Music sampling and the copyright dilemma

The use of portions of prior recordings into a new composition has stirred controversy with some cases ending up in court. Known as sampling, some artistes have gone beyond lifting lyrics of another’s song to using the exact tune of an original composition.

In the past, “Banjuka” by DNA brought vicious boardroom wars when KCB seemingly used a similar tune for their Bankika account promotion. Even though DNA threatened legal action, proving copyright infringement in such cases may not be straightforward.

But the question remains: can there be a copyright claim in sampling?

An official at the Kenya Copyright Board said it was a clear-cut case:

“When you sample someone's song without permission, it is an instant copyright violation. It is the unauthorised use of copyrighted material owned by another. Sampling without permission violates two copyrights: the sound recording copyright (usually owned by the record company) and the copyright in the song itself (usually owned by the songwriter or the publishing company),” she said.

The official added that for sampling to be legal, there must be permission from both the owner of the sound recording and the copyright owner of the underlying musical work.

The fee for a license to use a sample varies and depends on how much of the sample one intends to use (a quarter second is a minor use; five seconds, a major use), the music to be sampled (a chorus will cost more than an obscure drum beat), and the intended use of the sample in the song (it is more costly to build an entire song around the sample than to give it only minor attention).

“However, most artistes have continued to cry foul after their music is sampled yet their content is not registered at the board. A fee of only Sh1,000 is needed for a content creator to cover their intellectual property rights,” she said.

SAMPLING CONTROVERSY

The most recent sampling controversy involved Willy Paul and Khaligraph Jones after they released their much awaited song "Bora Uhai". A day after its release, Freelancers, a music group, claimed it was similar to their little-known song uploaded on YouTube.

Sifa Akimu, one of Freelancers’ producers, told Buzz: “Willy Paul visited our studio and one of the unreleased songs he listened to was "Bora Uhai" by Freelancers but little did we know he’d sample the exact idea into his new song. We are disappointed since we thought he was supposed to help us up but since we had not copyrighted the song, we leave the whole issue to the public court,” he said. Willy Paul would later in response through a post, threaten to sue them for defamation.

Felix Odiwour alias Jalang’o also recently posted a video calling out Kenyan artistes for not being innovative. He did not spare music producers, naming Produza Paulo as having sampled “Hey Ma” by Claydee and Alex Velea to create “Baraka Zangu” by Rebecca Soki.

However, Produza Paulo was not taking it lying down.

“Yes, I sampled the beat to the song "Hey Ma" but I don’t see a reason for the chinwag. I did my research well and that tune fitted Rebecca’s new release perfectly. As for Claydee and Alex Velea they should express their gratitude to me for introducing them into the African market where they were hardly known,” he said.

STOLEN IDEA

A few days later, gospel artiste M4J, claimed that Rebecca had copied his chorus word for word and used the exact tune of his “Bado Nangoja” song that he had released months earlier. He said his idea was stolen when he played the song to an artiste and a producer, but added he would not take legal action.

Music sampling does not only fall on the side of audio production as in the past different artistes have received hostile reaction for copying video ideas and props.
So who should aggrieved artistes turn to for help?

Music Publishers Association of Kenya, through their Nairobi representative Linda Muthama, distanced themselves from covering sampling claims pointing out that their only job is to collect and disburse revenue to artistes.

Performers Rights Society of Kenya similarly said defending such rights was the work of Kecobo.

Some fans are also not impressed. Vivian Gatiba, for example, thinks music sampling is “a total mess”.

“When you are used to sampling, you’ll never be original and the same is transferred to the other facets of your art. In the end, an artiste’s song performs dismally since no one is interested in seeing the imprint of another artiste that they masquerade as theirs. The aspect of originality is also the reason why most Kenyans will turn to international music since quality is not present in the local music,” she said.