Understanding the conundrum between a cover and a sample of a song

A cover of a song can be best described as a totally new rendition of a released song (sound recording) by a person who is not the original composer or copyright holder.

Be it an ‘old’ song, rendered to revitalize interest in the song amongst the newer and younger generations, or a new song that has amassed an amazing dose of popularity, which is rendered by persons to showcase musical talents or “ride the wave” of the big hit.

A sample or sampling a song is the extracting of parts and bits of a released song (sound recording) and using those parts in a totally new song (sound recording) possibly after manipulation.

Sampling and plagiarism are two sides of the same coin. While Plagiarism means taking someone’s else work and passing it off as your own, (and can only be proved if the accuser shows evidence that the alleged defaulter had access to the original works of the accuser). Sampling is mostly, a deliberate act of “cut and paste”.

Covering and Sampling a song when unlicensed is infringement of copyright. The copyright law protects all creative works: which include songs. Once a song is recorded in a tangible form, it is automatically copyrighted.

The copyright in a song is owned by the author(s) or creator(s) of the song, this copyright can, however, be transferred or assigned to publishers or any other third party who now possess the copyright and other neighbouring rights (as contained in the document of transfer). Copyright in a song bestows on its owner(s) different rights which may include: Reproduction, Public Performance, Publishing, Distribution etc.

So now, let’s get to it, publishing a song means when the song is distributed to the public for sale. The copyright owner(s) control(s) every action on the song. For one to make a cover of a song, which as stated above -  “a totally new rendition of a released song (sound recording) by a person who is not the original composer or copyright holder”, the copyright owner or publisher must be sought for permission and license to use the original song/sound recording.

This is the case when such cover is intended to generate revenue i.e sold in any form which includes availability for download, streaming on digital platforms (YouTube included) or available to media stations who would pay broadcasting fees on airplay. To be able to publish a song cover, the copyright owner or publisher must administer a Mechanical License to allow recording and distribution of a song they own the rights to. For videos, however, the copyright owner or publisher must administer a Synchronization License also called a “sync” license. A synch License enables the song cover to be mashed up with/in a video.

Sampling, on the other hand, can be in two forms. - The sampling or copying of the parts of a song (sound recording) and using it in a new song (sound recording), this is an infringement of the sound recording copyright. – The re-performance of the lyrics or the beats of a previously released song in a new song, this would only be an infringement of the musical copyright in the music (‘beats’) or literary copyright in the words (‘lyrics’).

To use the parts of an existing song in a new song, one needs to ‘Clear the sample’. Clearing the sample means getting permission from the copyright owner(s) or publisher(s) and the owner(s) of the song (master owners). This is because clearing a sample involves clearing the use of the song and clearing the underlying compositions alongside. A sampling agreement shall be needed with each party if and when the request to sample is approved.

The cost and time for getting both Mechanical License or Synch License and Sample Clearing is dependent on the copyright owners and their willingness to allow alterations and reproductions of their works. It is, however, rare for copyright owners to refute their fans the license to make covers or samples of their songs as it increases the popularity of the songs (except it is for sale).

It is advisable to apply for these licenses in order to avoid a lawsuit for copyright infringement and an injunction stopping the use of such song in an unauthorized form – be it a cover or a sample, rather than go through the long tedious process of arguing for “fair use”.

Written by: Ife Idowu

Ife Idowu is an urbane lawyer with specific interests in Corporate, Entertainment and Intellectual Property Law. He is also a content writer and an entertainment enthusiast who constantly functions as a social engineer creating innovative solutions.

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