Sampling Music, Fair Dealing and Fair Use in Australia

When you create a piece of music, there is often more than one owner of the track. From composers to producers, to artists, to lyricists, each and every owner has a number of exclusive rights including who can make copies of the track, adapt or change the work, and perform the musical track in public. But what happens when someone samples your track?

There are exceptions in the Copyright Act 1968 (Cth), such as fair dealing that deal with the ‘fair use’ of copyrighted material. Sampling music is where a portion of a song, sound recording or musical track by another artist is used. If you are sampling music in a video or audio production, such as a short film or podcast, it may be considered fair use in Australia. Determining fair use is on a case by case basis as the statute does not define what is fair.

Fair Dealing

In Australia, fair dealing is considered more of an exception than a defence to copyright protection as fair dealing are limits on the ability of the copyright owner to enforce their exclusive rights. It defines the boundaries of the copyright owner’s rights.

Elements of fair dealing have been established in a number of cases in De Garis v Neville Jeffress Pidler and RCN Channel Nine v Network Ten. A court will look at a number of factors including:

• Degree and impression – judged by a fair minded and honest person
• Criticism and review – whether words are of wide and indefinite scope and genuine
• Fairness – judged objectively about the relevant purpose

Sampling Music and Other Copyrighted Materials

If you are using copyright material, you generally need permission to use it from the copyright owner unless one of the specific exceptions to infringement applies. This includes research or study, criticism or review, reporting of news, professional advice given by a legal practitioner or patent attorney and parody or satire.

Whether the use of samples constitutes an infringement depends on whether the samples constitute a substantial element. This is often something that may not be easy to determine. Generally, this is linked to the originality of the work. The sample taken must be significant or critical about those aspects of the work in which copyright exists in order to be constituted an infringement. Most notably, musical work is to be judged by the ear, and not a matter of note for note comparison. You only need permission if you are using a large part of the composer’s music or track.

Music Parody

If you are producing a song that aims to make a ‘political statement’, this could perhaps be justified under ‘fair use’ as parody or satire. This is because there is use of distinctive elements of a work that is familiar to an audience to make social and political comment that is unrelated to the work.

Conclusion

To use someone else’s musical track or song, you must be granted permission by obtaining a licence from the owner of the copyright. Our intellectual property lawyers can also assist you in understanding your rights in protecting your music. Call us on 1300 544 755 or use the contact form on this website to get in touch!