Earlier this year famous DJ and producer Eric Prydz and his associated companies (Pryda Recordings and Infamous PR) were rumoured to be launching a lawsuit against thousands of individuals who had used his ‘Pryda Snare’ sample on their tracks.

While many of the names alleged of infringement were unsigned, the list also included some very famous DJ’s and producers including Avicii, Martin Garrix and Tiesto, to name but a few. The list also identified close to 35,000 tracks which use the snare sample; several of which have been very successful in the dance music charts.

Shortly after mention of the lawsuit went viral, Prydz tweeted that the lawsuit was, in fact, just a rumour and a hoax. Luckily for those alleged of copyright infringement, Prydz has absolutely no intention of suing to recover lost royalties.

However this does beg the question: if a similar scenario were to arise with a DJ/Producer who did wish to claim royalties, could they succeed with a claim for copyright infringement?

Provided the sound created by the producer has been recorded is capable of copyright protection (i.e. – the sound does not infringe an existing copyright) and is, most importantly, original – then the sound will be protected under the existing UK legislation (found in the Copyright, Designs and Patents Act 1988).

The next question is whether a similar sound could infringe the newly-established copyright?

This question can be answered relatively simply in the case of musical, literary and artistic works (drum samples being a musical work, of course). The first part is whether the second drum sample was derived from the original copyrighted work (referred to in legal terms as a ‘casual connection’) and secondly, assuming that there is a casual connection, whether the second drum sample constitutes all (or a substantial part) of the copyright work. It is worth noting that, based on the current law, this substantial part ‘test’ is a test of quality rather than quantity; meaning that (in theory) you can copy large elements of a drum sample or a painting, but as long as you’ve changed it enough, you won’t be deemed to have infringed an existing copyright. Naturally this is quite a subjective and therefore difficult ‘test’ so if in doubt, it’s worth checking with a legal advisor.

Of course, it’s worth remembering that there are various defences for individuals using copyrighted material (be it drum samples, vocal samples etc) where the individual is using the material for ‘fair dealing’.

‘fair dealing’ tends to relate to non-commercial purposes (such as research, education, reporting of current events, for the purposes of criticism/review). However in some circumstances, where the copyrighted material is used by a company, but the company doesn’t financially benefit from the infringement, there may be potential defences available.

Litigation in the music industry is nothing new; there have been plenty of disputes and legal battles over the years.

Most recently the dispute over the ‘cowbell’ percussion sound used in robin thicke’s hit ‘blurred lines’ which is said to infringe musical copyright held by the family of the late marvin gaye. The ‘cowbell’ sound is iconic and certainly reminiscent of many marvin gaye hits, but whether that sound alone could be copyrighted is subject to some debate. Luckily a ‘friendly’ settlement was reached in this case, but it serves to show just how easy it is to potentially infringe a copyright, even by accident. However, seeking advice from a legal advisor early on can certainly mitigate, if not prevent, much of the damage that might arise from a copyright infringement claim!

Summing up, there are important messages to be gleaned from this article; particularly for those working in the creative industries.

Firstly, be aware that this applies equally to all creative industries be it graphic design, the music industry, the arts sector and many areas of media. Copyright exists in all of these sectors and most of them work in the same way as a musical copyright.

Secondly, do your research. Is it possible that your work could be infringing another person’s copyright? If so, check whether you can obtain a copyright license from the copyright holder.

Thirdly (and most importantly), if in doubt, check with a legal advisor experienced in intellectual property law. It’s a much cheaper option than defending a claim for copyright infringement!

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Ryan Lisk

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Ryan has helped a vast number of businesses protect and control their intellectual property as well as drafting and advising on consumer and commercial contracts.

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