27 September 2021

Doja Cat’s 2021 hit song ‘Kiss Me More’ sounds familiar, right? You may or may not have been alive at the time but it’s because its melody comes from the 80’s hit popular song ‘Physical’ by Olivia Newton-John. Does the guitar melody in ‘Lady (Hear Met Tonight)’ by Modjo ring a bell? That melody came from ‘Soup for One’ by 70’s disco group, CHIC. Artists incorporate familiar sounds and melodies by way of music sampling. Sampling is a way for musicians and producers to use a portion of an existing song within a brand-new recording. 

As music is not physically obtainable per se, legal rights exist to protect the owners of songs. More specifically, section 32 of the Copyright Act 1968 (‘the Act’) provides protection to owners of copyright in literary, dramatic, musical, or artistic works. Thus, for songs, copyright exists in several parts. For example, the composer may own copyright in the musical score, the lyricist may own copyright in the literary work, the performer(s) may have rights in the sound recordings produced and the maker of the recording may have rights in the sound recordings. If your favourite artist is gifted (ie. Prince), they might have composed, written and performed the songs they’ve created. That would grant them more ownership in the copyright. If they needed a little more help in their creative process, there may be multiple other copyright owners (ie. The writers, the record company, etc). Whomever the owners are, the Act gives them the exclusive right to copy, change, perform and communicate the song to the public.

Since owners of a song’s copyright have exclusive rights, this means nobody can use their song without permission. If you intend to use a substantial part of a song that is owned by someone else (anything distinct or recognisable), you need to be granted a license from the owners of the copyright. Don’t worry, though. This doesn’t mean you are in trouble if you’ve downloaded songs (legally) and are playing music on your phone or home devices. The protection we are talking about here, is protection for the musicians, artists and producers!

Who remembers singing the song ‘Kookaburra Sings in the Old Gum Tree” when they were little? Two bars from the familiar flute riff in the kid’s song were used in Men at Work’s ‘Down Under’. The 80’s mega-hit went #1 on the charts in Australia, New Zealand, U.K. and the U.S., and became a symbol for Australian culture.  Unfortunately, the flute riff sampled was used without permission and the Federal Court of Australia held it to be an infringement of copyright. Larrakin, the copyright owners of the ‘Kookaburra’ song, were awarded 5% of the ‘Down Under’ profits, around $100,000 (which was not a significant amount of money in the scheme of things).

In the Act, there are exceptions to actions that constitute copyright infringement. These exceptions exist as defences known as ‘fair dealing’. Fair dealing allows a person to use copyrighted work for the purposes of research/study, criticism or review, parodies, and satire, and/or reporting the news. Unfortunately, for Men at Work, none of these exceptions apply. These defences have high standards, so be careful! Before you go out and include a sample from a notorious B.I.G song in your Garageband low-fi bedroom recording, best to contact Biggie’s people.

Sampling issues aren’t just for Australian bands, though.  Fast-forward to 2013. Remember the song ‘Blurred Lines’ by American stars, Robin Thicke and Pharrell Williams, that annoyingly played every 5 minutes on every radio station? A jury awarded Marvin Gaye’s estate $7.4 million, after determining that it copied Gaye’s 1977 hit ‘Got to Give It Up’. The focus was on specific chords and note similarities between the two songs, alluding more to Gaye’s written sheet music, the copyrighted portion. “Blurred Lines’ sold more than 7.5 million copies and made the musicians millions of dollars. It’s too bad they didn’t ask for permission before sampling Gaye’s song. Imagine having to pay a $7.4 million bill!

The basic rule of thumb to avoid trouble is that if you are going to sample a song, get a license from the owners!

Alize Shaffer