Sound sampling or music sampling is a currently widely used technique whereby sound fragments are copied electronically to use them, often in modified form, in a new (musical) work, usually with the help of a computer. However, sound fragments may be subject to various rights, as a result of which unauthorized sampling may be unlawful.
Sampling makes use of existing sound fragments. The composition, lyrics, performance and recording of these sound fragments may be subject to copyright. The composition and lyrics can be protected by copyright. The (recording of the) performance can be protected by the performer’s related right, and the phonogram (the recording) can be protected by the related right of the phonogram producer. Article 2 of the EU Copyright Directive (2001/29) grants the author, the performer, and the phonogram producer an exclusive right of reproduction, which comes down to the right to authorize or prohibit reproductions of the protected ‘object.’ The author can be the composer and/or author of the lyrics, singers and/or musicians are usually the performing artist (Article 1 under a of the Neighbouring Rights Act (NRA)) and the phonogram producer is the person who makes the first recording, or has it made and bears the financial risk (Article 1 under d of the NRA). When an artist writes, performs, records, and releases his own songs under his own management, these different parties are united in one person. The copyright and accompanying rights are then in the hands of one person.
In the Netherlands, the Copyright Directive has been implemented in the Copyright Act (CA) and the NRA, among other things. Section 1 of the CA protects the author’s reproduction right. The Copyright Act uses the term ‘reproduction’ rather than ‘copying’, but in practice, both terms are similar. The reproduction right of the performing artist and the phonogram producer is protected by Sections 2 and 6, respectively, of the NRA. Like the Copyright Directive, these provisions do not define what constitutes a (full or partial) reproduction. By way of illustration: Section 13 of the Copyright Act provides that ”any complete or partial processing or imitation in an altered form” constitutes a reproduction. So a reproduction includes more than a 1-on-1 copy, but it is unclear which criterion should be used to assess borderline cases. This lack of clarity has had an impact on the practice of sound sampling for a long time. The sampled artists did not know when their rights were being infringed.
In 2019, the Court of Justice of the European Union (CJEU) clarified this in part in the Pelham judgment, following preliminary questions raised by the German Bundesgerichtshof (BGH) (CJEU 29 July 2019, C-476/17, ECLI:EU:C:2019:624). The CJEU found, inter alia, that a sample can be a reproduction of a phonogram, regardless of the length of the sample (para. 29). Therefore, a one second sample may also constitute an infringement. In addition, it was ruled that ”where, in the exercise of his freedom of expression, a user transcribes a sound fragment from a phonogram for use in a new work, in an altered form which is unrecognizable to the ear, such use should be deemed not to constitute a ‘reproduction’ within the meaning of Article 2(c) of Directive 2001/29′ (paragraph 31, operative part under 1). Therefore, if a sample has been edited in such a way that the sound fragment originally taken over is no longer recognizable to the ear, there is no question of a reproduction of a phonogram. In that case, permission for sound sampling from the relevant rightsholders is not necessary. After a referral back from the CJEU, the BGH ruled on 30 April 2020 in Metall auf Metall IV, in which it specified the ear for which the sample must be unrecognizable: the ear of the average music listener (BGH 30 April 2020, I ZR 115/16 (Metall auf Metall IV), para. 29). Although the judgments of the ECJ and the BGH concern the related right of the phonogram producer, it is plausible that the criteria formulated in these judgments also apply to an infringement by sound sampling of the performer’s copyright and related right. The copyright and the related rights of the performer do have a higher protection threshold so that an appeal to the related right of the phonogram producer will, in principle, be more successful in the event of an alleged infringement by sound sampling. For copyright protection, for instance, a sound fragment must qualify as an ‘own intellectual creation’. There is no such protection requirement for the neighbouring rights protection of the phonogram producer.
In principle, it is, therefore, an infringement of the reproduction right if someone samples a sound in a way that is recognizable to the average music listener. However, Article 5 of the Copyright Directive contains several limitations and exceptions to the reproduction right in Article 2 of the Copyright Directive, including a quote exception and an exception for parody. Sound sampling in a normal commercial context will usually not be covered by this, in view of the strict legal requirements.
Someone who finds himself in a situation where his sound fragments are sampled should therefore ask himself the following question:
- Does the person sampling have permission to do so from the relevant rights holders?
- Has the sample been edited to make it unrecognizable to the average music listener?
- Does the sample fall under any of the exceptions or limitations?
In the event of an alleged infringement, action may be taken in the following ways:
- Send a summons letter to cease the infringement.
- A logical first step if you want the infringement to stop as soon as possible. Especially if you are not looking for damages but just want the infringement to stop.
- Negotiate with the alleged infringer to clear the sample.
- It may be the case that the alleged infringer did not intentionally, or at least without thinking twice, infringe someone’s rights. In that case, the alleged infringer can be sued and made clear that infringement has occurred. From there, the conditions can be negotiated for granting permission by the rights holder to sample. For example, attribution, appropriate remuneration, or royalties may be demanded by the rights holder. This process of granting and obtaining permission to sample is also called clearance. In the normal course of events, this process occurs before any infringement occurs.
- Initiating a civil action in court against the alleged infringer.
- A claim may be submitted to the court based on an infringement of copyright or related rights. For instance, it may be claimed that the other party has acted unlawfully by infringing (Article 3:302 of the Dutch Civil Code), damages may be claimed (Article 27 of the CA, Article 16 paragraph 1 of the NRA) and a profit may be handed over (Article 27a of the CA, Article 16 paragraph 2 of the NRA).
Law & More will be pleased to assist you with the drafting of a demand letter, the negotiations with the alleged infringer and/or the initiation of legal proceedings.