Inspiration or stealing? The requirements for interpolation and sampling.
In a previous blog post, the concepts of the doctrine of fair dealing and the doctrine of fair use were explained. Essentially, they concern the legal use of another’s intellectual property without infringing on the owner’s commercial or the creator’s moral rights in said property. However, what if, in crafting a song – which one intends to commercialise – one copies a portion of another’s music or sound-recording? That, unfortunately, would not qualify as fair use nor fair dealing. So, how then do renowned artists such as Ariana Grande avoid copyright infringement in songs like (2024) yes, and?; and (2019) 7 rings?
The simple answer is by coming to an agreement and accrediting the owner of the exclusive rights to that work. For instance, Ariana Grande’s 7 rings borrows extensively from the musical work of (1959) My Favorite Things. Thus, in order to avoid infringement of Hammerstein’s and Rodgers’ exclusive rights over the music, her label came to an agreement with and accredited Hammerstein and Rodgers in the making of 7 rings.
In borrowing from the music of My Favorite Things, Ariana Grande interpolated its music by transforming it into her own song. This is different from the somewhat more well-known concept of sampling, which is the adaptation of a sound recording.
To appreciate this distinction, the Copyright Act No.98 of 1978 (‘Copyright Act’) defines a ‘musical work’ as ‘work consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music’, and it separately defines a ‘sound recording’ as ‘any fixation or storage of sounds, or data or signals representing sounds, capable of being reproduced, but does not include a soundtrack associated with a cinematograph film’. Therefore, a musical work is the music including its aspects of harmony, melody, rhythm, and so forth, while a sound recording is the specific audio or digital recording such as the track as it appears in an album.
With musical work distinguished from sound recording, sampling is further complicated by the separate copyrights over the differentiated works. For sampling, in order to avoid a direct infringement – by adapting a ‘substantial part’ of the original in terms of section 23(1) of the Copyright Act – one would need a licence, usually a non-exclusive licence, from both the copyright holder of the musical work and sound recording. In South Africa, when you want to interpolate or sample and so need a licence, there is a central entity one often needs to approach called a collecting society. The collecting society that primarily deals with musical works is the Southern African Music Rights Organisation (‘SAMRO’), while the South African Music Performance Rights Association (‘SAMPRA’) primarily concerns itself with sound recordings. Although the Dramatic, Artistic and Literary Rights Organisation (‘DALRO’) has some overlap with SAMRO. With its international agreements, SAMRO serves as the link between South African artists amongst themselves, and between them and artists from around the globe.
Of course, if one wanted to risk a lawsuit, they could forgo acquiring a licence and instead attempt to use a work as inspiration. In South Africa, the distinction between stealing from and being inspired by rest on the interpretation of the phrase ‘substantial part. In addition, according to Streicher JA in Haupt t/a Soft Copy v Brewers Marketing Intelligence (Pty) Ltd 2006 (4) SA 458 (SCA), what constitutes a ‘substantial part’ rests on the quality of the part and not merely the duration in relation to the full original work.
Until the contrary is raised, (2024) yes, and? is merely inspired by Madonna’s iconic (1990) Vogue. Nevertheless, it is advisable to avoid the risk of a crippling lawsuit by rather acquiring the necessary licence to produce one’s next musical work or sound recording.
Bibliography
Copyright Act No.98 of 1978.
Dean, O. & Dyer, A. (eds.). 2014. Introduction to Intellectual Property Law. Cape Town, South Africa: Oxford University Press Southern Africa. Available at: https://search-ebscohostcom.ez.sun.ac.za/login.aspx?direct=true&db=nlebk&AN=1104467&site=ehost-live&scope=site [2024, February 20].
Grande, A. 2019. ‘7 rings’, on Thank U, Next [CD]. New York: Republic.
Grande, A. 2024. yes, and? [Online]. Available: https://open.spotify.com/intl-de/track/7gaA3wERFkFkgivjwbSvkG?si=671681334f0a46ea [2024, February 20].
Hammerstein & Rodgers. 1959. My Favorite Things. New York: Williamson Music.
Haupt t/a Soft Copy v Brewers Marketing Intelligence (Pty) Ltd 2006 (4) SA 458 (SCA).
Jacobsberg, I. 2019. Paying royalties to play music in public- but to whom do you pay the dues? [Online]. Available: https://www.fasa.co.za/paying-royalties-to-play-music-in-public-but-to-whom-do-you-pay-the-dues/ [2024, February 20].
Madonna. 1990. ‘Vogue’, on I’m Breathless [CD]. Los Angeles: Warner Bros. Records.
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