Music sampling and South African law

Without speculating about the details and merits of the matter, it’s worthwhile to discuss the general principles of music sampling. No discussion on music sampling would be complete without first defining the two different copyrights involved in a song, namely:

• The copyright in the sound recording, known in industry terms as the ‘master’.
• The copyright in the underlying musical or literary work, i.e. the ‘composition’.

The sound recording is the original recording of the song. It is owned by the person or entity that commissions its making and pays for it in money (typically a record label or the artist if they are independent).

The composition is the various elements of the music, including the melody, lyrics, and structure of the song. The composition is owned by the songwriters and producers, i.e. composers and/or their publishers.

In addition, it is important to differentiate between a ‘sample’ and an ‘interpolation’. A sample is a portion of an existing sound recording incorporated into a new song. On the other hand, an interpolation is a portion of an existing composition that is replayed, recreated, and/or re-sung and incorporated into a new song. View in your mind an interpolation as the use of a blueprint of an existing house to build a new house and sampling as the use of the bricks from an existing house to build a new house.

Sampling requires the permission of the record label or an independent artist (whatever the case may be) and the permission of the composers or their publishers because both the sound recording and the composition are being used. An interpolation only requires the permission of the composers or their publishers because only the composition is being used. This entire process is known in industry terms as a ‘clearance’.

Some music producers believe that they can evade the responsibility of clearing an existing song by merely rerecording and replaying the parts they wish to use, i.e. interpolation. This is because a new sound recording copyright vests in the new recording created. While this is a legally sound method to avoid the clearance of the existing sound recording, an interpolation will always implicate the copyright in the composition.

An interpolation constitutes an adaptation in terms of section 6(f) of the South African Copyright Act 98 of 1978, an exclusive right of the copyright owner. Accordingly, permission from the relevant composers and/or their publishers must always be sought, failure to which the person making the adaptation may be held liable for copyright infringement.

Bongani Mdakane is a lawyer specialising in intellectual property and the founder of Mdakane Attorneys