Sure. But in this particular case, we’re talking about a DJ (That would be Doctor Luke, in this particular case) using samples to create a song… and then “disguising” the fact that they used those samples.
In the recent case of Pharrell and Robin Thicke being found guilty of infringing upon the copyright of Marvin Gaye’s Got to Give It Up, subpoenaed communications between Williams and Thicke talking about how they did use samples from Gaye’s song to make Blurred Lines- and then recreated a similar… what was the word…? a similar ostinato.
In the case of Dark Horse there was no such smoking gun- but there’s striking similarities even beyond that riff to make it clear to me that the same exact thing happened.
I don’t know what point you’re trying to make here. If their recording didn’t sample the prior recording then they’re off the hook for sampling. That’s all there is to it.
If their recording doesn’t have actual samples in it then you’re back to the usual musical work analysis. Is what they’re using part of the protected content of the other work? “Disguised sampling” isn’t a thing in that analysis.
But they’re not “sampling but disguising that they’re sampling”, because they’re not sampling at all.
For point of comparison: Suppose that I make a recording of Elton John playing scales on a piano. I then write my own song, completely from scratch, and I “perform” that chord by picking out notes that Elton John played, and playing those notes back one at a time. In that case, I am sampling, even though the song was my own original composition.
“Sampling and disguising it” would be something like taking the recordings and putting them through some sort of digital filter.
But using your own instrument or voice to produce the same notes as someone else isn’t sampling, at all, in any form.
No, the right comparison would be that you are a DJ. You are used to making EDM tunes, building them by layering samples of existing music.
One day, you listen to an Elton John song, you enjoy a short part he plays on his piano, and use that as the basis for a cool new song.
Now, you made a song using a sample of somebody else’s work. You feel it’s going to be a big hit. However, you realize that Elton John’s lawyers are going to ask for the correct attribution to their client. That means less money for you.
So you change a couple notes from the original, and have a studio pianist play them. Bam, now you will happily claim that the sample you’re using to make the song is yours, written exclusively by yourself and nobody else. Elton Who? Never heard of the fella.
So, in this case, the question was: did Luke, Martin, Perry, J (but let’s face it, more than probably just Luke) made a song with those similarities to Joyful Noise by sheer accident, or did they infringe copyright?
And what seems to me, having heard the song and the similarities, is that what happened was that Luke literally made a song with the riff from Joyful Noise, and even kept several of the hooks. And he would be hardly the only one doing it, if he did. And then tried to pretend he didn’t.
I’ve seen it. I find it profoundly dishonest. He makes absolutely zero effort to give any merit to the opposite point of view… more like he openly attacks the plaintiff’s expert musicologist Todd Decker, accusing him of nothing short of ruining the music industry for money, with the predictable result of Reddit starting a campaign of email harassment, since he’s the villain du jour…
And worse, he makes some bad faith points, like when he says *“you convinced a juror that the idea of quarter-notes descending in a minor scale from the third degree originated in 2008… with Christian rapper Flame.” * No he didn’t. He convinced a juror that said quarter-notes were one of the many similarities between the two songs. But of course, saying that sounds too reasonable.
This case is another one that shows that the sooner copyright is written off as a failed experiment, the better. The purpose of copyright is to ensure that works of art get created so that others can be inspired by them, but it is currently being used to do exactly the opposite of that.
Sampling, or “disguised sampling” is irrelevant to this question.
Maybe he did and maybe he didn’t.
But you seem to be focused on this as if it’s the only question when it comes to infringing a song copyright.
Here are the questions:
Does the plaintiff hold rights in an original and creative work of expression that is protected by copyright?
What portions or aspects of that work constitute the protected work? <– This is the important question that is being disputed in cases like this and “Blurred Lines” – when it comes to a song, what exactly is protected?
Rick Beato and others like him would say “melody and lyrics.” The reason that the world of musical composers is up in arms over the “Blurred Lines” case is that it seems to be giving protection to something a lot broader, something that might swallow up a whole genre or style of music, which definitely is not a good thing for songwriters.
For songwriters to be able to work as songwriters at all, they have to be free to use the tools and elements that are used to create, say a blues song, or an R&B song, or whatever. Can you imagine a musical marketplace in which no musician is allowed to sound like another musician?
Did the defendant copy any of the protected expression without authorization? <– Your speculation about “disguised sampling” misses this point. It doesn’t matter if the defendant engaged in the process you described unless what was copied is part of the protected work as identified in No. 2.
That someone copied a riff or a portion of a major scale isn’t infringement unless that riff or portion of a major scale is itself protectable expression. If a particular melody is protected expression, it’s not true that any part or portion of that melody is also necessarily protected.
At some point you cross the line between protected expression and the tools that are used to express oneself in a particular medium. In a written medium, for example, letters of the alphabet, typefaces, single words, names, and short phrases are not protectable elements by themselves, even though they might be part of a larger work that is protected.
And copying is copying. It doesn’t matter whether it happened through “disguised sampling” or some other way. What you’re missing is that the issue of sampling is relevant only when the plaintiff’s expressive work at issue is a sound recording. You can’t sample any portion of a sound recording.
So if this was a case about infringing a sound recording, then the question would be whether the defendant’s work actually samples the recording. “Disguised sampling” would be irrelevant.
But this isn’t a sound recording infringement case. It’s a musical work (composition) infringement case. So, the question is whether the defendant copied or not. The mechanism (“disguised sampling”?) by which that copying happened doesn’t matter.
Ah, but it is precisely Blurred Lines what makes the idea of covert sampling relevant. Because that’s essentially what the Marvin Gaye State accused Pharrell of doing.
(And let’s be honest, he probably did.)
I can imagine a musical marketplace where musicians “borrow” constantly from other musicians and give them the right attribution. Because that’s what most musicians do right now. In any case, let’s not get Slippery Slope here, you can have perfectly reasonable copyright laws without it descending into a dystopia where you have to give half the profits to any rock song to Chuck Berry’s descendants.
Because there’s no evidence that they actually took the riff from “Joyful Noise.” If they did, then sure, they ought to give credit. If they wrote the riff independently, then why the hell should they retroactively give anything to someone who happened to have produced something similar earlier. So far as I can tell, the only “evidence” that has been presented that the Dark Horse authors had heard Joyful Noise is that the two contain a similar riff.
But it’s not like this is some complicated riff. The elements that are actually the same consist of a single note repeated four times followed by a note one full step lower repeated twice. There is no reason to think that the only way to play those two notes in succession like that is to have heard the earlier song. In the absence of any real evidence that they copied the riff rather than coming up with it on their own, the presumption ought to be that it was an independent creation.
But there is way more than just the riff. There’s the guys going, “Hey! Hey! hey!”, there’s the “Y’all know what it is”, there’s the line said in a sudden pitch drop, and I’m sure that an expert can find a lot more similarities.
This is gibberish. Either “Blurred Lines copied protected expression or it didn’t. The “disguised sampling” bit is irrelevant.
Copyright law is about exclusive rights. Except in a very narrow set of circumstances, It’s not about “giving credit” (unless the person licensing es exclusive rights demands it).
I have no interest in converting copyright law into a “giving credit” regime. What I want is to be more certain about what exactly is covered by those exclusive rights, and I don’t want them extended to the basic building blocks of music.
This is why I’m harping in the difference between copyright infringement and plagiarism. Giving credit is a plagiarism issue, not a copyright issue.