Despite its widespread use within various cultures, music sampling has remained a highly contentious issue within copyright law. Music sampling, the act of borrowing parts of existing songs for new compositions, has become a significant element of modern music production, especially in hip-hop, pop, and electronic genres. It is a powerful tool that pays homage to earlier works, remakes old ideas, and helps build on the cultural legacy of music, resulting in something fresh and innovative. The controversies associated with this form of borrowing pertain to the infringement of intellectual property rights, the concept of creativity, and the definition of what constitutes acceptable usage. A recent example of how music sampling could be a controversy is the “blurred lines” copyright infringement case involving Pharrel Williams and Mavin Gaye’s[1] estate as Mavin Gaye sued Robin Thicke and Pharrel Williams for allegedly copying the “feel” of Gaye’s song “gotta give it up” for their hit song “blurred lines.”. This case quite literally blurred the lines of infringement and inspiration and paved the way for the famous “fair use” doctrine. This blog further analyzes this fair use doctrine and compares it with the Indian “fair dealings” approach
Although there are no specific provisions in India pertaining to music sampling, Section 13 of the Copyright Act talks about how copyright persists in original, literary, artistic and dramatic, and musical works, as well as cinemas and sound recordings.
Section 14 of the Indian Copyright Act provides the copyright holder with specific exclusive rights to protect their entire work or a significant portion of it. A musical work’s owner is the only person with the authority to alter it, according to Section 14(a).
There are two ways a copyright breach can happen in the case of music sampling. The copyright owner’s 14(a) rights were violated. A musical work’s owner is the only person with the authority to alter it, according to Section 14(a). Under Indian copyright law, adaptation is the same as a derivative work under US copyright law. The process of turning an old work into a new one is called adaptation. A copyright holder’s exclusive right to make any adaptable work is violated when a musical composition is transcribed or when any existing work is rearranged or altered. . The sound recorder’s 14(e) rights were violated: Furthermore, the original sound recorder’s 14(e)(iii) rights will be violated if such a musical composition is distributed by making it accessible on a commercial platform
Indian courts employ a two-pronged assessment in cases involving violations of music samples. This test determines if the rights of a copyright holder have been infringed. The test demands that the challenging work be a copy of the original work and that there be a substantial similarity between the original and infringing works. In the case of Eastern Book Co. v. D.B. Modak[2] , the Supreme Court of India upheld this criteria, which were:
- Originality-.The Supreme Court ruled in this case that the original work should be the product of an exercise of skill and judgment and it is a workable yet fair criterion.” The low bar for originality set by the sweat of the brow tilts the copyright protection scales too far in favor of the owner’s right and prevents copyright from serving to safeguard the public interest in maximizing the creation and distribution of intellectual works. The Court further noted that a work that is protected by copyright must be unique and independently produced via “application of substantial degree of skill, industry, or experience.” It is important to remember that Indian courts have repeatedly emphasized that independently produced works are protected by copyright, regardless of how similar they are to previously published works.
- Substantial Similarity: The quality of the copyrighted work, not its number, determines the sampling of a significant amount of the original copyrighted work. In Twentieth Century Fox Film Corp. v. Sohail Maklai Entertainmentf[3] (P) 4Ltd, the Bombay High Court ruled that the quality of the copied work, not its number, determines “substantial similarity” between the original and the copied work. Determining whether the similarity is substantial is not significantly affected by the sample’s use of only four notes. There may be an infringement if a qualitative examination of the works reveals a definite likeness between them.
The Indian Copyright Act of 1957 does not define the term “fair dealing. A fair dealing with any work, excluding computer programs, for private or personal use, including research, criticism, or review, whether of that work or of any other work, as well as reporting on current events, including a lecture given in public, shall not be considered a copyright infringement, according to Section 52(1)(a). “It may be reasonable to hold that the reproduction of the whole or a substantial portion of it as such will not normally be permitted and only extracts or quotations from the work will alone be permitted even as fair dealing,” the Kerala High Court ruled in Civic Chandran v. Ammini Amma[4] in order to explain the concept of fair dealings. This case also determined some criteria to determine if the replication was an infringment. These were:
1. The quantum and value of the matter taken in relation to the comments or criticism
- The purpose for which it is taken;
3. The likelihood of competition between the two works.”
US FRAMEWORK ON MUSIC SAMPLING
In the US, it is prima facie infringement to sample in any way without the copyright owner’s permission; hence unauthorized use in any way without the owner’s consent, such as sampling a song is copyright infringement and is illegal. The U.S. federal appeals court held in Bridgeport Music, Inc. v. Dimension Films[5] that 6 recording artists are required to obtain permission for any musical samples in their work, including small, indistinguishable “snippets” of music. The lower court had decided that while it was acceptable to utilize musical snippets as long as they were unidentifiable, artists were required to pay when they used recognizable samples of other artists’ works. That distinction was eliminated by the 6th Circuit Court of Appeals’ ruling.
The U.S. Supreme Court overturned a lower court’s ruling in Acuff-Rose Music v. Campbell[6] ,which determined that Live Crew’s parody of Roy Orbison’s “Oh, Pretty Woman” violated copyright and was not fair use under the law. The Supreme Court disagreed, saying that while it could be fair to incorporate earlier work, it must be decided case-by-case.
The following standard for considerable similarity was subsequently adopted; they were
- Does the plaintiff possess legitimate copyright to the purportedly copied material?
2. Did the defendant make a copy of the work that was violated?
3. Is there Substantial similarity from the original piece of work?
In order to balance the rights of the holders and safeguard the public interest, the United States has a theory known as “fair use” that permits the copying of works protected by copyright to a certain extent, usually limited. Examples of content that is generally protected under the fair use doctrine of US copyright law include scholarly works, research and education, news broadcasts, critique, satire, search engines, and commentary. The roots of the concept of fair use dates back to the 19th century with the landmark case of Foslom v. Marsh and this landmark case, the doctrine of fair use was initially coined. This case provided the four characters to help us decide whether a given work would come under fair use. They are:
1. Purpose and Character of the Work
2.Nature of the copyrighted work;
3. Amount of the copyrighted work used
4. The effect the copyrighted work had on the market
The argument of fair use appears to be relatively restricted for works that are allegedly substantially similar to an earlier work. However, for a sample to be eligible for fair use, it must be utilized for non-profit purposes like research, education, news reporting, parody, or criticism. Just because a sample sounds excellent doesn’t mean that it qualifies for fair use protection; in fact, the opposite is true. The idea that one “can use four notes of any song under the ‘fair use’ doctrine” is completely untrue, according to Mr. McCready. He notes that “one note from a sound recording is a violation of copyright.”
Indian and U.S. provisions concerning music sampling are alike in some respects but different in others. Both permit unauthorized use of a musical work to qualify as copyright infringement if not sanctioned by the copyright owner. India, under Section 14(a) of the Copyright Act, allows the owner to have exclusive rights to change her work, similar to the U.S. requirement of getting permission to sample, as held in Bridgeport Music, Inc. v. Dimension Films. Both jurisdictions rely upon the doctrine of substantial similarity, though India zeroes in on the qualitative aspects while the U.S. follows case-by-case scenarios under Acuff-Rose Music v. Campbell, such as in the case of Twentieth Century Fox Film Corp. v. Sohail Maklai Entertainment (P) Ltd.
However, the U.S. provides a more defined framework for exceptions under the doctrine of fair use, guided by four factors, including purpose, nature, amount, and market impact, as developed in Folsom v. Marsh. In contrast, India relies on the concept of “fair dealing” under Section 52, which is less clearly defined and more restricted in scope, and emphasizes private or personal use, criticism, or review. Therefore, while both frameworks generally seek to balance the rights of copyright holders and the public interest, the U.S. approach has the advantage of more extensive and structured exceptions than India.
Author: Gowri K, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.
REFERENCES
- Carlos Ruiz de la Torre, Digital Music Sampling and Copyright Law, 7 Vand. J. Ent. & Tech. L. 411 (2005).
- . Full citation: Sufiya Ahmed, Fair Dealing in Indian Copyright Law, 26 J. INTELL. PROP. RTS. 96 (2021).
- . Geetika Rajkumari & Aaditya Bajpai, Striking the Right Chords: The Intellectual Property Landscape of the Music Industry, 2 NLUA J. INTELL. PROP. RTS. 2 (2021).
- Sreya Elsa Biji, Critical Analysis on Music Sampling Under Copyright Law, Int’l J. All Research Educ. & Sci. Methods (IJARESM), Feb. 2024, at 325, available at ijaresm.com.
- Music Sampling and the Defence of Doctrine of Fair Use. Feb. 11, 2022. https://www.mondaq.com/india/copyright/1158044/music-sampling-and-the-defence-of-doctrine-of-fair-use.
- SCC Online. Everything You Need to Know About Music Sampling. 14, 2021. https://www.scconline.com/blog/post/2021/09/14/everything-you-need-to-know-about-music-sampling/.
[1] Williams v. Gaye, 895 F.3d 1106 (9th Cir. 2018)
[2] Eastern Book Co. v. D.B. Modak, (2007) 6 SCC 176 (India).
[3] Twentieth Century Fox Film Corp. v. Sohail Maklai Ent. (P) Ltd., (2008) 12 SCC 198 (India).
[4] Civic Chandran v. Ammini Amma, (1996) 5 SCC 32 (India)
[5] Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005)
[6] Acuff-Rose Music v. Campbell, 114 S.Ct 1164 / 510 US 569, 575 (1994