Sep 13, 2018

IP ABC: Does Sampling Music Amount To Coyright Infringment | Infusion Lawyers




We are The Dambu Guys, a rap and hip-hop group in Nigeria. In 2006, we used 20 seconds of music fromAhmed Daura’s ‘Ina Sonki’ in one of our songs, ‘Dambu Dose’. Ahmed Daura is an established and popular flute player in Nigeria. ‘Ina Sonki’ is one of the tracks in Ahmed Daura’s 1988 album published by Tarouni Times, a leading music-publishing company and record label in Kaduna. We since released ‘Dambu Dose’ and it has been enjoying air play and downloads.



Last week, we received a demand letter from Tarouni Times’ lawyers. They are demanding 250 million naira from us for allegedly infringing their copyright in the sound recording of ‘Ina Sonki’. They also demanded a separate 150 million naira for allegedly infringing on Ahmed Daura’s copyright in the musical composition of the song.

But we find the demand surprising. This is because we used only 20 seconds of the over 4-minute song. Only 20 seconds! Our song ‘Dambu Dose’ is original. If we remove Ahmed Daura’s sound recording and musical composition from the song, it won't take anything away from it. Besides, ‘Ina Sonki’ is an old song and Ahmed Daura has since retired from the game, decades ago. So we ask, are we liable for copyright infringements as alleged?

Answer

What The Dambu Guys has done is an act of sampling; and sampling a song without the copyright owner’s permission amounts to copyright infringement, except the sampling is found not to be substantial or the original song is in the public domain. What amounts to substantial is as determined by a court of law based on the circumstances of each case.


Sampling involves taking a portion of a sound recording for use in another sound recording.

Sampling is not defined in the Nigerian Copyright Act. But according to Wikipedia, sampling is “the act of taking a portion, or sample, of one sound recording and reusing it as an instrument or element of a new recording.” So incorporating pre-existing recordings into a new recording is what sampling is all about. Sampling is a common activity in music creation but if done wrongly—without due permission for instance—the user is risking a lawsuit.


The Dambu Guys’ liability for copyright infringement depends on the nature of copyrighted work allegedly infringed upon.

If in the 20-second sample of ‘Ina Sonki’, The Dambu Guys uses the sound recording only—the sequence of sound such as beat, melody, or tune—this touches on the record label’s copyright in the sound recording.

And if the sample contains a part of the musical composition (lyrics) only without the sequence of sound, The Dambu Guys is liable for infringing the music publisher’s or songwriter’s copyright in the musical work.

But if in the sample of the song, The Dambu Guys uses a part of the musical composition (lyrics) along with the sequence of sound, The Dambu Guys has infringed on both the music publisher’s or songwriter’s copyright in the musical work andthe  record label’s copyright in the sound recording respectively.


The distinction above is vital because songs typically contain both sound recording and musical composition, with each one enjoying separate copyright protection, thus requiring separate licence from the copyright owners.
 

First, a song comprise musical composition, eligible for copyright protection. Under section 51 of the Nigerian Copyright Act, a musical work is defined as any musical composition and includes works composed for musical accompaniment. In this regard, Ahmed Daura (or the songwriter as the case may be) has copyright in the musical work, ‘Ina Sonki’. Section 6 of the Nigerian Copyright Act gives the copyright owner exclusive control over acts such as commercial distribution of the work, performance of the work, publication of the work, reproduction of the work, etc. It is immaterial that the song is no longer in vogue or the artist ‘has retired from the scene’, except the artist is no more and seventy years has passed the year of artist’s death.


Second, a song may typically comprise sound recording and this recording qualifies for copyright protection under the Nigerian Copyright Act. Sound recording means the first fixation of a sequence of sound capable of being perceived aurally and of being reproduced. Copyright owners of sound recordings do not enjoy as much exclusive control as copyright owners of musical works do. This is because the exclusive rights given to copyright owners under section 6 of the Nigerian Copyright Act only apply to a literary or musical work {section 6(1)(a)}, artistic work {section 6(1)(b)}, and cinematograph film {section 6(1)(a)}. The reason for this is that originality is not a requirement for copyright protection of sound recordings.

Therefore, as far as sound recording is concerned, only the rights granted under section 7 of the Nigerian Copyright Act apply. Section 7 expressly states that copyright in a sound recording is the exclusive right to control two things: (1) the direct or indirect broadcasting, communication, or reproduction to the public of the whole or substantial part of the recording either in its original form or in any form recognizably derived from the original; and (2) public distribution of copies of the work for commercial purposes. Tarouni Times, the record label, controls sound recording.

Also, copyright in the sound recording of ‘Ina Sonki’ subsists for 50 years after the end of the year in which the recording was first published. Since the recording was published in 1988, the recording is not in the public domain yet.


The question now is this: Does The Dambu Guys’ 20-second sampling of Ahmed Daura’s ‘Ina Sonki’ amount to substantial part of the recording either in its original form or in any form recognizably derived from the original?

Ordinarily a 20-second sample of a 4-minute song does not appear substantial, but this is a question of fact that only a court of law can make a finding on. Every case is decided on its own merit. For instance, a court may find that the 20-second sample of the song is a major or significant part of the original song, ‘Ina Sonki’.

So for the unauthorized use of musical composition or the unauthorized use of sound recording in ‘Ina Sonki’, The Dambu Guys may be liable for damages. Damages may be compensatory damages for loss of licensing fee.  Alternatively, an account of profits may be awarded. This means payment of a reasonable part of the profits from ‘The Dambu Dose’ as determined by the court.

Therefore, to use a sample of a copyrighted song, it’s safer to either get a licence to use the sound recording or licence to use the musical composition, or both, depending on the sample.

For licence to use the sound recording of the song, this is often controlled or owned by the label, in this case Tarouni Times; while licence to use the composition of the song is typically controlled or owned by the music publisher or songwriter.

To determine if your act of sampling without permission specifically amounts to copyright infringement, get professional advice from an IP lawyer or law firm. 

Best wishes

IP ABC

Source: - Infusion Lawyers


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