REMIXING CREATIVITY: MUSIC SAMPLING AND THE NIGERIAN COPYRIGHT ACT

I once heard a popular Nigerian recording artiste perform a song titled the name of a popular suburb in Lagos, I couldn’t help but notice that the background beats had been lifted from an earlier song in the 2007 album of a Barbadian R&B singer titled “Good Girl Gone Bad”.

The current state of our musical culture has encouraged and facilitated (music) sampling; sampling is the incorporation of a piece of recorded music (“a sample”) into a new recording. This process offers infinite possibilities for remixing the original work and “looping” which is a technique whereby a single sample is repeated continuously over an extended period of time. At other times, the sample may be of vocals and or lyrics of the original musical recording. Sampling of pre-existing musical recordings usually offers the sampling artiste (and or music producers) with significant cost benefits as the need for engaging the services of musicians for the live performances is drastically reduced.

As musical recordings are protected under the Nigerian Copyright Act of Nigeria (Cap. 68, LFN 1990) In particular section 1 of this Act grants protection to both “musical works” and “sound recordings”, so sampling artistes run the risk of committing copyright infringement by breaching the exclusive rights granted under this Act to the “first author” of the original music recording. With respect to musical works, the rights contemplated are enumerated under Section 5 (1) (a); while the rights potentially implicated in sound recordings have also been listed in Section 6 of this Act.

The legal test (usually applied in Common Law jurisdictions of both the UK and US) for determining whether the use of a sample infringes the copyright in a work begins with the question of whether the sample constitutes a substantial part of the original music recording. A double pronged question arises from this inquiry and must be answered consecutively and affirmatively before a legal claim founded on music sampling is bound to succeed in a law court. The first question asks the question whether the original work is actually protected under the Copyright Act and the second question concludes by asking whether the sample constitute a substantial part of the original work.

Traditionally, common law courts have looked at a number of factors in determining whether a substantial lifting has occurred. Among the factors are whether an ordinary lay listener would find a substantial similarity between the pre-existing recording and the new work, the intention of the sampling artiste and whether or not the two parties are in competition. Though as clear cut as these factors may seem, this test is usually far from clear cut and straight forward and the question of whether copyright infringement has occurred by virtue of sampling will depend very much on the facts and merits of each individual case.

In the English case of BBC v Precord Ltd (SRIS C/89/91 11 November 1991 Chancery Division), the court injuncted the defendants from releasing a recording which had sampled 63 words from the plaintiff’s unedited version of its recording. According to the court, BBC had a property right in the sound recording and was entitled to protection unless special circumstances are shown. This decision was also reinforced by a latter decision where the court held in Produce Records Limited v BMG Entertainment International UK and Ireland Limited (1999) that sampling sound recordings without the necessary clearance was prima-facie infringement. This case arose out of the decision of the plaintiff Produce Records to enforce their right in a song titled “Higher and Higher” which was produced by them and which a seven-and-half-second section had been incorporated in the song “Macarena” produced by the defendant BMG.

Irrespective of sampling and the risk of committing copyright infringement, the Copyright Act also provides some sort of safe haven for sampling artistes, as the limits of the exclusive rights granted by this Act is curtailed by the doctrine of fair dealing/fair practice specified under the second schedule of this Act. This doctrine allows someone (including a sampling artiste and music producers) to use a work in a reasonable manner without the need to seek the permission of the owner. The conditions necessitating this fair dealing have been specified under the second schedule of the Act. In particular (a) provides:
the doing of any of the acts mentioned in the said section 5 by way of fair dealing [emphasis mine] for purposes of research, private use, criticism or review or the reporting of current events, subject to the condition that, if the use is public, it shall be accompanied by an acknowledgment of the title of the work and its authorship, except where the work is incidentally included in a broadcast;
(b) also provides:
doing of any of the aforesaid acts by way of parody, pastiche, or caricature
Hence, it means if any of these conditions is met as specified under these provisions then the sampled music would definitely come within the ambit of the protection offered under the fair dealing/fair use doctrine.

In a US case, a New York Federal court upheld this doctrine by dismissing a claim instituted against American Rap artistes Ghostface Killar, Raekwon (both of the Wu-Tang clan fame) and the Alchemist for copyright infringement. The plaintiffs in this case had accused the rappers of infringement in the song “What a wonderful world”. The rappers successfully argued that while the song’s lyrics where adapted from this song, they were protected as fair use under the US Copyright Act. According to the court, the lyrics were clearly a parody, intended to criticize and ridicule the cheerful perspective of the original song.

Despite the existence of the substantial use test and the fair dealing/fair use defense, the best way for sampling artistes to avoid litigation and liability under the Act is to obtain clearance from the original owner of the musical recording or the relevant collective management organization.

Victoroff (1996) is of the opinion that sampling is:
At its best sampling benefits society by creating a valuable new contribution to modern music literature. At its worst, sampling is vandalization and stealing...
I find it so so difficult to arrive at a divergent view, now it seems my case is well rested.


PS: Has anyone heard the theme song for the 2010 World cup in South- Africa. The Nigerian version contains “sampled” portions of the original song performed by Somalian Artiste K’aan. Nigeria’s Banky W and M.I’s vocal performance was awesome.