The digital age, where everything is just a click away, has heralded new challenges for artists to protect their work. Just because you can find a song on the internet, does not mean it is ‘free for the taking’. If you want to sample another artist’s songs, there are certain rules and licenses, which this article will explore.

What is Music Sampling?

Music sampling involves using a portion or element of another artist’s musical works. This could be part of the lyrics, the music, the rhythm, or even just a recognisable riff or beat. If you want to sample another artist’s song, you typically need to request a license by contacting the relevant copyright owner.

The Copyright Owner

Whoever you think the artist is may not be the relevant copyright owner. A music recording usually contains three copyrights:

  1. The composer or the music publisher usually owns the copyright in the musical work;
  2. The lyricist or composer owns the copyright in the lyrics (if any); and
  3. The record company, or whoever paid for the song to be recorded and released, owns the copyright in the sound recording.

Distinguishing between the copyright in the musical work, lyrics and various recordings of the song is important. For example, there is only one owner of the copyrights in the music and lyrics of  ‘Hallelujah’. But so many covers have been since recorded that many people won’t even know that the original copyright owner of the lyrics and music is Leonard Cohen. Each recording will have a different copyright owner so it is important to identify the true copyright owner of the relevant version before obtaining permission.

Copyright involves a bundle of rights, exclusive to the copyright owner, including the right to make reproductions of, perform and adapt all, or a substantial part, of the musical work. This means that if you sample a recording without permission, you will have infringed the owner’s copyright in the three types of copyright referred to above.

How exposed you are if you ignore this will depend to some extent on how successful your work becomes. There is an old music industry saying “first the hit, then the writ”.

Securing a Licence

Sometimes, Australian Performing Rights Association and Australasian Mechanical Copyright Owners Society (APRA-AMCOS) or Australian Record Industry Association (ARIA) may be able to supply a licence, or they can point you in the right direction to obtain it directly from the relevant rights holders. These organisations have been set up to administer some blanket licences on behalf of their members. Licences negotiated directly with the rights holders will be on the terms negotiated at the time.

A Licence is Not Ownership

When a copyright owner grants a licence, he or she is permitting another person to use their work, but they still retain ownership and all the rights that come with it. Generally, a non-exclusive licence is granted, which means that the owner may grant rights to others to use the same sample. You may seek an exclusive licence, but this is very difficult to obtain and rarely given.

What if the Sample is a Small Portion of the Song?

To infringe copyright, the Copyright Act 1968 (Cth) specifies that the use must be a reproduction of a ‘substantial’ portion of the work. There are no simple ground rules for defining what is considered a substantial part. It is clear however that it is quality, not quantity, that is important in deciding what is substantial. For example, in the famous case of Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Ltd [2010] FCA 29, EMI’s recording of the song ‘Down Under’ was found to have infringed the copyright in the musical work ‘Kookaburra Sits in the Old Gum Tree’. The Federal Court ruled that using two bars of the original song’s melody in a distinctive riff as part of the ‘Down Under’ recording was enough to constitute a reproduction of a substantial portion of the original work.

It may be that by sampling less than a substantial part of the artist’s song, you are not infringing copyright. But when in doubt, contact the owner to request permission, as if the part is worth sampling, it is likely to be considered a substantial part.

Is Anything for Free?

You may be happy to learn that copyright doesn’t protect all songs. Some artists will have granted a Creative Commons licence, which is essentially an open licensing system, meaning you can reproduce the work for free, provided you comply with the terms of the licence. Check out websites like Soundcloud, which has a search parameter dedicated to songs and recordings with Creative Commons licenses, and ensure you comply with the licence’s terms. For example, often the material can only be used for commercial purposes if the original owner is correctly attributed. For more information, see www.creativecommons.org.au.

Key Takeaways

  • Know what you want – identify the part or element of the song you wish to sample before contacting the relevant copyright owner/s.
  • Ask first – before sampling someone else’s song, obtain their permission or obtain a licence from them to do so and get them to confirm they own the rights they are licencing to you.
  • Don’t need a licence? – if you only wish to sample an insubstantial portion of a song, you may think that you don’t need a licence. But if it’s worth sampling in the first place – then you probably do.

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Unsure whether you may be infringing copyright? Get in touch with our IP lawyers today to assist you with all your queries and concerns. Call us on 1300 544 755.

Alexandra Shaw

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