The story:
Shawn Carter (better known by his stage name Jay-Z) is currently in
dispute with the record label TuffAmerica. TuffAmerica has alleged that Jay-Zinfringed their copyright by sampling a part of the song Hook and Slingwithout their permission. The sample was used in Jay-Z’s 2009 single Run This Town.The dispute has been ongoing since 2013, but a recent study of the court documents by the website Techdirt shows that the dispute is unlike any ordinary infringement allegation made against a celebrity so far. The alleged infringement is based on the sampling of, not a phrase or a hook, but of asingle syllable word: “Oh”. To make matters even more interesting the sample was used only once in the entirety of the 2009 song.
The legal issue:
Before dwelling too much into the nitty gritty of the legal issues, it shouldbe mentioned that the case was filed in the United States, which means thatwhile the decision will undoubtedly be very persuasive in the UK, Englishcourts are not bound to follow it.
As the law stands in the UK, per section 16(3)(a) of the Copyright
Designs and Patents act 1988, copyright is infringed when the whole or substantial part of the work is used in a way that is restricted by copyright (such as sampling). A similar provision exists within the United States. Thekey word to focus on here is “substantial”.
Legislation is silent on whatconstitutes a “substantial”, so it is up to the courts to decide this.Ostensibly it may be difficult to see how exactly a single syllable word used once in a song can be considered a substantial part of it. However,English precedent shows us that the test for “substantial” is qualitative as opposed to quantitative (see Ladbroke (Football) Ltd. v. William Hill (Football)
Ltd. [1964] 1 W.L.R).
What this means is that it doesn’t matter how much of
the song the sampling covers, but rather whether the sample takes the crux of the song. Applying this to the present case, it’s difficult to see how under the current law the word “Oh” can constitute the substantive nature of Hook and Sling.
What does this mean?
If the court rules in favor of the complainants by finding an infringement,the decision may open the proverbial floodgates. Precedent would be set widening the boundaries of what can be interpreted as the “substantial” part of a copyrighted piece of work. Sampling would effectively become a thing of the past.
What would be especially interesting is to see how the courts react to
situations where a traditional artist takes a riff from another song and changes it slightly. While you can argue sampling often involves a literal copy paste of parts of the song, and in traditional music the artist needs a bit of skill to identify the notes and change it slightly, it would set a double standard if thecourts decided to differentiate too much between the situations.
Sources:
http://www.theguardian.com/music/2014/sep/17/jay-z-fights-lawsuit-over-sample-of-the-word-oh-in-run-this-town
https://www.techdirt.com/articles/20140911/09383528493/jay-z-steps-up-to-plate-to-argue-that-tiny-music-samples-are-unprotected-copyright.shtml?
curator=MediaREDEF
http://www.independent.co.uk/arts-entertainment/music/news/jay-z-fights-lawsuit-over-run-this-town-vowel-sample-9741550.html::
