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USW Sampling & Plagiarism

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Lucy Thomas

on 12 February 2017

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Transcript of USW Sampling & Plagiarism

Sampling & Plagiarism
Lucy Squire
Plagiarism
The Legal Position.....

Plagiarism is the
taking of someone else`s ideas & passing off as your own.

Need to prove that someone has access to your material & the sound alike is not just a coincidence.

Possible to unconsciously copy/arrive at similar sound

Plagiarism is an infringement of copyrights (ss16-21 CDPA 1988)
What is sampling & plagiarism?


Discussion
Sampling
Taking part of someones work & including it (possibly after manipulating it) in their own.

Only a deliberate act

Sampling is an infringement of copyrights (ss16-21 CDPA 1988)

Can be infringement of the sound recording, musical or literary copyright
Discussion
Is sampling & plagiarism theft?

Can it be unconscious?

Is motive relevant?

What about creativity & ethics?
How do you clear a sample?
Get permission - ideally before invest time (not always possible). Negotiate terms, contract & license.

Record companies require samples are cleared & artist guarantees this i.e. artist responsibility!
Richard Walmsley v Acid Jazz Records Ltd (Harrison page 339)

Extend to producers & remixes contracts who can also "insert" samples

Common in some genres & record company may offer to help clear
Where do you go to clear samples?
Owner of original copyright in sound recording - look at recording for copyright notice c Sony 2014

May also be copyright in the words & music = publisher

Allow time & opt for an agreement in principle (some artists wont allow) & then negotiate terms

PRS database who controls publishing rights

Sample reconstruction (avoid sound recording copyright). Can still cause problems if identical

How much does it cost?
Negotiation - no fee list

Sound recordings record company - upfront sum & further fee when sold a certain number of copies - comes out of artist royalties

Publishers - % of published track. Can be upto 100% for substantial use (Ludlow 50%)

Musicologist`s report

Copyright Infringement - owner compensated - sued for damages (CDPA ss96-110)

Royalties frozen while dispute resolved by record company & PRS

Injunctions preventing distribution & recalled from shops to be destroyed. Certain tracks omitted.

Not all copyright owners see it as a negative - attributed.

Fair use & Creative commons
https://creativecommons.org/legalmusicforremixing/
What happens if you don't clear a sample?
Learning Outcomes
By the end of the session you will be able to:


define what sampling & plagiarism are.

understand how to clear a sample, the costs involved & the legal positions.

site relevant case law


Task
The sample used will infringe copyright if it is a ‘
substantial part
’ of the original & is used without the necessary permissions (
CDPA s16)

The sample is considered ‘substantial’ by reference to its
quality
rather than its length. If it is recognisable, however short, as coming from the original piece of music then it should be regarded as being substantial & the sample must be "cleared"
Copying someone else’s work & claiming it as your own.

While the act can be illegal, as well as unethical, the term plagiarism
is not
used in law.


Sampling & Plagiarism
Theft Act 1968

A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it


Legally
Plagiarism
is one form of copyright infringement.

Which one?
Consider these questions again....
George Harrison vs Bright Tunes Music Corp 1976
What happened?

▪ The plaintiff claimed that My Sweet Lord was plagiarized from an earlier successful work, He’s So Fine.

▪ Copyright was infringed, even though George Harrison did not deliberately use the music from He’s So Fine.
▪ George Harrison’s attorneys tried to prove differences between the two songs, but had little success.

▪ Harrison himself acknowledged on the stand that the two songs were substantially similar.

▪ Harrison’s expert witness, Harold Barlow, acknowledged that both motifs were in the public domain & in his many years of experience had never encountered such unique sequential use of the materials.

▪ George Harrison was found liable for subconsciously plagiarizing as the two songs were virtually identical with different lyrics. He was ordered to pay the amount of $587,000.00 (originally $1.6 million award).
The Ruling
The Claim
What do you think?
How much is a sample?
* note - o
nly an issue if you plan to make copies & distribute to the public or for fair use
Quality not quantity...
Could it be less than 20 seconds, a single horn stab?

VMG Salsoul, LLC v. Ciccone (2016)
Percussive “horn hit” allegedly infringed in Madonna song was not copyrightable & did not infringe a horn hit used in a prior musical work.

The horn hit in the plaintiff’s musical work was not sufficiently original to be protected by copyright & even if it was protectable & had been copied by the defendants, their use amounted to non-actionable de minimis copying.

Having listened to the sound recordings of Love Break & Vogue, the court held that
“no reasonable audience would find the sampled portions qualitatively or quantitatively significant in relation to the infringing work, nor would they recognize the appropriation.”

The court concluded that any sampling of the Horn Hit was de minimis or trivial.

Case makes it easier to sample small portions of a song
The Ruling
NWA successfully sued over 2-second Funkadelic sample

Court ruled that recording artists must clear each musical sample in their work – even minor, unrecognizable “snippets” of music.

Implications for hiphop artists

This split between two USA circuits could even ultimately set the issue on the path to the Supreme Court, though it could be a long time before such a hearing takes place. Why?
Madonna case conflicts with previous ruling i.e. Bridgeport Music Inc. v. Dimension Films (2005)
www.soundonsound.com
Working in pairs bring a legal case involving IP of your choosing to class to present. Role play each parties arguments & summarise the industry implications of the ruling.

Utilise this good work to form an engaging blog post & publish.
Ideas don’t qualify for copyright protection.

works in the public domain and not protected by copyright.

where the copyright period has expired
Plagiarism often covers things that are not covered by copyright
Loudon Wainwright III - I Am the Way
Robbie Williams- Jesus In A Camper Van
Ludlow case (Harrison p342)
http://news.bbc.co.uk/1/hi/entertainment/1820351.stm
Full transcript