To sample or not to sample?

A good thing about my 20-minutes long morning commute to the office is that this is a 20-minutes long, uninterrupted music session for me. When I was listening to Veronica Maggio this morning (I know, this is my guilty pleasure), my IP-tuned mind immediately started to boil up around the idea of how much of the music I hear is actually an original creation? Also around how much of the music that is licensed in the best case scenario (“borrowed” in the more down to earth scenario)?

Sampling, i. e. the reuse of a portion of a sound recording in another recording, is a widely spread practice in the music industry. However, the legal aspects of it are as messy as Kanye West and Taylor Swift relations (yes, Veronica Maggio is not the only one on my playlist).

Let’s dig a little deeper

In the US there are currently two decisions of two federal appeals courts coming to completely opposite conclusions regarding sampling:

  1. In Bridgeport Music v. Dimension Films case the court emphasized that when even a small part of a sound recording is sampled, the part taken is something of value. The intentional sampling takes place because it would (1) save costs; and/or (2) add something to the new recording. Therefore, the court put it boldly: “Get a license or do not sample”.
  2. In a more recent case (VMG Salsoul, LLC v. Madonna Louise Ciccone), however, the court took a different approach. The court pointed out that “de minimis” exception should be applied in relation to sampling. In the case at hand, sampled piece was only a quarter second long. Therefore, it is impossible for the public to recognize the appropriation. The copier has not benefited from the original artist’s expressive content. Accordingly, there is no infringement.

The Supreme Court of the US has not resolved this conflict yet. Until then, a performer who wants to sample should obtain a license from both the owner of the copyright in the recording and (unless fair use) from the composer.

In the EU, the Court of Justice of the European Union has recently issued a decision addressing the sampling matter (Pelham case C-476/17). The court has stated that the reproduction of a sound sample (even if very short) should be regarded as a reproduction in part, and therefore falls within the exclusive right granted to the producer of the recording. However, there is no reproduction when the sampled piece is used in a modified form, unrecognizable to the ear.

This way the balance between IP rights and freedom of expression is (supposedly) maintained. Or as Avril Lavigne would put it (with slight variations made by me):

“Why'd you have to go and make [sampling] things so complicated?

I see the way you're acting [Court of Justice] like you're somebody else gets me frustrated

Life's like this, you

And you fall, and you crawl, and you break

And you take, what you get, and you turn it into [reasonable court decision]

Honesty and promise me I'm never gonna find you fake it

No, no, no”

("Complicated" by Avril Lavigne)

My view

The outcomes of this decision are yet to be seen. However, in my opinion, it is quite difficult to understand what kind of assessment one should carry out in order to draw the distinction between the recognizable and unrecognizable samples and, hence, presence or lack of infringement.

To be on the safe side, one should always consider sample licensing when navigating troubled waters of music IP. If for some reason you get lost in them, you are very welcome to contact me at Bergenstråhle & Partners for professional assistance.

/Anna Fokina/

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