“Is it too late now to say sorry?”
“Yes”.
Following close on the heels of the Los Angeles District Court’s historic decision last year in the ‘Blurred Lines’ copyright infringement scandal, comes another rather scandalously tasty instance of an allegedly infringing work, Justin Bieber’s Billboard topping, Selena Gomez-serenading, hit single, ‘Sorry’. It appears that an indie singer, Casey Dienels, working under the stage name ‘White Hinterland’, has reportedly sued both Bieber and his producer Skrillex for allegedly sampling the famous “oo-ooh” introductory vocal riff from her haunting version in her 2014 soundtrack, “Ring the Bell”.
While I’m not sure whether Gomez has forgiven Bieber since the song’s release back in 2015, it sure looks like Hinterland’s looking for more than just an apology.
What Hinterland is alleging is not the mere ‘copying’ of the riff from her soundtrack, but digitally sampling it to use it as a part of Bieber’s ‘Sorry’. Digital sampling essentially refers to borrowing snippets from another music recording, and repurposing them to create a new composition altogether. They essentially comprise short segments of the original that are isolated and then looped to create a new sequence – James Brown’s Funky Drummer , for instance, has been sampled in over one thousand songs, and is probably one amongst the world’s most sampled songs. However, because sampling squarely falls in the exclusive domain of the copyright holder, those looking to recycle snippets from another artist’s work must necessarily obtain a license from the copyright-owner to legally sample their music. If a sample clearance isn’t obtained, the artist is faced with the very disastrous threat of being sued for copyright infringement unless he meticulously covers his tracks by burying the sampled portion in the work so that it becomes near-impossible to distinguish the original from the new mix.
Artists keen on sampling are necessarily required to obtain two licenses – one from the record label for the sound recording, and another from the music publisher for the underlying melody and lyrics. However, getting this done isn’t as easy as it appears- in an interview here, Kembrew McLeod, co-author of Creative License: The Law and Culture of Digital Sampling opines that acquiring a license to sample music in today’s day and age is an extraordinarily difficult and expensive affair, perhaps explaining artists’ tendencies to illegally dabble in it – hit artists like (ahem) Kanye West, Dr. Dre, Eminem, and even the saffron-topped teen-and-tween favourite, Ed Sheeran, have all been sued at some point in their musical careers for unlicensed sampling.
While the instant lawsuit itself has been filed in the USA, it is worthwhile to take this opportunity to explore the relationship between digital sampling and the Indian copyright law. The Copyright Act, 1957 much like US copyright law, grants protection only to the form and substance of the work as an original expression of the idea, and not the idea itself . The determination of copyright infringement in India is a two-pronged process, as upheld by the Delhi HC in Eastern Book Company v. DB Modak – the first step entails an examination of whether the entire work in itself is original as a whole, and the second looks at whether there are substantial similarities between the two.
ORIGINALITY
The Copyright At, 1957 affirms that copyright exists only in “original” works. However, the question that needs to be answered is whether the interweaving of short digital sequences into a mix, really is original? While Indian copyright law doesn’t define what the term ‘originality’ extends to, Indian jurisprudence has ample to offer on the subject. The Delhi HC in Eastern Book Company v D.B. Modak, following from the Canadian court’s decision in CCH Canadian Ltd. v. Law Society of Upper Canada, held that copyright may be present in a work created “with exercise of his skill and judgment which may not be creativity in the sense that it is not novel or non- obvious, but at the same time it is not the product of merely labour and capital.”
The Court also recognized that in order to fulfill the originality requirement, the work should have been independently created, by “application of substantial degree of skill, industry or experience”. It is worthwhile to note that Indian jurisprudence has repeatedly upheld that the copyright that vests in independently created works remains valid regardless of their resemblance to pre-existing works – this assumes relevance since Bieber is bound to argue that sampling had in fact not been carried out in the making of the song. The question then comes down to whether the loop could have been independently created and arrived at, without having been necessarily been inspired/sampled off of Hinterland’s song – but after reading the complaint filed by Hinterland where she documents certain specific factual similarities between the two riffs heavily that support her claim, I feel compelled to side with her.
SUBSTANTIAL SIMILARITY
As far as the question of the determination of ‘substantial similarity’ is concerned, whether a ‘substantial’ portion of the original work has been taken is dictated by quality of the copied work and not the quantity, as held in Twentieth Century for Film Corporation v Sohail Maklai Entertainment. The mere fact that the taken sample comprised only four notes has little implication on whether it is ‘substantial’, for if a qualitative analysis reveals its distinctive significance to the original work, the act may still amount to infringement.
To fairly determine this question, Indian courts have by and large applied the look-and-feel or ‘audience’ test, upheld in RG Anand v. Deluxe Films as being one of the most reliable tests to establish infringement, where the “reader, spectator or viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original. Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises”. Even if Bieber can prove that this wasn’t a case of digital sampling, he will nevertheless have to fight off the plagiarism allegation that Hinterland’s vocal riff has been imitated in ‘Sorry’ – and in both situations, the same test will determine whether infringement has in fact been committed.
The Delhi HC in India TV v Yash Raj Films, borrowing heavily from American jurisprudence, had recognized that an instance of substantial similarity may fall in one of two categories – i) comprehensive non-literal similarity, where the fundamental structure is copied or ii) fragmented literal similarity, in which bits of specified expressions are copied, but the overall structure is not. In both the scenarios – whether the riff is treated as the product of digital sampling or mere imitation, it appears to be an instance of fragmented literal similarity, which as defined in Newton v Diamond, is where “the defendant copies a portion of the plaintiff’s work exactly or nearly exactly, without appropriating the work’s overall essence or structure”.
In cases of digital sampling, there already exists a high degree of similarity, and therefore, the primary issue under consideration is whether the similarities are trivial or substantial. The use is deemed not substantially similar, or possibly ‘de minimis’ only if an average listener cannot recognize the appropriation.
In my next post, I shall carry forth this line of thought and explore the applicability of the defence of ‘de minimis’ use as it stands in relation to the ‘substantial similarity and threshold, and also briefly examine the ‘transformative use’ defence.