{"id":4858,"date":"2024-08-29T09:20:06","date_gmt":"2024-08-29T07:20:06","guid":{"rendered":"https:\/\/djp-a9vm.1wp.site\/?p=4858"},"modified":"2026-10-19T19:05:18","modified_gmt":"2026-10-19T17:05:18","slug":"music-covers-and-sampling-legal-aspects-part-2","status":"publish","type":"post","link":"https:\/\/djp.pl\/en\/music-covers-and-sampling-legal-aspects-part-2\/","title":{"rendered":"Music covers and sampling \u2014 legal aspects, Part 2"},"content":{"rendered":"

As promised, we now examine sampling\u2019s legal aspects: how the result is classified and whose consent is needed to distribute a work containing samples.<\/p>\n

Rights affected by sampling<\/h2>\n

Sampling may use three layers: the work, artistic performance and phonogram, or sound recording. Each has different protection.<\/p>\n

For the work<\/strong>, protection covers individually creative material: a complete musical thought, such as a short melody, refrain or distinctive phrase like Beethoven\u2019s opening to F\u00fcr Elise<\/em>. Performance rights<\/strong> cover works and folklore, recognising original performances of public-domain folk melodies. Using only a fragment of a musical thought, such as one sound or chord, does not infringe author or performer rights[1]<\/a>.<\/p>\n

A phonogram<\/strong> is the first fixation of a performance\u2019s sound layer or other acoustic phenomena[2]<\/a>. It includes leaves, waterfalls and street sounds, not just music. Even recordings of unprotected tiny musical fragments qualify. Sampling therefore almost always requires producer consent. Phonogram producers, usually labels, receive the broadest sampling protection.<\/strong><\/p>\n

Part I identified three technical methods. Legally, sampled works may be adaptations, works with borrowings or works containing musical quotations, with different public-use requirements.<\/p>\n

Adaptations first.<\/strong> Production practices often involve extensive creative processing, presenting one work against another rather than mere technical pitch adjustment. Changes may include major-to-minor shifts, new tracks or replacement of original elements. Such creative transformation is an adaptation[3]<\/a>.<\/p>\n

Paul Kalkbrenner\u2019s Feed Your Head<\/em>[4]<\/a> provides a collage example. Its distinctive vocal comes from Jefferson Airplane\u2019s 1967 White Rabbit<\/em>[5]<\/a>, an iconic sixties song inspired by literature including Lewis Carroll\u2019s Alice in Wonderland<\/em>. Grace Slick\u2019s voice is central to both. Incorporation into electronic production creates a modern interpretation of a psychedelic classic whose surreal lyrics fit the producer\u2019s style.<\/p>\n

Some scholars disagree with routinely classifying sampling as adaptation. Outside remix or compilation, the result may usually be independent[6]<\/a>. Even continuous recognisable looping does not necessarily play the subordinate role typical of adaptations[7]<\/a>.<\/p>\n

Musical quotation<\/strong> incorporates a short, often familiar motif from an earlier published work[8]<\/a>, serving as an addition or ornament rather than foundation[9]<\/a>.<\/p>\n

Some lawyers invoke Article 29\u2019s quotation exception, allowing excerpts or small entire works where justified by explanation, criticism or the rules of the creative genre, without author consent<\/strong>. Video reviewers use this for music-video excerpts. For sampling, genre rules are crucial.<\/strong><\/p>\n

A narrow interpretation<\/strong> discounts custom because exceptions are construed strictly. Borrowing must be inherent to the genre, as with literary or film reviews[10]<\/a>. A hip-hop beat could be made without samples, so would not qualify.<\/p>\n

A broader interpretation<\/strong> allows established genre customs to justify quotation[11]<\/a>: accepted rules extending beyond a local scene[12]<\/a>. Samples must be necessary for the artistic objective, subjectively, and a customary, established means of achieving it, objectively[13]<\/a>.<\/p>\n

Hip-hop instrumentation historically rests on loops, making sampling central to rap culture. The broader view could therefore permit quotation-based sampling.<\/p>\n

A Polish communist-era newsreel[14]<\/a> opening Taco Hemingway\u2019s Wszystko jedno<\/em>[15]<\/a> illustrates quotation. Lowering the woman\u2019s voice does not necessarily disqualify it. Musical quotation permits minor secondary changes more readily than literary quotation, but substantial transformation exceeds the exception[16]<\/a>. Timbre modification preserves the passage\u2019s content and message[17]<\/a>, adding tragicomedy without becoming the track\u2019s foundation.<\/p>\n

Even the broad view requires more: samples must enrich rather than underpin the new work[18]<\/a>, remain recognisable and separate from original elements, and respect legitimate interests. Attribution is customarily omitted in music[19]<\/a>.<\/p>\n

Works with borrowings<\/h2>\n

This intermediate category, unregulated expressly, exceeds quotation without constituting adaptation. The new work is not principally a transformation of the sampled one. Reordering or omitting passages alone is not adaptation[20]<\/a>.<\/p>\n

Use requires original-author permission, for example an agreement specifying sample length and remuneration[21]<\/a>. Sample creators and performers receive royalties for borrowed works. By contrast, the article\u2019s distinction treats adaptations and quotation as not generating royalties for original creators.<\/p>\n

Legal consequences<\/h2>\n

Classification is difficult, especially where several samples are incorporated on different bases.<\/p>\n

For adaptations or borrowings, distribution needs several consents. A sample constituting a complete musical thought requires author, performer and phonogram producer approval. A single sound or chord needs only producer approval.<\/p>\n

Adaptation necessarily affects the original\u2019s integrity and moral rights under Article 16. Permission to exploit the adaptation or borrowing also removes unlawfulness of that integrity interference[22]<\/a>.<\/p>\n

Some lawful sampling nevertheless requires no consent and does not rely on quotation, as discussed below.<\/p>\n

Phonogram rights and famous disputes<\/h2>\n

Producer protection is broader: any recorded sample engages it, whether the whole recording or its smallest part.<\/p>\n

Sampling initially attracted little author or label attention. An early major dispute involved Warner Bros. Records and Biz Markie[23]<\/a>, whose Alone Again<\/em>[24]<\/a> used around ten seconds of Gilbert O\u2019Sullivan\u2019s Alone Again (Naturally)<\/em>[25]<\/a>. The court found infringement, describing unauthorised sampling as theft. Markie retained his humour, naming the next album All Samples Cleared!<\/em><\/p>\n

Bridgeport Music v Dimension Films<\/em>[26]<\/a> likewise rejected unlicensed phonogram sampling: if a whole recording cannot be pirated, neither can part[27]<\/a>. The principle was \u201cget a licence or do not sample\u201d[28]<\/a>.<\/p>\n

Rights holders began listening more closely to hip-hop backing tracks, and labels introduced contractual clauses excluding uncleared samples.<\/p>\n

Europe\u2019s prominent Metall auf Metall<\/em> dispute[29]<\/a> involved Kraftwerk, Moses Pelham and Martin Haas. Kraftwerk\u2019s 1977 track[30]<\/a> supplied a two-second rhythm loop throughout Sabrina Setlur\u2019s Nur mir<\/em>[31]<\/a> twenty years later. Kraftwerk sought an injunction, damages and destruction of recordings. Germany\u2019s Federal Court of Justice referred six questions to the CJEU, which held[32]<\/a>:<\/p>\n