Kandidatafhandling

Summary in English

Throughout history musicians have always had the freedom to use bits and pieces from fellow musicians work without being dragged to court, this goes all the way back to composers like Beethoven, Brahms, and Mahler borrowing themes and phrases from each other. In modern pop/rock music different notes, specific rhythms and chord progression appears in many works, an example is the “4-chord pop song” recipe, which was popularized through The Beatles and since used in hundreds of pop songs.

Sampling is the process of taking a portion (sample) of a sound recording and reuse it as an instrument or a track in your own work. A short sample repeated in a loop is called looping.

In this thesis the issue of musicians sampling other musicians’ works without content is analyzed from a legal and economic point of view. The issue was much debated in Denmark after the district court ruled the Danish band Djuma Soundsystem for infringement of the less known Danish/Turkish jazz musician Atilla Engin’s work “Turkish Showbiz”. This case and other cases from Germany and the United States are analyzed as well.

In chapter 2 the Danish copyright law and the comments behind it are examined and analyzed. A sample of a copyright protected work without permission is not only an infringement of the artists composition rights (§2) it is also an infringement of the sound recording rights (§66). If the original artist is not credited or respected as a result of good practice, it could furthermore be infringement of the authors’ moral rights also known as droit moral (§3).

The big question of originality arises, if the sample does not include enough originality it is not copyright protected as a work, and can therefore be sampled as free use. A very short sample, or a sample which is processed in such a way that the original work cannot be identified, is an example of free use in regards to the composition. The rights regards the sound recording protects all recorded sound regardless of originality or length. The non-statutory principle of de minimis non curat lex – The law does not concern itself with trifles – might be called as a defense.

The exception in the Danish copyright law about musical quotes can only be used in very particular circumstances; it seems a bit unlikely since lots of requirements have to be met.

In chapter 3 compensation and remuneration are examined. The remuneration rule (“vederlagsreglen”) assures a minimum compensation, which should be equal to what a hypothetical license agreement would bring in. Besides this the infringed artist can be compensated for additional damage and for non-economic damage. The problem with hypothetical agreements is, however, that there is no particular practice in the area of sampled music. The involved parties can agree to everything; therefore the compensation and remuneration will often be an estimate.

In chapter 4 and 5 case law is examined. First the Danish district court’s decision about Djuma Soundsystem; which infringed both the owner of the original composition, his droit moral, and the owner of the sound recording. Djuma Soundsystem was ruled to pay compensation around 1 million Danish kroner which seems unreasonably high.

Chapter 5 follows with cases from Germany and USA. These decisions lead to following rules:

1. 
   Regarding musical composition the sample must be so short or insignificant that the average listener would not recognize the original composition.
   
2. 
   Regarding sound recordings, irrespective of whether the sampled recording can be recognized in the new recording or not; get a license or do not sample – is the court’s rule.
   

Chapter 6 is about tradition and history and other legal policy considerations. Ruling out sampling leads to ruling out the historically very important form of creativity that consists by taking existing works and improving it or making it your own. It would make genres such as DJ and hiphop difficult to exist and develop, as they have always been highly dependent on samples. An example of this is the praised hiphop album called “Paul’s Boutique” from the Beastie Boys, it consists of around 150-300 samples. This album would be impossible to create in a legal fashion.

Therefore it must be the copyright law’s task to find a way to reward the author without flatly excluding sampling, but instead provide options to the practical rights-clearing.

Litteratur- & domsregister

Fagbøger

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