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In the world of remixes and mash-ups, legal disputes over music sampling and copyright infringement should be around every corner. We all heard about the case between Martin Gaye’s “Got to Give it Up” and Robin Thicke’s “Blurred Lines”, which illustrates the real blurred lines between music sampling and copyright. So when does music sampling constitute an infringement?

What is Copyright?

To put it simply, copyright law in Australia is governed by the Copyright Act 1968 and provides the owner of the original works with a set of exclusive rights.

The complication with music is that it is difficult to ascertain who owns the copyright:

  1. The musical work is generally owned by the composer or musician;
  2. The lyrics may be owned by a lyricist or the composer himself; and
  3. The sound recording is generally owned by the company who releases the recording.

This complicates matters when attempting to obtain permission from the copyright owner in order to sample their material, or part thereof.

Are You Gambling by Music Sampling?

The key to sampling music is understanding what is considered a ‘substantial part’. This is the million, or in the case of Gaye and Pharrell, the 7 million, dollar question. Contrary to popular belief, there is no 10% leeway rule that excludes you from copyright infringement.

In the case of musical works, the substantial part is not determined note by note, but whether the substance of the original work has been used. In the case of Hawks & Son v Paramount, the use of 20 seconds of a 4-minute long piece of music was enough to constitute a substantial part, as the 20 seconds were recognisable as a vital and essential part of the original song.

Similarly, in the Kookaburra case (EMI Songs Australia v Larrikin Music Publishing), EMI’s recording of the Men at Work song ‘Down Under’ were found to have infringed the copyright in the song ‘Kookaburra Sits in the Old Gum Tree’ by using its melody.

These cases illustrate the blurred lines of what is considered infringing. If you are worried about your new song containing a substantial part of original works, contact the owner to request permission to use the sample.

Difference between Music Sampling and Mash-Ups

Music sampling usually involves using a short segment or element of an original work in a new music compilation. A mash-up, however, is a new musical work created entirely from two or more pre-existing songs, by basically mashing them together. Now you’re thinking, with all the remixes and mash-ups out there these days, surely those are using a substantial part of the original. 

However, whether you infringe copyright depends on what you do with your mash-up. Most creators want to upload their work online on social media platforms such as Soundcloud, YouTube, Facebook. Each of these platforms will have terms and conditions regarding uploading material that is owned by a third party. Ever had a YouTube link you uploaded taken down? This is because their terms and conditions allow copyright owners to submit “takedown notices” to YouTube to remove the material. If you want to start commercially distributing your mash-up, you will need to obtain the appropriate permission, and it is best to seek advice from a lawyer.

Fair Dealing Exception

The fair dealing exception applies to the fair use of an original works for the purpose of research or study, criticism or review, parody or satire, or reporting news. This provides a little wiggle room for artists when sampling music or creating mash-ups or remixes.

To qualify for the fair use exception, the court will consider a number of factors, including the following:

  1. What is the purpose and character of the use? Is it a genuine parody or satire of the material?
  2. Are you using it for commercial distribution?

If you can answer yes to (1) and no to (2) then it is more likely that fair dealing will apply.

Key Takeaways

Now that you have understood the basics, you can start creating your music.

  • Determine who is the relevant copyright owner – remember this could be different people depending on what part or element of the artistic work you are sampling.
  • Obtain a licence – this is a licence to use the music sample, obtained from the owner. This means that the owner retains all copyright in the material, and they are merely licensing it to you.
  • Upload your mash-up – remember to read the terms and conditions of whichever platform you decide to share your music.

If you have any questions about music sampling or mash-ups, get in touch with our intellectual property lawyers.


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