Music sampling: Creativity or outright copyright infringement?

Kenyan music and music in general has transformed and crossed numerous borders. From zilizopendwa, to genge, kapuka to gengetone, to where we are now, what were once melodic pieces shared among small communities have now become worldwide tunes capable of being shared and heard all around the globe. And with that comes a few legal challenges as well as opportunities.    

Ever listened to a song and it oddly reminded you of another song you heard of much earlier in life or elsewhere? No, it’s not déjà vu and it’s not a remix to the song that the artiste has done with other collaborators, either. Rather, it’s a small (or substantial) piece of the song, whether in melody or lyric, that an artiste has ‘borrowed’ and neatly ‘tucked’ into their song.

This is commonly referred to as music sampling — and remains to be a major reason why some Kenyan songs sound substantially similar in either beat, melody or lyric to other songs you might have previously heard.

ART OF SAMPLING

Music sampling, or simply sampling, involves taking already existing sound recordings and incorporating them into a new musical composition. One may choose to sample a few portions, ranging from the music notes, beats, melody to even the lyrics.

While this article is not meant to bash the Kenyan music industry (especially the gospel scene), it would be remiss to not call a spade a spade. However, to be fair, sampling is something as common as memes in the 21st century. Numerous artistes and creatives, from regional to international artistes, have been guilty of doing this under the guise of ‘inspiration’ or ‘paying tribute/homage’ to the owner of the original work. However, a common misconception among humans is that if everyone is doing an illegal act, then that act ceases to become illegal. Quite wrong.

Some artistes have had to find out the hard way that some copyright owners prefer to be paid royalties and licensing fees, as opposed to tribute and homage. A fairly recent and familiar case (to millennials) is the infamous ‘Blurred Lines’ case, which saw a court hand out a record $5.3 million payout for copyright infringement. In 2015, a court in Los Angeles ordered Robin Thicke and Pharrell Williams to pay Marvin Gaye’s estate damages for music copyright infringement. Gaye’s estate had sued the artistes because parts of their song ‘Blurred Lines’ were identical to Marvin Gaye’s 1977 hit ‘Gotta Give It Up’.

Despite no landmark litigation in Kenya involving copyright infringement through music sampling, numerous allegations have surfaced over the years. In the early weeks of September 2018, ‘gospel’ singer Willy Paul, in collaboration with Khaligraph Jones, released their song titled ‘Bora Uhai’. A few weeks later, rappers Gorilla and Sadatt accused the pair of plagiarising their song with a similar title that they released back in July of the same year, claiming that the hook from the ‘gospel’ singer’s version was substantively similar to the hook of their own song. By the time of penning this article, no legal action had been taken by either party.

Also, weeks after releasing the same song, the duo of Willy Paul and Khaligraph found themselves battling another allegation of music copyright infringement. This time, the duo was accused by an upcoming group by the name of Freelancers. The group alleged that Willy Paul sampled the same song, including the title and beats. Again, no legal action has been taken by either party in this case.

SAMPLING AND COPYRIGHTS

Whatever amount of (unauthorised) use of someone else’s copyrighted material simply amounts to copyright violation. Sampling without permission violates two copyrights: the sound recording copyright (usually owned by the record company) and the copyright in the song itself (usually owned by the songwriter or the publishing company).

The owner of the original creation only needs to prove that he has a valid ownership of the said work and that the sampler’s work is substantially similar to his original work. Neither of these would be hard to prove.

Under copyright laws, any original expression of a work automatically qualifies as a copyrightable work and vests exclusive rights and ownership to its creator once the creator brings it to life (that is, transfer it from an intangible idea into a tangible expression). Thus, the need for registration of that work, although preferred, is not a necessity for the protection of its copyright. In the Kenyan jurisdiction, Section 22(5) of the Copyright Act makes provision for this.

However, since most copyrights do not extend beyond territorial borders (depending on the laws between specific countries), one’s material is under more protection once registered. Despite some countries automatically extending their copyright laws to other countries and the existence of some regional and international intellectual property-related treaties and conventions, one would in some instances be required to have their copyrights registered in the different countries they want to enforce their copyrights on.

HOW TO SAMPLE LEGALLY

So how does one legally sample a song without having a copyright infringement lawsuit thrown in their face? Simple, by saying Please and Thank you.

• Please – Obtain permission from the owner of the copyright.
• Thank you – Pay the owner of the original material for a licence to use the copyrighted work.

Permission usually comes in the form of a licence or written permission given by the owner of the copyrighted material. Of course, verbal permission would be enough, but a written down agreement would serve as better insurance in case of any change in mental disposition by the owner.

Another way to avoid copyright infringement litigation would be to avoid commercially releasing one’s music. If one creates work that is the subject of an alleged copyright infringement and only plays it for themselves (preferably in the shower) or to their friends and family and pets, without commercially profiting from it, they would be absolved of any copyright infringement lawsuit. History has proved time and time again that the more commercially successful one’s work is, the more the likelihood of facing a lawsuit if there is any copyright infringement.

WAY FORWARD?

In conclusion, yes, music sampling embodies a form of creativity, but it also embodies a form of copyright infringement as well. It is high time creatives and artistes started standing up and fighting for their intellectual property. If you believe your work has been infringed on, then the law provides a way of redress and enforcing your rights other than posting a tweet. It is also high time that creatives and artistes become more creative and produce more original work. No pressure, though. Certainly, no pressure.

Allan Tuli is an Advocate of the High Court of Kenya with an interest in Technology and the Law, Intellectual property and Privacy laws. He currently resides and works in Boston, Massachusetts

Edited by Tom Jalio