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Contract Law And Music Copyright Essay

1712 words - 7 pages

COURSEWORK FOR CONTRACT LAW (MUSIC*) *On what basis does the inclusion of samples of a recording made by *Pink Floyd constitute an infringement of copyright? In civil law regarding copyright, there are two types of infringement; primary and secondary. Primary is concerned with the unauthorised use of copyrighted works and secondary would involve the dealing or making commercial use of such infringing copies. In the music industry, an infringement of copyright often consists of an existing piece of music being used by an artist without permission from the person or company who own the rights to the original music or recorded sound. This is exactly what has happened with Alexei Duff. He has used two samples from two Pink Floyd tracks and did not get permission from the appropriate copyright owners. If found guilty in court, this would be regarded as primary infringement. There is a lot of confusion about sampling in the music industry. Several think that if only a small fraction of a piece of music is sampled, whether it is a few notes or a few seconds, then it does not need to be cleared for use however this is not the case. The 1988 Copyright Act says that for an infringement of copyright to have taken place, the sample used must be of a substantial part. This means that it is the quality rather than the quantity of the sample used which determines if an infringement of copyright has occurred. In the case of Alexie Duff, one of his tracks uses a ten second sample extracted from the song “Dark side of the moon” and the sample is looped throughout the track entire. This means that the sample substantially contributes to the overall piece of music created by the artist and as the sample has not been cleared, an infringement of copyright has taken place. Another one of his tracks consists of a two second drum beat sample taken from a song called “The Wall” by Pink Floyd and was only used once in a track. Alexie Duff could argue that the sample does not play a substantial part in the piece however he still sampled a sound recording without acquiring permission from the copyright owners. If legal action was to be carried out and the judge decided against Alexie Duff, overall it would stand that the samples used were taken from original sound recordings by Pink Floyd so therefore an infringement of the sound recording copyright would have occurred. If Alexie Duff was to re-create the drum beat rather than use the existing recorded sound then this would still be sampling though it would only be an infringement of the musical copyright. In spite of this, Pink Floyd’s record label may have less of a case in court as the sample was so short. However this is not the case. An example of where a record company has decided to take legal action against an artist for the use of sampling is the case of Hyperion Records Limited v. Warner Music (UK) Limited. A band called “The Beloved” used an eight second sample of a song called “O Euchari”. The sound was...

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