SAMPLING – PART 2 OF 3

All musicians who have worked with music on a computer have at some point encountered the legal issue surrounding the use of samples. Made possible by music technology, it is a copyright paradox that, on the one hand, one wants to protect expensive productions from abuse, but at the same time wants a diverse artistic freedom. A Google search on the subject is so misleading that Rumkraft has created a three-part article series that sheds light on the legal issues. The idea is that we will all become wiser on the subject so that we can better take a stand on it.


PART 2 OF 3 – INSPIRATION OR IMITATION?

As mentioned in PART 1 of this series of articles, there are two essential issues in copyright when it comes to sound. The first is about the boundary between inspiration and imitation, for example if you as a performing guitarist imitate a well-known riff. The second is about direct digital sampling of an audio recording that occurs when using a snippet of audio from a medium.

It is the former that is dealt with here in PART 2. The boundary between inspiration and imitation does not directly affect the legal assessment of sampling, but can help to illuminate the outer limit of “artistic freedom” when sampling. Lack of case law in Denmark and conflicting case law from abroad creates some ambiguity at the border between inspiration and imitation

In the following, I will ask you to hold on to your hat and glasses, and your tongue straight in your mouth, because it may well become a bit abstract. The law, unlike your math book, does not have a list of facts; the best argument wins. This article is also a lot longer and more in-depth than PART 1.

Which musical works are protected?

Before we even have to assess whether it is an imitation, we must first find out which musical works are protected against imitation. Basically, only “works” are protected. It is important to understand when it is a work. There must be some kind of originality associated with it before one can call it a work. If this minimum limit did not exist, all creatures, regardless of banality, would enjoy protection under copyright law – thus undermining the purpose of the law, which is to promote creativity by allowing authors to make a living from their creations. Thus, a tone is not protected. Trivial rhythms and some chords are not either; tone sequences, however, can easily be so.

But how do we define originality? Firstly, there is a requirement that the author must have contributed with a creative effort. One outer limit goes by “technical assistance”, where eg mechanical recording of a soloist, without making creative choices at the sound signal subsequently, is not a creative effort and therefore not covered. But this outer limit is not always easy either. With a greater understanding of what goes on in a sound study, it is also in the legal literature and in the opinion of EU law gradually recognized that a number of creative choices are made that give produce the status of authors. Thus, in practice, it may be limited only to the trainee’s assistance.

In order to assess whether the creative effort is creative enough, one must take as a starting point the risk of double creation. Would two musicians independently compose the same thing? If one can answer yes to the question, one must ask oneself the question whether the current music genre is so regular that a given protection would in fact function as an unreasonable monopoly for future composers.

One precisely classifies music genres on the basis of certain principles, including instruments,  rhythms, and something as specific as a sound effect. Many people, for example, associate a special type of  pulse width modulation exclusively with the dub step genre in electronic music, although such an effect has been used on several other instruments via, for example, a guitar pedal in funk and disco up through the 1970s. When a specific sound effect on an instrument is associated with an entire music genre, and a 15-step guide has been createdto how to produce dub step music from scratch, one can get the impression that the requirements for originality are on the verge of being blurred today. Do the “creative” choices then reflect the artist’s personal efforts? As can be seen from the mentioned 15-step guide, you can even buy “sample packs”, which are offered by already existing artists within the genre. This means that you use instruments with exactly the same sound within the same music genre – the same rhythm and maybe also the same structure. Within the dub step genre, it is not so much about tones and melodies, but more about timbres.from various digital bass instruments. One can discuss whether the requirement of originality is met when the average listener would hardly know a significant difference between the different musical works. On the other hand, the possibilities for combination and effect are almost endless, and for that reason alone, it may be concluded that the requirement of originality is almost always met in electronic music production – at least if you ask the European Court of Justice. The Danish courts have also recently recognized an extremely banal compositional effort in the so-called Oister judgment, which is discussed below.

All in all, it is relatively easy to obtain copyright protection through electronic music production.

When do you infringe on an author?

It is clear that one is violating Michael Jackson’s copyright if one imitates all the elements of “Billie Jean” and performs it in front of an audience. But there is also a huge gray field where one can recognize certain elements of an original work in a new work of music. Or you can watch a short film that is incredibly reminiscent of short stories you once read. It is this gray area that is the subject of costly litigation with expert statements.

In order to bring the imitation cases to life, the legal literature has set out some criteria that must be met before there can be a violation. This will be reviewed for musical works in the following.

THE IDENTITY

The first general criterion is that a comparison of two works must sense a form of  identity. After this, the similarities should be assessed on a factual, reasonable and objective basis. In the case of  musical works, it has been discussed whether the assessment should rather be technical when comparing, for example, scores / notes or whether it should simply be “the audible impression” when the sound waves hit the ears.

On the one hand, one can say that the audible impression weighs heavily, as most recipients of a given piece of music in practice will listen before looking at the work in the seams. The first time you hear a  music track, it probably takes place via radio, TV, at a disco, streaming or the like. If you as an  artist feel inspired or offended, a given notation analysis is secondary. The “Blurred Lines” case has also been criticized in the New York Times for emphasizing “sheet music”, as “[i] n 2015, the arrangement of notes on a sheet of paper is among the least integral parts of pop music. creation ”. On the other hand, the technical analysis works much better in the evidence in a given lawsuit. And that is precisely the assessment of a violation. In foreign litigation, emphasis has been placed on both criteria. Based on these considerations, it can so far be concluded that the criterion of identity experience establishes a relatively broad protection against imitation.

But does it not matter that significantly more music is published today? 300 hours of video are uploaded per. minute on Youtube, of which 22.9% is music. Doesn’t that mean that, all else being equal, we get more and more “identity experiences” if the development continues?

A nearby phenomenon is ciphers . Numerals are used in sheet music, and indicate which chord to play. A chord usually consists of three or more notes, but a notation does not indicate, for example, how the chord should be played (rhythm), with which instrument (timbre) or tempo (BPM). Thus, in reality, there are almost endless possibilities to play figures on. Therefore, it is also concluded that chord sequences indicated by figures may be too abstract to enjoy protection, and should consequently be legally free to use, unless “a really strict originality requirement” is met. In the same thread, the comedy-rock band Axis of Awesome starts one of their showswith a comic indication that it is then strange that they have been playing music for over 40 years but still have not made a hit. To this a band member responds: “[…] ’cause we never wrote a four chords song”. Over the next five minutes, the band plays the same four chords while simultaneously performing 38 top hits over the last 40 years. These include artists such as The Beatles, Bob Marley and even Aqua. Have these chord sequences been too banal to protect? Are there certain chord sequences that we as humans feel more comfortable with? And will we ever run out of “the good chords” if they are all protected?

(Also read the article “Your brain is not made for pop music” here).

Vsauce asks the question in the video “ Will we ever run out of music? ”. The music database at Gracenote holds as many as 130,000,000 music tracks that would take 1,200 years to listen through. It is concluded, among other things, that a mathematical mapping of how many combination possibilities there are if one includes all frequencies and digital bits is possible. However, the number is almost infinitely large and misleading, as far from all frequency combinations can be said to be music. Therefore, reference is made to a more realistic study, where it is assumed that 1) the combination possibilities are based on one octave, 2) the many frequencies between the keys are not counted, as the human ear can hardly hear difference, and 3) the key lengths are made up of the whole , half and quarter. Based on this calculation, there are still approx. 79 billion options if the music tracks have a duration of 5 minutes on average. Thus, we would first run out of combination options, if 100 musicians composed one song every second for approx. 250 years. As more than 80 hours of music are uploaded per minute on SoundCloud and Youtube combined, in practice many identical tone and chord sequences have been released.

The “comfortable” combination options are further reduced geographically. An investigationfrom the University of Helsinki has shown that our brain unconsciously compares already known melodies and perceives, for example, tone deviations as incorrect. It can thus be cautiously concluded that we as humans, despite almost infinite possibilities of combination, stick to well-known chord sequences, even if there is no appreciable moment of surprise or originality. However, this does not mean that the requirement for identity experience must generally be strict. A tone or chord sequence that is unusually widespread and unique, such as Michael Jackson’s “Billie Jean”, will appear more offensive, as a close-up imitation will “adorn itself with borrowed feathers” – even if it is super duper simple. In particular, a combination of more specific timbres and tones will result in an identity experience, which, in terms of the nature of musical works, also affects our subconscious. It is believed that a particular “sound” can “direct thoughts and emotions” unconsciously. Such subjective, unconscious affiliations, however, can hardly result in objective criteria for violation, but timbres are measurable and can probably well be used as an argument for identity between two musical works. In the same direction, the Swedish Supreme Court in a case where it was to be assessed whether 8 measures could be protected, emphasizedboth melody and the instrumental (the timbres of the violin). The chord process was in itself too ” conventional “.

In order to conclude the criterion of identity experience, a violation assessment should be given importance that 1) the number of music publications has generally increased, which is why a monopolisation of more or less simple tone and chord runs is not desirable, and 2) that uniformity in timbre, therefore also sound sampling, must benefit the infringing author, as the combination possibilities can still be said to be many. In addition, it must be assumed that the protection is broad, especially with widespread knowledge of a given piece of music.

REFERENCE REQUIREMENT

The second criterion is that one must have had knowledge of the work that is allegedly violated – that is, a claim for imitation. This requirement basically restricts the broad protection of identity experience. Duplicate creations can occur, and when two authors have independently created mutually similar musical works, there is no violation – even if the other work was created 10 years later. Audio sampling will always meet this requirement. In practice, the question is asked: “Could the alleged infringer have created the work without knowledge of the other work?”. In any evidence, it is thus more difficult to convince the judge if the “original” work is very original. Incidentally, the imitation does not have to be deliberate either.

On the other hand, future artists should be able to be inspired by past works. But when is a piece of music more original? Is it the number of instruments, effects? Rhythmic complexity? In a recent, comprehensive theoryon simplicity, the question has been the subject of a detailed statistical analysis with landmark results as a result. The thesis proves the claim that it is the mixture between what we already know and the desire to be surprised that determines the success of a musical work. Based on an analysis of 500,000 albums based on 15 different music genres with 374 sub-genres over the last 50 years, it is shown that there is a clear connection between, on the one hand, complexity in instrumentation, and record sales on the other. When record sales within a certain genre increase, so does the number of “copyists”, but since they can / must not compose exactly the same, the genre automatically becomes more complex. The complexity leads to lower record sales as one moves away from what is traditionally called pop music until it turns, because a new trend is emerging which is pleasing to the average listener. The inspired musicians subsequently simplify the music in instrumentation, after which record sales rise again. Although complexity in this context, according to the analysis, reflects the use of more elements and better musicians in the musical work, the conclusion testifies that the simple production has greater sales value. Imitation thus seems on the one hand to be a matter of course to satisfy the consumers / listeners, but on the other hand the risk of double creations, where both have inspiration in a third work, is greater if you as an artist try to have radio success. according to the analysis, reflects the use of more elements and better musicians in the musical work, the conclusion testifies that the simple production has greater sales value. Imitation thus seems on the one hand to be a matter of course to satisfy the consumers / listeners, but on the other hand the risk of double creations, where both have inspiration in a third work, is greater if you as an artist try to have radio success. according to the analysis, reflects the use of more elements and better musicians in the musical work, the conclusion testifies that the simple production has greater sales value. Imitation thus seems on the one hand to be a matter of course to satisfy the consumers / listeners, but on the other hand the risk of double creations, where both have inspiration in a third work, is greater if you as an artist try to have radio success.

A related imitation problem is “wandering melodies”. It is clear that you can not get copyright to something you have not created yourself. But you can still do it if it is processed sufficiently. With inspiration in these wandering melodies, an almost identical adaptation can be done by two different artists. The burden of proof lies with the plaintiff, who in several cases has had to give up, as the melodies of previous musical works have preceded the musical works referred to in the cases.

Concluding for the “imitation requirement”, it can be said that the above-mentioned theory of simplicity should be taken into account in  certain, commercial products that have the same, wide audience, such as pop music. In the USA, they operate with a so-called “audience test”, where such objective conditions can be taken into account. In the Nordic countries, however, the requirement for imitation still seems to depend on an overall assessment from case to case.

IMITATION SHOULD BE PROTECTED IN ITSELF

Even if a work is copyrighted because it is original, it is still possible to borrow those parts of the work that do not in themselves meet the originality requirement. These unprotected fragments can be especially important when it comes to illuminating the limit of sound sampling.

Thus, it is possible to imitate (not sample) small pieces of musical works and process them as you wish. For comparison, it is also possible to use single words from 5 different poems and compose them in his own way. According to the latest case law of the European Court of Justice, however, it does not take much before the requirement of originality is met, see above.

In a recent judgment handed down by the Maritime and Commercial Court on 18 August 2014, the court had to decide whether the  words “Oister Oi”, which are said in three identical tones, enjoyed copyright protection and then assess whether there was an infringement. using the same rhythm but different tones. The figure shows the annex  presented in the case.

oister-dommen-bilag-noder

The case was more about an expired license for the use of a musical work produced by the band  “BLIGLAD”. When the telecommunications company “Oister” wanted to make a new TV advertising campaign, (almost) the same jingle was used – “Oister Oi” – just sung by a female vocalist in a different tone. Thus, there was no doubt that the first two requirements for identity experience and imitation were met. It was solely about whether the given piece of music in itself enjoyed copyright protection.

Despite the fact that it was not the same tones, but only the same rhythm and (fantasy) words,  the court emphasized that the text and the music should be assessed together and that the degree of originality was  met. In the literature, it has otherwise been concluded that “ music is subject to a quantity requirement, and that e.g. DSB’s call tone of three tones cannot be considered protected ”(see reference below) . The signal consists of the tones D, Es and B. But in the Oister case it was concluded by the court that three identical tones may well meet the requirement of originality. It can well go and have quite violent consequences.

What can we conclude?

The requirement for originality and thus protection against imitation seems to be very mild. Thus, even if two different artists use the same sample packs for a given production, they will be protected works. This is despite the fact that an enormous amount of music is published that can easily sound the same.

Against this background, the infringement requirements, even if one does not sample, will be easier to meet, as an identity experience is more likely. Fulfillment of the forgery requirement will be easier for the plaintiff to prove.

Since the requirement for identity experience and imitation is already met by sound sampling, it will be limited to single notes, trivial chord sequences and drum rhythms – as long as you do not take over something that is in itself protected.

Cliffhanger

However, there is a section in the Copyright Act (§ 66) which violates the above systematics. It deals specifically with sound recordings, and it has been interpreted differently in the countries that have the largest electronic music scene. Read in PART 3.

(Read “PART 3 of 3 – CAN SAMPLING BE JUSTIFIED?” Here)

References

1) Scientific study from Helsinki University:  Brattico, Elvira; Tervaniemi, Mari; Näätänen, Risto; Peretz, Isabelle (2006) – Musical scale properties are
automatically processed in the human auditory cortex, Brain Research 1117 (1): 162–74.
doi: 10.1016 / j.brainres.2006.08.023. PMID 16963000.

2) Musikvidenskabelig teori om simplicitet: Percino, Gamaliel; Klimek, Peter; Thurner, Stefan – Instrumentational Complexity of Music Genres and Why Simplicity Sells, Section for Science of Complex Systems, CEMSIIS, Medical University of Vienna, Austria, 2. Santa Fe Institute, Santa Fe, New Mexico, United States of America, 3. IIASA, Laxenburg, Austria.

3) About DSB’s call signal etc. Rosenmeier, Morten – Copyright protection of musical works: compositions, arrangements, the issue of  infringement, 1st edition, 1st edition, Jurist- og Økonomforbundet, 1996.

Related Articles

Responses

Din e-mailadresse vil ikke blive publiceret. Krævede felter er markeret med *

This site uses Akismet to reduce spam. Learn how your comment data is processed.