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Copyright in samples

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21/07/2016

Ed Sheeran, Madonna, Justin Bieber and Led Zeppelin.  All household names from the music industry with something else in common: they have either within the last month faced or are currently facing a law suit for copyright infringement in the US.

We have written before about copyright cases involving musicians; see, for example, this article concerning Jay Z, who, through no fault of his own, is no stranger to copyright law, or this article which discusses in a little more detail than here the dispute around Led Zeppelin’s “Stairway to Heaven”.

The case involving Madonna is perhaps the most startling. The claim against her concerned the song “Vogue” and an allegation by the plaintiff that a producer had copied a section of a horn arrangement.  The section of the horn arrangement in question lasted 0.23 seconds.  This was a case about “de minimis sampling”, where a small element of a track is sampled in another and, specifically whether the US “de minimis” doctrine applied to sound recordings.  On this question, previous authority (from the Sixth Circuit) was to the effect that even a de minimis sampling would infringe copyright law, but the Ninth Circuit, ruling on the Vogue dispute, was unpersuaded that this was correct.  The Court concluded that “a reasonable jury could not conclude that an average audience would recognise the appropriateness of the composition”.  However, the decision was not unanimous, with the dissenting judge stating that the size of the sample in dispute was immaterial, it being “no defence to theft that the thief made off with only a ‘de minimis’ part of the victim’s property”.

The ruling could therefore enable short samples to become increasingly commonplace within the music industry.

Madonna is not the only high-profile artist who has been recently subjected to a law suit for an alleged copyright infringement. Singer-songwriter Ed Sheeran is currently subject to a $20million law suit with regard to his 2014 record ‘Photograph’ which is alleged to have shared 39 similar notes with Matt Cardle’s ‘Amazing’. Similarly, Justin Bieber’s 2015 record ‘Sorry’ is subject to action as its distinctive vocal riff was allegedly lifted from Casey Dienel’s ‘Ring the Bell’.

What is prompting the wave of claims for copyright infringement of this type? In part, it may be that advances in software have made it easier to establish similarities between different songs than was the case previously.   When samples are as short as fractions of a second, however, it can be very hard to establish actual copying as opposed to, for example, the inadvertent recollection and recreation of music heard years previously.

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