necessarily the author of the work who is entitled to commercially exploit the work but, rather, the owner of the copyright that subsists in a particular work. There may, in respect of any particular work, be a number of copyright owners. This is particularly so when dealing with music. We may have the owner of copyright in the words of the song (a literary work); a separate owner of copyright in the lyrics of the song (a musical work); and further a separate owner of the record of the song (a sound recording).
The Copyright Act determines that only works that are specifically identified in the Copyright Act are capable of copyright protection. The originator of an idea cannot claim any right to his idea, as a general rule. It is not the idea that is protected but, rather, the idea as expressed in the material form (in other words, the idea as specifically set out in a written visible format).
When dealing with music, one has to have regard to the three works identified in the Copyright Act being:
- the literary work: the words of a song;
- the musical work: the musical annotation of the song; and
- the record or “sound recording” as it is known in the Copyright Act on which the words and music are recorded.
I point out that, when dealing with music videos, there is a fourth work, being a cinematograph film, the video performance of the song.
The manner in which the Copyright Act is drafted is that it determines certain acts that only the copyright owner, or a person duly authorised by the copyright owner may do. Insofar as literary or musical works are concerned, the following are the restricted acts:
- reproducing the work in any manner or form;
- publishing the work if it was unpublished;
- performing the work in public;
- broadcasting the work;
- making and adaption of the work.
Insofar as sound recordings are concerned, the following are the restricted acts:
- making, directly or indirectly a record embodying the sound recording;
- letting or offering or exposing for hire by way of trade, directly or indirectly, a reproduction of the sound recording;
- broadcasting the subject matter embodied in the sound recording by means of the use of the sound recording;
- communicating the subject matter embodied in the sound recording to the public.
The common theme pertaining to the aforegoing is that one may not copy the work nor may one commercially exploit the work without the authority (license) of the owner of copyright in the work.
As always, however, in the law there are exceptions to the general rule.
In terms of Section 14 of the Copyright Act, a special exception has been created with regard to records of musical works in that any person may make a record of a musical work (and the associated lyrics of a song) or an adaption thereof where:
- records embodying the work or a similar adaption of the work were previously made in or imported into the Republic of South Africa for the purposes of resale and were made with the authority of the copyright owner.
- before making the recording the prescribed notice is given to the owner of the copyright of the intention to make the recording (the statutory notice);
- the manufacturer intends to sell the record by retail; and
- the prescribed royalties are paid to the copyright owner in the prescribed manner and in the prescribed time.
Accordingly, the Copyright Act creates a statutory license (“stat license” in the industry jargon) that authorises the making of cover versions of songs that have been released in the Republic of South Africa.
However, the rights granted in terms of Section 14 of the Copyright Act make major inroads into the rights of the copyright owner and, accordingly, must it is submitted be interpreted restrictively. One must have regard to the Regulations in order to ascertain the procedures one must follow in order to make a cover version. Failure to comply with the regulations will result in the “cover version” being an infringement of copyright and thus unlawful.
Regulation 10 sets out the manner in which the statutory notice must be given and what must be contained in the statutory notice. It is submitted that failure to strictly comply with these Regulations will result in the recording being unlawful.
The royalty payable, as I am led to believe in the industry is 6.76% of the retail selling price. The Regulations, however, make provision for a royalty payable of 5% of the retail selling price. The Regulation specifically states, however, that this statutory royalty may be amended by way of agreement.
It is generally assumed that an infringement of copyright in either a song or record will only occur when the entire song or entire record, as the case may be, is copied. This, however, is not the case. The Copyright Act makes it clear that it is not necessary for the entire work to be copied. It would be sufficient, for copyright infringement, should a “substantial part” of the work to be copied. What constitutes a “substantial part” is not determined by way of quantity but, rather, quality. There are no specific rules and each situation will have to be considered on its own facts.
In order to determine whether or not there has been any copying, a 2-stage process is involved being:
- an assessment as to whether the works or a substantial part of the works are substantially similar;
- an investigation into whether the person who made the copy had access to the work allegedly copied.
Therefore, it is possible that sampling of music could indeed constitute an infringement of copyright. One would, however, have to firstly ascertain whether or not part of the song has been copied and, thereafter, ascertain whether or not any of the exceptions set out in the Copyright Act apply. The Copyright Act sets out various exceptions (other than the Section 14 – Statutory Notice – exception set out above) which exceptions can, perhaps, best be lumped under the heading of “fair use”. The concept of “fair use”, however, it is submitted, will not apply in the situation of sampling music where the final product is used for commercial purposes. In other words, should the “remixed” song be, in any way, broadcast to the public in accordance with normal commercial terms, one would not be able to rely on the “fair use” provisions of the Copyright Act.
The fact that the work is used, essentially, to generate an income would, in my view, result in the work not falling within the “fair use” exception.
Finally, the aspect pertaining to “moral rights” would have to be considered. The moral right of an author is dealt with in Section 20 of the Copyright Act. This is a right that pertains to the author alone and, therefore, not necessarily the owner of copyright in the work. The moral right entitles the author to object to any distortion, mutilation or other modification of the work where such action is or would be prejudicial to the author’s honour or reputation. An infringement of the moral right is, in terms of Section 20(2) of the Copyright Act treated as an infringement of copyright. The author’s moral right would be relevant to distortions of the song in terms of both a stat license and where sampling occurs.
In short, the author may be entitled to object to any modifications of the work save for those which are absolutely necessary on technical grounds or for the purposes of commercial exploitation of the work.
In conclusion, therefore, any individual who wishes to use the song of another person, must obtain authorisation to use the song. This would apply, as set out above, even should a very small portion of the song be used. The authorisation obtained could be either a license negotiated with the copyright owner or, alternatively, a statutory (“stat”) license obtained subject to compliance with the provisions of Section 14 of the Copyright Act and the Regulations. However, I do not believe that a statutory license would be appropriate where a small portion of a song is used. It is submitted that the statutory license will only apply where the entire song is reproduced in the form of a cover version of the song (without distortions or modifications).
There can, in my view, be little justification for someone else deriving benefit from the fruits of another artist’s labour without authority from that other artist. In simple terms, the use of another person’s song, without the authority of that person, is a form of theft.
SPOOR & FISHER