(Part I can be accessed here)
Both Bieber and Skrillex have vehemently refuted allegations that the riff comprises an act of digital sampling – Skrillex recently even tweeted a video in an attempt to break down the creation of the vocal riff in ‘Sorry’. Nevertheless, it is worthwhile to explore the possible defences available against an action of infringement specifically by digital sampling, in attempt to speculatively – on account of lack of sufficient judicial precedent – narrow down the corresponding legal remedies that might have been available to Bieber and Skrillex in India, had the case been filed in the country.
Digital samples, by virtue of being founded on existing musical compositions, are inherently derivative works – the right to the creation of which, by law, remains vested only in the hands of the copyright-holder of the original work itself. However, while unauthorized digital sampling will in most cases amount to copyright infringement, the defendant might possibly be able to escape penalty if he can successfully establish, i) that the alleged infringing loop is de minimis and thereby, fails the ‘substantial similarity’ test, or ii) under the fair use defense, that the work was transformative in nature – for instance, where a work is sampled in the process of creating a parody, as held in Campbell v. Acuff-Rose Music. Since Indian Courts have in the past greatly relied on American jurisprudence to explore the crux of these two defences, I will partially turn to precedents in the USA to explore the possible outcome in the event that the entire lawsuit had been filed in India.
THE SUBSTANTIAL SIMILARITY – DE MINIMIS USE CONSIDERATION
‘De minimis’ use refers to a trivial legal violation that is insufficient to warrant legal remedy – it follows from the legal maxim ‘de minimis non curat lex’ which translates into ‘the law does not concern itself with trifles’. Where a taking has been deemed de minimis, it means that copying has occurred to such an insignificant extent, that it falls short of the qualitative and quantitative threshold necessary to be achieved in order for the act to amount to copyright infringement. De minimis use can function as a defense in instances of fragmented non-literal similarity, and therefore, would appear to be applicable in cases where infringement by digital sampling is claimed. It is worthwhile to consider that the actual stance on this remains unclear even in the USA – while the Sixth’s Circuit in Bridgeport v. Dimension Films established a widely-criticised bright-line rule that “no substantial similarity or de minimis inquiry should be undertaken at all when the defendant has not disputed that it digitally sampled a copyrighted sound recording.”, the Ninth Circuit made amply clear its dissent with the ruling, and departed from this approach in VMG Salsoul, LLC v. Ciccone, holding that the de minimis exception is applicable to instances of sampling as well. This makes it difficult to predict what way the Indian courts will go, if and when presented with the question.
As recognized in Newton v Diamond, use is considered de minimis only if “it is so meager and fragmentary that the average audience would not recognize the appropriation”. In Hinterland’s complaint, where she details the similarities between the two songs, she writes that the loop plays for the first eight seconds of the song, and is then used again at multiple intervals. However, it is worthwhile to note that in ascertaining the question of whether the use is de minimis, the fact that the sample was looped throughout Sorry may not be a significant consideration, as upheld in the case, because “the relevant inquiry is whether a substantial portion of the protectable material in the plaintiff’s work was appropriated — not whether a substantial portion of defendant’s work was derived from plaintiff’s work”. In Newton v. Diamond, jazz composer James Newton had filed a suit against the Beastie Boys for having allegedly sampled a three note segment from one of his songs, which the Court ultimately found to be de minimis. Newton was unable to prove that the appropriated sample constituted a significant part of his work and thereby was an appropriation recognizable by the average listener – factors pertinent to be established in order to show that there existed ‘substantial’ and not trivial similarity between the two. The Court finally ruled that in order to determine the ability of an average listener to discern the similarity of the copied four-note sequence, with it being ultimately held that the use was a “simple, minimal, and insignificant” part of Newton’s work and lacked the distinctive elements necessary for the act to be considered infringement. However, it is at the same time, worthwhile to read dissenting Judge Graber’s opinion, for it throws further light on the difficulties associated with determining copyright infringement in musical works, stemming from the clash of conflicting perceptions of what falls on the side of creativity, and what, on the side of imitation.
The infringing work under question is the vocal loop at the very beginning of Hinterland’s “Ring the Bell”, which, when qualitatively considered, does seem to constitute a significantly distinctive and ‘substantial’ portion of the song – the similarities between the two riffs seem easily distinguishable for an average listener. Interestingly, however, and quite to my surprise, a Buzzfeed survey on the issue – notwithstanding its actual reliability – reflected that while 44% of its takers thought the similarities were too close to be coincidental, 33% disagreed, only further substantiating my argument that it is almost impossible to draw a perfectly fine line between what is and what isn’t a copycat musical work.
TRANSFORMATIVE USE OF THE SAMPLE
In The Chancellor Masters & Scholars of the University of Oxford vs Narendra Publishing House and Ors, the Delhi HC observed that in order to be deemed transformative, “The subsequent work must be different in character; it must not be a mere substitute, in that, it not sufficient that only superficial changes are made, the basic character remaining the same”. However, I wonder – can the repurposing of a short riff by integrating it with a new composition amount to “altering the original with new expression, meaning or message” (Super Cassettes Industries v. Chintamani Rao”), so as to be considered transformative and thereby override the other fair use considerations? While digital technology has opened up a new infinite realm of transformative uses for musical works, could the constraints imposed by traditional notions of copyright possibly be threatening the advancement of art?
Based on existing precedent, it seems unlikely for the Court to accept the fair use defence in the event that Hinterland successfully establishes that the loop under question is in fact the product of digital sampling. The fact that the unauthorized samples use snippets of existing works to construct and sell new recordings, effectively violating what is deemed the exclusive right of the author, is likely to immediately swing the Courts in favour of the infringement claim by deeming the act outrageously akin to theft (see Grand Upright Ltd. v. Warner Bros. Records, Inc.)
Musicians are heavily inspired from the ones that came before them, and tend to draw from what is already available to produce new works. However, the more pertinent issue here is not one of incidental imitations, but deliberate lifting and recycling – an act that in recent times, doesn’t necessitate expensive equipment, and is easily facilitated by downloadable apps and plugins, with Spectrasonics Ominsphere 2 being one of the more popular products in the sampling software market. Because sampled music essentially thrives on previously created and most likely copyright-protected recordings, it is inadvertent that secondary users employing the use of unlicensed music quite often find themselves in a world of trouble.
Sampling represents a facet of advanced digital technology that global copyright statutory regimes have yet to specifically to tackle – although US Circuit courts have, in a series of decisions, made a fair attempt to shed substantial clarity on the issue, conflicting interpretations across different jurisdictions have only served to complicate the matter, effectively making it difficult for artists to predict the outcome of an infringement suit against them. If courts in India are ever presented with a question of the sort, it seems unlikely that they will adopt a liberal approach unless there is strong international precedent supporting the legality of unlicensed digital sampling (with caveats, of course). A balance must necessarily be struck between the rights of copyright-holders to control the exploitation of their creative works, and artists’ interests in the creative liberation afforded by new technologies.