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Understanding Sampling, Cover Songs & Derivative Work

Overview

When you are the author of an original work, and you fix that work in a tangible medium (write it down, record it), you are automatically granted six exclusive rights. One of the works that you don't hear about very much is the right to create a "derivative work." It, like all the other rights, is codified in the United States Copyright Act in 17 U.S.C. § 101 :

A "derivative work" is a work based upon one or more pre-existing works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a "derivative work".

Put simply, the only person who can create or grant the rights for a derivative work to be created is the holder of the copyright for the original work.

Translations

When, for instance, The Gypsy Kings decided to do a version of The Eagles' "Hotel California," sung in Spanish (as seen in The Big Lebowski), it was a translation of the original work, and as such, not a cover. Thus, the Gypsy Kings had to get permission from the copyright holder(s) of "Hotel California" in order to create this derivative version of the work. Remember, you can cover any song that has been publicly released without getting anyone's permission so long as you don't make substantive changes to the lyrics or melody, and you abide by the compulsory license requirements (for a refresher on this topic, please see here ).

A translation, however, is deemed to be a substantial change, and therefore a derivative work, which, as an exclusive right of the holder of the copyright, requires permission to be granted.

As you can see from the above, it's not just translations that are deemed derivative works, and require permission from the holder of the copyright. If you, for instance, wanted to create a movie or TV show based on a song, it would be deemed a derivative work.

Samples

However, where I believe derivatives will be relevant to most readers is with respect to sampling.

Sampling is one of the most confusing elements of the music business, but through understanding derivatives it will help you better understand both the rules around samples, and - depending on which side of the fence you're on (sampler or sampled) - the money to be paid/made.

A sample is when you take a piece of an existing copyrighted work and combine it with another work. If you refer back to the language from the Copyright Act regarding derivatives you'll see explicitly where samples and derivatives overlap: "...any other form in which a work may be recast, transformed, or adapted."

Because a sample clearly involves "recast[ing], transform[ing], or adapt[ing]" one work in order to merge it with another work, the copyright holder of the work being recast, transformed, or adapted must grant permission for this to occur. Simply put, because a sample is a derivative work, you cannot sample someone else's copyrighted work without permission.

Note that there are actually often two copyrights that must be addressed when a work is sampled (and thus two copyright holders you must get permission from in order to avoid infringing):

  1. The copyright to the song itself
  2. The copyright to the version of the song (i.e. the master)

For instance, if you want to sample the guitar riff from a Beatles song, you would need to negotiate a deal with the copyright holder to the song (The Beatles' publisher(s)), and negotiate a deal with the copyright holder to the version of the song from the recording from which you are sampling (The Beatles' label). Either party can reject the request and not grant you the right to create a derivative work.

Should they not reject the request outright, they will negotiate with you to attempt to come to terms allowing your creation of a derivative work. Unlike mechanicals there's no statutory maximum rate for samples, so publishers and master holders will get everything they can - including the rights to the copyright of the song that is using their sample - in the negotiations.

A lesser-known approach to sampling is often referred to as a "replay." This is where a derivative work is created and used as part of another work via a re-performance/re-recording of a piece of the original work.

For instance, if an artist, instead of taking the sample of a guitar riff from a Beatles record, played the riff herself and then used that within her own song, she'd create a derivative work of the composition (the song), but not the master; i.e. a "replay." In this situation, the person creating the derivative "replay" would need to negotiate a deal with the copyright holder of the song (i.e. the publisher), but not with the copyright holder of the recording (i.e. the label). Of course, the publisher can reject the request.

If you do not negotiate the rights to create a derivative/sample work with the relevant copyright holder(s), you will be infringing on the exclusive right of the copyright holder(s) to create a derivative work, and you can be sued.

It cuts both ways, of course, should someone want to sample your copyrighted work, he or she will have to negotiate a deal with you in order to do so, or risk you suing them for infringing upon your exclusive right to create derivative works.

A note on the fair use defense of "transformativeness."

The Supreme Court held in Campbell v/ Acuff-Rose Music Inc. (i.e. the "2 Live Crew Case") that while 2 Live Crew's unauthorized use of elements of "Oh, Pretty Woman" (the song popularized by Roy Orbison, and copyrighted by the publisher Acuff-Rose) constituted a derivative work, the infringement was defensible due to fair use, because 2 Live Crew's version provides new insight to listeners, and thus represents socially important commentary (this is very similar to/overlaps with the fair use defense of parody).

This transformativeness fair use defense is likely what Girl Talk will rely on should any of the various copyright holders sue him for infringing upon their exclusive right to create derivative works.

There is no such thing as a "small enough" sample

Don't be confused with respect to misinformation regarding the right to use small amounts of another's copyrighted work in your composition - i.e. a "short" sample - without legal risk. There is no clear standard for what is considered de minimis usage, and thus you are at risk if you misappropriate any copyrighted material and create a derivative work in the form of a sample in your own composition.

Ignorance is not a Defense

Similarly, ignorance is not a defense. If you, create a derivative work without knowing or intending to do so - e.g., you put a riff in your work that is so similar as to be seen as a derivative work of another's copyrighted material, but you didn't know about this prior work - you are still infringing on the copyright holder's exclusive right to create a derivative work. However, if you can show that there was no knowing or intentional infringement, the damages will be less than if you intentionally and knowingly infringed.

Summary

The exclusive right to create derivative works is a lesser-known exclusive right that is granted to authors of original works who fix their work in a tangible form. However, as can be seen - particularly with respect to samples - it can be a very important and lucrative right.


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Published: 01/04/2011

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