In the Copyright Act of Nepal, there is no mention or use of the word sample or sampling. However, Section 3 of the Act does provide protection to derivative works. Derivative works are defined as transformation or adaptation of the existing works bearing features of originality, creativity and individuality

Sometimes when we listen to a new song for the first time on the radio or on YouTube, Spotify or any music streaming media, we feel like we have heard that song before. Something about the song feels vaguely familiar, maybe the bass line or the melody or a short phrase that was used in some other song’s lyrics.

That is what sampling means in simple words.

Over the last few years, this practice of sampling has become very common, most of the electronic music producers or hip-hop artistes base their music on various samples. It’s common, but is it legal to do so? Before we jump into the legalities of sampling, we must try and understand what sampling, or a sample, is. A sample is a small part of a sound recording.

This small segment is often a song you recognise with melody, harmony or lyrics.

It’s also the collection of sounds around that, the way your composition sounds different from some other versions of the song.

Sampling is based on an old idea of taking something thathas already previously existed and using it as a way of honouring it. It was mostly common in the hip-hop culture. Sampling was considered a good tradition early on in the hiphop scene, but eventually it became a form of copyright infringement.

So how is music and copyright interrelated? Copyright is a protection granted to your original workas a creator. This copyright protection is automatic, and you don’t necessarily have to register it, but a formal registration will help you in the long run. Always remember that copyright does not protect the idea, it only protects the expression of an idea.

One thing to remember as a musician is that the ownership of the copyright of your song can vary based on different situations. If you are involved in production as well as composition, you own all the rights of the song. However, if you are working with a record label or if there is more than one individual involved in the entire production, copyright ownership can get complicated. Therefore, in such a scenario, the best practice is to enter into an agreement to make sure everyone’s intention is agreed upon and clearly specified in writing.

When you create music, each aspect of your work can be protected under various heads of copyright.

The most common division of copyright in case of samplingcomes under two heads: composition copyright and sound recording copyright. Composition copyright consists of everything involved in pre-studio production that means the underlying music composition: the arrangement of the notes,- chords, melody in a specific order and lyrics. Sound recording copyright includes everything in the composition copyright along with studio production outputs like bass line, music track and sound waves.

So, if you are a lyricist, and somebody copies a line or a catching phrase from your lyrics, they are violating the lyrical aspect of your copyright. However, if somebody is sampling a few seconds from your chorus, they will be violating both the composition copyright as well as sound recording. As the chorus is considered to be one of most important segments of your song, even if the use is transformative, it will most likely be considered as copyright infringement.

One of the oldest cases of copyright litigation based on sampling is the Biz Markie Case. Gilbert O’ Sullivan sued Biz Markie over the “Alone Again” sample.

He stated that Biz Markie had copied the underlying beat, the chord progression as well as sampled a part of the sound recording without permission. The judge in this case gave a straightforward decision and held “Thou shall not steal”.

Even though chord progression is not a copyrightable subject matter, the other aspects of the sample were not transformative enough and were found to be a copy of the chorus, which is an important segment of a song. Biz Markie was found guilty and was ordered to pay US$250,000 in damages and had to remove all the uses of those samples from his music.

Does that mean you can’t sample music? No, this does not mean that you cannot sample music. You can, if you obtain prior approval from the artiste or if your use falls under the fair use domain. However, if you plan to use a sample and base it on the fair use exception, make sure your use falls within the exceptions granted by the law itself or the sample is used in a transformative way, which does not confuse an average consumer of imperfect recollection.

Every country has a different take on the legality of sampling. In the US alone, there is a controversy between the decisions laid down by the courts of the 9th Circuit (Los Angeles) and the 6th Circuit (Nashville).

The 6th Circuit is intolerant towards sampling and considers it as infringement.

However, the 9th Circuit is very flexible in this regard.

In the Copyright Act of Nepal, there is no mention or use of the word sample or sampling. However, Section 3 of the Act does provide protection to derivative works. Derivative works are defined as transformation or adaptation of the existing works bearing features of originality, creativity and individuality. Authors of derivative works need to obtain the consent of the author of the original work. If the element of creativity is present in a sample, it can be termed as a derivate work, however, credit must be given to the original author, and the original track must be cited.

To conclude, sampling is copying from a sound recording.

Sampling without permission can infringe copyright. So, whenever you are sampling, make sure you obtain all the necessary approvals/licenses or know your fair use exceptions really well. If this is difficult for you to do, you can always contact a legal professional, and they’ll help you out!

A version of this article appears in print on November 04, 2020 of The Himalayan Times.

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