Fair Use In Music - Legal Challenges- Sampling And Remixing


In the words of Oscar Wilde, imitation is considered the finest form of flattery. This notion resonates deeply within the creative realm, where originality is a cornerstone for attaining copyright. Yet, one can argue that no creative work exists in isolation, as they often draw inspiration from preceding works. Examples abound, from Burna Boy's incorporation of Toni Braxton's "He Wasn't Man Enough" in his hit "Last Last" to Shalipoppi's use of Monday Edo's "Ogbaisi" in "Obapluto". In the music industry, such imitation, or sampling, is a widespread practice embraced by artists both nationally and internationally.


Music sampling involves the creative practice of repurposing a segment of an existing song within a new musical composition. This art form encompasses various techniques such as looping, chopping, layering, and reversing, among others. It's crucial to differentiate between sampling and remixing. Sampling entails extracting a portion of a pre-existing song and integrating it into a new recording, often seen in genres like hip-hop. The aim is to create an original composition by incorporating samples from earlier works. Conversely, a remix involves reworking a prior song to generate a new rendition by altering elements like adding, removing, or modifying parts of the original track.


The foundation of sampling and its legal implications stem from the copyright protection afforded to the original song. The Copyright Act of 2023 bestows upon copyright holders the exclusive rights to reproduce and adapt their works, particularly in the case of musical compositions. Songs comprise various elements, including the composition, the sound recording (or Master), and the performance of said composition. Consequently, when artists engage in sampling, involving reproduction and adaptation, they risk infringing upon the rights of the copyright owner(s) of the composition, sound recording, or both.


Nonetheless, the Copyright Act of 2023 provides provisions for copyright owners to grant authorization for others to exercise their rights of adaptation or reproduction. This authorization, commonly known as "sample clearance," is typically sought from the artist or the record label. If the copyright owner consents, a license is issued under a formal agreement allowing for the sampling of portions of the song, usually in exchange for compensation, such as a lump sum or a percentage of future royalties.


Without obtaining this license, musicians expose themselves to the risk of facing substantial lawsuits for copyright infringement, both domestically and internationally. For instance, Shallipopi encountered a N200 million lawsuit for unauthorized sampling in his hit song "Obapluto," which was resolved by properly attributing credit to Monday Edo for his moral and economic rights stemming from the sampling. In the global arena, Ed Sheeran faced a $20 million legal battle over allegations that his song "Photograph" closely resembled Matt Cardle's 2009 track "Amazing." Similarly, Robin Thicke and Pharrell Williams were ordered to pay $5 million after a jury ruled in favor of the Gaye Family, who claimed that their 2013 hit "Blurred Lines" infringed upon Marvin Gaye's "Got to Give It Up."

Echoing Rufus Griswold's wisdom in the Netflix series "The Fall of the House of Usher," he rightly observes that "an idea is nothing. An idea is a fart your brain makes. Now if you patent the idea, you have an asset." This sentiment underscores the importance of legal protection for ideas across various industries, including sampling in music. Like other creative endeavors, sampling thrives on innovative ideas that inspire further creations. However, the presence or absence of legal protection, as mentioned earlier, can determine whether these ideas become valuable assets, generating financial revenue, or liabilities, entailing legal battles and payment of damages.