A ‘sample’ of the music industry’s issues ?

September 2019

COPYRIGHT

This week it has been reported that Ernie Hines, the American soul musician, has filed a lawsuit against Sony Music and Roc-A-Fella Records, whom published Jay-Z and Timberland 1998 track ‘Paper Chase’ and Timbaland’s 1999 track ‘Toe 2 Toe’. Uproxx reports that the claimed value of the suit is $2 million.

The allegations stem from Hines’ 1970 track ‘Help Me Put Out The Flame (In My Heart)’, a sample of which has allegedly been used in ‘Paper Chase’ and ‘Toe 2 Toe’. Hines claims that, whilst the tracks were released nearly two decades ago, he has only just heard them, the Blast reports that the complaint explains that “[Hines is a] senior citizen, does not listen to rap music and was unaware [that the songs contained his music and composition.”

It is claimed that in both matters the sample was used without consent of Hines, and in the case of Jay-Z it is claimed the infringement was wilful due to the fact that the TIDAL music streaming service lists the sample.

But this is only one sample of an issue in the music industry, for example in 1999 Produce Records sued BMG Entertainment over a 7.5 second sample, this case eventually settled before it got to court.

The Verve’s ‘Bitter Sweet Symphony’ is perhaps the clearest warning against the use of un-cleared samples. The Verve’s track sampled the string element from ‘The Last Time’ by the Andrew Oldham orchestra, which in turn was arranged and written by David Whitaker, which again in turn was inspired by the Rolling Stones track ‘The Last Time’. The Verve had a licence to use the sample from the Andrew Oldham orchestra but ABKCO (Roling Stones manager, Allen Klein’s holding company and owner of the copyright in the Rolling Stones’) sued the Verve over an allegation that the band had used a lengthier sample that was initially agreed. Whilst this case also settled out of court, the Verve surrendered 100% of their royalty rights in respect of ‘Bitter Sweet Symphony’ and amended the song writing credits to name Mick Jagger and Keith Richards (who won an Ivor Novello award for their ‘efforts’). 

In the UK, the law with regards to music samples and copyright is very clear: a sound recording is protected by way of copyright regardless of the medium of the recording, and will enjoy protection for either 50 or 70 years (this depends on whether a sound recording has been published, played or communicated in public).

An infringement occurs if a copy of is made of the whole or a substantial part of the sound recording. However, the ‘substantial part’ test, in sound recordings, is rather misleading. It is not possible to say that the test is solely a quantitative test. At the moment we are awaiting the decision in the case of Pelham GmbH and others v Ralf Hütter and another (Case C476/17), this case is interesting on a sampling front as it relates to a two second sample, whist the case has not been decided by the European Court of Justice as of yet, Advocate General Szpuna has advised the Court that the two second sample does infringe copyright.

In short, the practice of incorporating a sample into a sound recording is not without risk and whether two seconds or ten, who knows what a substantial part is! Jay-Z and Timbaland may be finding this out the hard way.

Hines has filed against Jay-Z, Timbaland, Roc-A-Fella Records, Def Jam Recordings, Universal Music Group and Sony Music.

By Sam O’Toole

https://thegrapevine.theroot.com/paper-chase-jay-z-and-timbaland-slapped-with-2-millio-1834890003

https://www.billboard.com/biz/articles/news/legal-and-management/8512449/jay-z-timbaland-sued-for-copyright-infringement-over

BenChallis’ now 15 year old review of the US and UK positions on sampling The Song Remains The Same still sets out much of the relevant case law on both sides of the pond. http://www.musiclawupdates.com/wp-content/uploads/pdf-articles/Article-The_Song_Remains_the_Same.pdf. Since then of course we have had the now infamous ‘Marvin Gaye’ or ‘Blurred Lines’ case and a number of other interesting cases exploring sampling.

https://www.wipo.int/wipo_magazine/en/2015/05/article_0008.html

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