Music sampling, the process of cutting and inserting part of an older recording into a new one, is a common but controversial practice in the music industry. Young artists without recording equipment of their own, and even big recording studios looking to save time, can easily sample a clip to place in their new song. While some artists obtain licenses for their samples, many do not, much to the ire of copyright holders. Today’s music industry, like many others, uses fragments of earlier works to create new interesting sounds and songs. Without this ability, many music producers would not be able to create what they see as their vision. Although through this process of nearly surgical level dissection and then replacement of certain sounds, copyright ownership challenges can arise. Music producers may sample for a number of reasons such as lower production costs, using well-known sounds or cords to gain recognition with the audience, or just for an appealing addition to their composition. Many artists, notably hip-hop, electronic, and pop musicians, use small snippets from other songs in the song they’re producing. Kanye West is one of the most prominent producers in the industry that frequently uses older interesting songs as hooks in his music. For example, the song “Famous” by Kanye West featuring Rihanna has three unique samples, give it a listen and see if you can pick out the samples. Digital sampling has been described as the conversion of analogue sound waves into a digital code. The digital code that describes the sampled music can be reused, manipulated or combined with other digitalised or recorded sounds using a machine with digital data processing capabilities, such as a computer synthesiser.

MUSIC AND COPYRIGHT ACT

The exclusive rights of copyright holders are found in Chapter III of the Indian Copyright Act, 1957. One of these rights is to protect the musical recordings. Music copyright gives producers exclusive legal ownership of musical works and recordings. This property includes the exclusive right to distribute and reproduce the work and the license right to enable the copyright owner to obtain royalties. There are two types of music copyright: master and composition. When music or text is recorded, placed on paper or otherwise recorded in a document, the work’s copyright is automatically created. Music work is defined under sec 2 (p) of the copyright act of 1957 and includes works composed of music and containing graphic symbols. Though there is no legal provision explicitly dealing with a sampling of sound recording in the Indian Copyright Act, 1957 Section 14 provides the owner of copyright certain exclusive rights in order to protect their entire work or a substantial part of the work. The owner of musical work, by virtue of Section 14(a) of the Copyright Act, 1957, has exclusive right to make any adaptation of the work. Adaptation under Indian copyright Law is analogous to Section 106(2) of US Copyright Law, derivative work. Adaptation involves the making of new work from pre-existing work. Transcription of musical work or any act involving re-arrangement or alteration of existing work will infringe the copyright holder’s exclusive right to make any adaptive work.

DOCTRINE OF DE MINIMIS

The term De Minimis has been derived from the legal maxim ‘De Minimis Non-Curat Lex’ which means that ‘the law does not concern itself with trifles. The concept, in very simple terms, stands for the principle that some matters of infringement are so insignificant that they are not worth judicial scrutiny. Accordingly, when the supposed ‘infringement’ or ‘copying’ is too trivial or inconsequential, a claim of De Minimis may prove to be useful in defeating such a claim of infringement. The common law concept of De Minimis, which has been regularly applied in countries such as the United States, is now finding mainstream acceptance in India as a valid defence to a claim of copyright infringement. The Indian judiciary’s first tryst with De Minimis came in the case of Super Cassette Industries and Ors. v. Chintamani Rao and Ors. wherein a Single Judge of the Delhi High Court rejected the defence of De Minimis by stating that Indian copyright law lays down specific rights vested in each party while also specifying the exceptions to infringement. Accordingly, since the defence of De Minimis has not been incorporated in the statute, the Single Judge held it cannot constitute a valid defence to an infringement claim under the law. The De Minimis defence is allowed against claims of copyright infringement because a claim requires not only some form of copying but substantial copying.[i] So even when a defendant concedes copying, there are no legal consequences if the copying is not substantial. If the copied amount is trivial or inconsequential, a De Minimis use defeats a claim of infringement.

A successful copyright infringement claim requires proof of two elements:

• ownership of a valid copyright, and
• copying of constituent elements of the work that are original.

The first element is readily satisfied if the copyright is registered with the Indian Copyright Office. With regard to the second element, courts typically examine (1) whether the alleged copier had access to the copyrighted work and (2) whether the works are substantially similar. Since most songs are widely available via the Internet, most cases revolve around whether the works are substantially similar. In music sampling cases, the inquiry largely focuses on how much of the song is used.

JUDICIAL DEVELOPMENT IN DE MINIMIS DOCTRINE

• The High Court of Delhi in India TV Independent News Service (P) Ltd. v. Yashraj Films (P) Ltd.[ii] has held that the use of De Minimis, as applied in other areas of the law, without any modification or without having any marriage of convenience, has three significant advantages in the field of copyright law. Firstly, the fair use concept would be a bad theoretical fit for trivial violations. Secondly, De Minimis analysis is much easier. Thirdly, a De Minimis determination is the least time consuming, and needless to state it is in the interest of the parties as also the society that litigation reaches its destination in the shortest possible time. After all, the factors commonly considered by courts in applying De Minimis are well listed. They are five in number:

1. the size and type of the harm;
2. the cost of adjudication;
3. the purpose of the violated legal obligation;
4. the effect on the legal rights of third parties; and
5. the intent of the wrongdoer.

• Similarly, in 2013, in Saregama India Ltd. v. Viacom 18 Motion Pictures and Ors., the High Court of Calcutta while dealing with a question of copyright infringement in lyrics, wherein four or five words out of a famous Hindi song were rendered by the actor in the film, the Court held that there were no copyright over those four or five words, and that even by assuming that the rendition amounted to copyright infringement of the plaintiff’s lyrics, it had no impact, effect or loss caused to anybody and thus was construed as trivial, minimal and ignored by the court by application of the principle of De Minimis.
• In 2019 the Delhi High Court in Super Cassettes Industries Ltd. v. Shreya Broadcasting Pvt. Ltd, the court relied on the five factors laid down by the divisional bench of the same court in India TV case (discussed above). The court perused the cue sheets submitted by plaintiff, and found that there was atleast 500 minutes of infringement, and hence the defence of De Minimis was not accepted by the court and further compensatory damages were granted in favour of the plaintiff.

INTERPLAY OF COPYRIGHT ACT & DE MINIMIS IN MUSIC SAMPLING

When a court finds actual copying, and that the copying is significant enough to finds that the copying is legally insignificant, the copying is De Minimis and is not actionable. It is clear that copying a single note is always de minimis, but copying small portions of sound recordings may be found substantially similar if qualitatively important enough. Differentiating between copying that is de minimis and copying that is substantially similar is considered one of the most challenging things to determine in copyright law.

The De Minimis defense is allowed against claims of copyright infringement because a claim requires not only some form of copying but substantial copying. If the copied amount is trivial or inconsequential, a De Minimis use defeats a claim of infringement. When a defendant concedes copying, there are no legal consequences if the copying is not substantial. Substantial copying in music refers to how much of the plaintiff’s work was copied, not how much of the defendant’s work is composed of it. So an infringing song composed entirely of one-note taken from the original could still assert a De Minimis defence because only the one note was copied. While the De Minimis defence could help independent artists who wish to sample small portions of prior work, it may not be a feasible tool in remedying the sample licensing because, as the circuit split shows, courts are reluctant to provide a delineated definition of a De Minimis sound recording sample.

CONCLUSION

The concept of De Minimis in India, even though at a nascent stage right now, has surely helped reduce the burden of courts by discouraging frivolous litigations while also protecting bona fide and unsuspecting citizens who may have, without any knowledge or intent, committed an act of copyright infringement. A sampling of songs and other forms of sound recordings has become incredibly prominent within the music industry with no end in sight. As a music producer, it may seem like this is a massive setback for their vision but it is not if the sampling is done within certain parameters. Laws just like music will continue to evolve and change over time as new ideas are brought forth, changes in taste occur, and technology advances. Despite the potential legal consequences, unlicensed sampling has continued. Without a judicial or legislative fix available in the foreseeable future, the music industry itself can still manage the issue. As music technology continues to evolve, the prevalence of sampling will continue to increase as it becomes cheaper, easier and faster, ingraining itself as an industry standard. Just like the principle of “live and let live” music has prevailed and developed over the concept of “sample and let sample”. The Copyright Act does not specifically deal with the concept of music sampling. However, it provides ample provisions for the protection of music. Further, even the Indian courts have spoken in length regarding damages to a plaintiff in cases of infringement. While the safest way out of repercussions for music sampling is obtaining a licence, the Copyright Act has provided certain exceptions like de minimis and fair dealing of copyrighted musical works as a leeway from legality. While it is doubtful the music industry could set any De Minimis standard for music sampling that rights holders would accept, it can create a system for samplers to easily obtain a license or request an artist clear the sample. There are already several licensing systems in place for different types of musical works, and the industry could develop one to obtain a sampling license. While sampling licenses would not have the statutory backing as other licenses, it would provide a way to easily obtain and pay for a recording sample, rather than the current method of finding and negotiating with each artist or record label individually. Rightsholders would still be able to sue samplers who choose not to obtain a license under the current law. With evolving technologies and the increasing prevalence of sampling, an immediate fix is necessary, even if only temporary. By adding sampling licenses to an existing system, the industry can enable artists to legally sample without exorbitant costs or time spent finding rights holders. Unfortunately, it is not a perfect fix, and for those samplers who choose to do so without permission, they risk subjecting themselves to a copyright infringement suit

References:

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[i] 4 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 13.03[A] (2019)

[ii] 2012 SCC OnLine Del 4298