When someone creates a piece of music (or a piece of text, a graphic, a photo, a film or anything else that is protected under copyright laws), a whole system of legal rights and obligations comes into play. These rights and obligations outline what someone can and can't do with the material.
Who owns the copyright in a piece of music?
There is generally more than one owner of copyright in any given musical track. The composer who wrote the music owns copyright in the musical works. The lyricist who wrote the lyrics owns copyright in the literary works. The artist who performed the music owns copyright in a sound recording of their live performance. Finally, the maker of the recording (typically a record company) owns copyright in the sound recording.
What rights do the copyright owners have?
The copyright owners (the owner of the musical work and the owner of the sound recording respectively) have a number of exclusive rights, including the right to:
- Make copies of the tracks;
- Adapt or change the work;
- Perform the music in public; and
- Communicate the tracks to the public.
Are there any exceptions to copyright protection?
There are limited exceptions to copyright that allow you to use other people’s work without their permission. For example, you can copy or use other people’s work without infringing copyright if you own a legitimate copy of a song and copy it for your own private and domestic use (e.g., copying a CD onto your computer or digital music player). However, this does not extend to using the song as a sample, even if you acquired the music legitimately.
Sampling involves the use of a portion of a sound recording (and the underlying music/lyrics) by another artist or DJ to create a remix or other derivative work. For example, if a hip hop artist uses a couple of beats or sounds of a soul classic to create a beat that is looped throughout the hip hop song, he or she has “sampled” the soul artist’s song.
I want to sample another artist’s song. Do I need any licences?
Yes, in order to sample someone else’s song, you need permission from both the owner of the sound recording copyright (typically a record company or artist) and the musical work copyright (typically a music publisher or songwriter). As a practical guide, you should:
- contact the licensing department of the relevant record company to obtain permission for the use of the sound recording; and
- contact the licensing department of the relevant music publisher to obtain permission for use of the musical work.
What if I am only using a very small part of someone else’s music?
You will need permission to use someone else’s music if it is a “substantial” part of their work. This does not necessarily mean that you only need permission if you are using a large part of their music – a “substantial” part refers to anything that is distinctive or essential to the work. So if the section of the work you want to use is recognisable you will require permission to sample it, irrespective of how small or large it is. You should keep in mind that the section of the work you want to use may only be recognisable by the artist who originally recorded it, and this is enough to satisfy what is considered “substantial”.
I bought a legitimate CD. Can I sample the songs from the CD?
No. The purchase of a CD only gives you the right to own the physical disc, to play it privately, and to pass on the same physical disc to another person. The Copyright Act allows you to “format shift” music for personal use, for example, to copy your personal CD into MP3 format in certain limited situations. However, this does not extend to use of the music as a sample or to adapt the songs.
Can I download music from the internet and use it as a sample?
The basic principle is that you cannot copy or distribute music including from the internet without the permission of all relevant copyright owners, even if the music is legally purchased. There are a number of legitimate download sites in Australia which can be found at www.pro-music.org
If you legitimately buy music from iTunes or other legal online distributors you should check their relevant terms and conditions to make sure that you are licensed for the relevant purpose, including for use of the music as a sample. However, you still must obtain licences from the copyright owners to sample the legally purchased music.
What about downloading music through file sharing?
Unless authorised, the vast bulk of P2P 'file sharing' is considered unauthorised copying and transmission of copyright material. This activity hurts sales of music and the livelihoods of people in the business including your favourite artists and songwriters.
I am a music producer who has been commissioned by an artist to record songs. Can I be held liable for copyright infringement if sampled music is used without permission?
If you are a producer who has been asked to sample songs in the tracks you are recording, it is best to ensure that copyright clearances have been obtained before including the music in the recordings.
What are the consequences?
Penalties for copyright infringement range from injunctions, damages and costs through to fines of up to $60,500 for individuals and up to $302,500 for corporations for each infringement and/or up to 5 years imprisonment per offence. Police can also issue on-the-spot fines of $1320 per offence and seize any pirate product.
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