In this article, an attempt is made at examining sampling within the contexts of US and UK law. Afterwards, the Nigerian condition is examined in an attempt to identify why something as logical as sampling is consistently controversial.
One interesting case of music sampling catches the eye. Rihanna’s hit song Please don’t stop the music sampled parts of Micheal Jackson’s 1983 hit Wanna be startin something. Rihanna claimed that she sought permission. However, it was discovered that Michael Jackson had himself sampled the exact fragment from Soul Makossa, a 1972 disco song by jazzman, Manu Dibango. In 2009 and at the age of 75, the Cameroonian sued both artistes for copyright infringement.
In the US, many cases have arisen regarding sampling and copyright infringements. In 2015, the family of late soul singer, Marvin Gaye, sued American artists, Robin Thicke, T.I and Pharrell Williams. They claimed Thicke’s song Blurred Lines was a rip-off of Gaye’s song Got to give it up. The artists were ordered to pay 5.3 million dollars to the Gaye’s estate. American rapper, Travis Scott agreed to give 50% of the rights in his hit single Antidote to clear a sample he made of All I Need.
In the US, a workable defense to a suit of music sampling is the doctrine of fair use. Fair use has been defined as “the right to copy a portion of a copyrighted work without permission because the use is for a limited purpose, such as for educational use in a classroom or to comment upon, criticize, or parody the work being sampled.” The courts would look at the following factors in determining fair use: First, that you did not take a substantial amount of the original work. Second, you transformed the material in some way. Finally, that you did not cause significant financial harm to the copyright owner.
Notably, Ed Sheeran, a British singer, faced a $20 million suit in 2016 over the claim that his song Photograph was a dub of Amazing by Matt Cardle.
The U.K. Copyright, Designs and Patents Act 1988 (CDPA) provides that only the owner of a work can copy it; issue copies or lend or rent copies of the work to the public; perform, show or play the work in public; broadcast it; and make an adaptation of the work, or do any of the above in relation to an adaptation. Any kind of sampling without the consent of the copyright owner amounts therefore, prima facie, to infringement.
UK law and US law are similar to the extent that “recognizable” use is infringement, such that “infringement occurs whenever a listener hearing a bar of music can easily identify a similar sounding piece of music”. The UK however extends this to a “substantial use” doctrine that provides that “infringement must relate to as substantial part of the original work”. Each court case has largely been determined based on its peculiarities.
Music sampling in Nigeria
The Nigerian music industry is constantly proliferated by music samples. The Nigerian Artist Flavour released Nwa Baby (Ashawo Remix) in 2011 and it became an instant hit. Flavour had actually sampled another song Sawale by Rex Lawson. Sawale was released in the 1960s. Lagbaja’s Gra Gra was sampled in Davido’s If. Kojo Funds and Abra Cadabra’s Dun Talking was sampledin Davido’s Fall. Wizkid’s Caro was sampled in Yemi Alade’s Johnny.
The most sampled artist in Nigeria’s history is unarguably Fela Anikulapo Kuti. The examples are too numerous to detail. Some of this decade’s greatest hits are said to be “inspired” by the afrobeat legend. Wizkid, on Jaiye Jaiye sampled Fela’s Lady, Oritsefemi’s in Double Wahala sampled Fela’s Confusion Break Bones. Burna Boy in Ye sampled Fela’s Sorrow, Tears and Blood. Wizkid’s Sweet Love sampled Fela’s Shakara. Beyond these obvious examples, international acts such as J-Cole, Nas, Bilal and Missy Elliot have sampled Fela in identifiable tracks.
The concern in Nigeria regarding the sampling of Fela’s music is more moral than legal – that is, whether it is within the original context of socio-political advocacy. Ayomide O. Tayo of Pulse.ng gives examples in his article. The song Temper remix by Skales and Burna Boy is an interpolation of Sorrow, Tears and Blood by Fela Kuti. The original version was notably inspired by a tragic event in the artist’s life. However, the latest version was distorted to reflect the artists’ idea of having a fun time. Ayomide notes that on the contrary, Falz’s fourth solo album titled Moral Instruction which repeatedly features samples from Fela Anikulapo-Kuti but “does not stray from Fela’s ethos”.
Though music sampling is common in Nigeria, there has not been a single report of a successful sampling or related copyright suit in Nigeria. This raises a lot of questions as to the awareness of Nigerian artistes. What do they know about copyright protection? Are these many samples successfully cleared? Is the adjudication system dissuading a few from seeking legal remedy? Is it easier to call out defaulting artistes on radio and social media?
A few, recent examples of brewing conflict come to mind however. In May 2018, Tekno in his song Jogodo sampled Pologo by popular duo, Mad Melon And Mountain Black (Danfo Drivers) and was immediately accused of copyright infringement. This matter was seemingly settled behind-the-scenes as the trio later posed for a friendly Instagram post. Later, in August 2018, international act Ciara made her Afrobeat debut with Freak Me featuring Tekno. The track contained heavy sampling from Tiwa Savage’s Before Nko and was clearly without the artist’s permission. Shortly after, Ciara took to Twitter to “thank” Tiwa Savage for “inspiration”.