Illustration is the author’s own
“I love you, I love you, I love you.”
These are the apt opening lines of Certified Lover Boy , the newest album from one of the biggest living artists on the planet – Aubrey Drake Graham, better known simply as Drake. However, these first words (from the track ‘Champagne Poetry’) are not performed by Drake himself. Rather, the listener is hearing a sped-up/pitched-up musical sample of ‘Michelle’, a track from The Singers Unlimited, released in the 1970s.
Music sampling may have become more prevalent in recent years, but it has been a part of music history for decades. Amongst the early examples is ‘Fight the Power’ from Public Enemy, which features a grand total of 17 samples in just one song. Critical responses to early sampling were often negative, with many early critics viewing the practice as laziness at best, or inexcusable theft at worst. Chaka Khan was famously critical of how Kanye West sampled her voice on ‘Through The Wire’, with the super-producer’s decision to pitch-up Khan’s voice drawing fury from one of the biggest pop stars of her day. Although the aforementioned examples are all from rap music, the culture in which music sampling has arguably found its most consistent home, there are examples to be found further afield. The Verve, an English rock band, famously sampled a string cover of a Rolling Stones song for their track ‘Bitter Sweet Symphony’, and were ordered to give up all the royalties involved (until 2019, when the manager of the Rolling Stones announced they were handing the rights back).
Nowadays, the practice of sampling is commonplace, although there are still significant legal hurdles to navigate. US courts have presided over a number of legal cases surrounding music sampling, but in the UK very few cases have ever made it to court. Most UK disputes are settled outside of court – it’s seen as too risky to put such cases through the official legal avenues due to the unpredictable nature of the outcome. Let’s consider some of the key legal concepts surrounding music sampling in the UK in order to outline some of the key legal challenges, with comparisons being drawn to the US for reference.
The main UK regulation relevant to music sampling can be found in the Copyright, Designs and Patents Act 1988. Works firstly need to fit a set of criteria to qualify under the act, including if the work was published in a qualifying country, the author was a British citizen, or the author was resident in a qualifying country. The act also defines ‘works’ as literary, dramatic, musical and artistic works. A ‘song’ is not an entirely straightforward concept here – for example, the lyrics are categorised separately (as a literary work) to the music (instrumental) itself. The copyright protection also ends 70 years after the death of the author. As a result, sampling the famous three-note pattern from Beethoven’s ‘Moonlight Sonata’ wouldn’t pose any challenges – it’s in the public domain.
The copyright for works which are still covered lists them not only as a property, but also as containing moral rights. The property half of this point essentially means that an author can transfer it to others – often in exchange for a cut of the royalties (sometimes a lump sum too). This is the safest recommended route of music sampling, otherwise known as clearance. However, the moral rights create complex grey areas. In the US, Jay-Z’s iconic rap track ‘Big Pimpin’ was based on a sample of a track by Egyptian composer Baligh Hamdi called ‘Khosara Khosara’. Even after being offered the necessary compensation by producer Timbaland, Hamdi objected to the sample’s use on the grounds of moral rights, since he found the sexually explicit contents of Jay-Z’s new track to be at odds with the sentiment of the original track (and his own personal views). The case was only thrown out of US court a few years ago. Speculation continues on how a UK court would react to a similar case.
So let’s assume you’re a young British producer who’s sampled a piece of music without obtaining clearance, and the original author isn’t too happy. What kinds of defense can be put forward in the UK? There are two main options here. The first, ‘fair dealing’, covers areas like the sample being used for education, news reporting, and other similar purposes. The second, which the remainder of this article will focus on, is the common law principle of ‘de minimis’, which states that any extremely minor offences to the law should essentially be disregarded.
When considering de minimis in this context, a ‘substantial similarity test’ is carried out – often with the input of musicologists who produce written analytical reports comparing the two works. This test considers both quantitative and qualitative elements – in sampling terms, how long is the sample used for and how important is it to the new track? Let’s consider some examples from UK music, and assume hypothetically that they did not receive proper clearance. Headie One’s ‘Both’ samples Ultra Nate’s ‘Free’, and has the guitar chord progression of the original repeated throughout the entire song (creating the whole harmonic scheme of the work), as well as a repeated distinctive vocal interjection from the original. Here, neither the quantitative or qualitative elements of the sample would likely be excused. On the other hand, consider Stormzy’s ‘Big For Your Boots’. The almost undetectable sample of ‘House Train’ by Risse would likely be protected by a de minimis defense, since it lasts only around a second, only appears infrequently, and has been manipulated by producer Sir Spyro far beyond recognition.
Do courts give more consideration to one side of the test than the other? In quantitative terms, the music industry has been said to hold onto an unspoken 3 second sample rule, yet in US courts this has consistently been shown to hold little to no weight. In the case Bridgeport Music Inc vs Dimension Films, the use of a sample from Funkadelic’s ‘Get Off Your Ass and Jam’ for the N.W.A. song ‘100 Miles and Runnin’ was found to be illegal by an appeals court, despite the sample lasting only 2 seconds. Qualitative aspects were viewed, and are viewed in many other cases, as more important. Many critics saw the case as an example of the law limiting the artistic creativity of artists with unnecessarily harsh rulings.
The court from the Bridgeport Music Inc vs Dimension Films case went on to bluntly conclude: “Get a licence or do not sample. We do not see this as stifling creativity in any way.” Many have argued that UK courts would take a similarly stringent approach, and the lack of case history here makes it an even more risky business. The first track of Certified Lover Boy  might have featured a sample, but the title of its final track, ‘The Remorse’, could serve as a reminder for anyone considering the risk of sampling without clearance.