Using songs from other musicians, is that legal?

Music is a coalition of various techniques intertwined in order to make a musical sheet sonically cohesive for its audience. One may judge its quality by its comprehension of rhythm, erratic beats and clever lyricism. The criteria for music extends beyond its hardware and production, as it also adheres to the style and direction of its delivery in resonating and appealing to a listener.

For example, a hook is perhaps one of the most common techniques used to interact and engage with audience. It uses intriguing phrases that act as earworms and play like a broken cassette in the back of your mind, such as Britney Spears’, ‘Hit me baby one more time!’, or Reza Artamevia’s introduction to her chorus of Berharap Tak Berpisah, ‘Izinkan akuuuuuu-ooooh’.

Moreover, there are many other ways a musician can adopt to deliver a catchy tune. One in which will be explored in heavy detail, including the idea of making songs sound eerily familiar to a song you previously heard somewhere else. That technique is called sampling.

The art of sampling is no stranger to the music industry. Some of your favourite songs are built on samples. For example, one of the most famous hits of 2016, Drake’s ‘Hotline Bling’, sampled a song from 1972, Timmy Thomas’ ‘Why Can’t We Live Together’. Another famous tune that had incorporated sampling is Ariana Grande’s ‘Break Up With Your Girlfriend, I’m Bored’, which sampled *NSYNC’s ‘It Makes Me lll’.

Hence, sampling is best described as reusing a certain part of another pre-existing audio recording in order to make a new one. However, one must not mistake a sample to be a cover. It is not a cover, as a cover is when someone performs the song as it is, while sampling is creating a new song on the basis of a loop or a snippet of a pre-existing audio tape.

Image: Pierre Schaeffer via Electronic Beats

Some would argue that sampling evolved from the culture of early jazz musicians borrowing riffs and then adding their own twist to it. However, sampling recorded music started decades earlier. French composers Pierre Schaeffer and Pierre Henry started experimenting with audio slicing when they began collaborating back in the 1940s.

They used disc cutters in order to create unique sound collages that involved various types of audio, including more realistic sounds like trains and other mechanical noises. This abstract experiment then evolved into something more tangible, with the invention of the first device that allowed users to loop and cut arrangements of an audio track easily, a sampler, in the 1960’s. This device used magnetic tape to function.

Sampling only became popular in the 80’s, where the culture of hip-hop was starting to blossom. Block parties were a common phenomenon in that era. DJs were always trying to elevate and keep the crowds’ vibe in check, which led them to manipulate the tracks they played. They usually played the hook or a riff of a popular piece, because crowds loved dancing to them.

This soon inspired early rappers to practice the same tradition jazz musicians left behind; adding their personal flair into the mix. In this case, freestyling a verse over the track. One notable track that used sampling from that era is Public Enemy’s ‘Fight the Power’ that used the same drum progression of James Brown’s ‘Funky Drummer.’

Nevertheless, the idea of using someone else’s work in creating a derivative work is unsettling. Sampling sounds like a sugar-coated Copyright Infringement. Well, there are instances where sampling has gone wrong. An example is Vanilla Ice’s ‘Ice Ice Baby’ which sampled the bassline off of Queen and David Bowie’s incredible collaboration, ‘Under Pressure’.

He did so without consulting the original party, and when the song indeed became a hit, both Queen and Bowie did not receive any royalty. As a result, Ice was sued for copyright infringement, a case that he lost, leading to payment of an undisclosed sum and songwriter credit.

In that case, is sampling really illegal? If so, why are musicians still doing it?

Rest assured, the process is explicitly legal, as long as you obtain the proper license to use that snippet of audio in your work. Then, it no longer becomes a copy. A copy is defined as something that is exactly the same. In a case where you are creating a new track and making a derivative work, it should not apply to you.

For example, Drake borrowed the bassline from Ginuwine’s ‘So Anxious’ for his track ‘Legend’. The lyrics and the melodic progression of vocals were explicitly different. Ginuwine’s lyrical composition is less snappy than Drake’s, and his vocals incorporated thicker R&B sustained ballads, rather than quick ‘bars’ or short phrases like Drake did. He was also able to acquire permission from the right holder of the sampled track, which makes his song 100% legal.

Legally obtaining a sample so that you will not be dragged to court on a Sunday morning is a long, extensive process. A sample usually has two copyrighted works– the composition of the song– which is the lyric and melody– and the master recording of the recorded track. These two components are owned by songwriters, publishers and/or record labels.

Hence, you would have to acquire permission from each party, which comes in the form of a mechanical license. This alone is already a lethargic excursion, as determining the ownership of the song is already complex on its own.

When asking for permission, you would also have to be able to negotiate deals with the parties involved, in order for them to consider letting you use their sample. Again, sampling is only legal if it is obtained in this way, as Indonesia’s Copyright Laws (Undang-undang Hak Cipta 2014) states in Article 43 as follows:

Pasal 43

Perbuatan yang tidak dianggap sebagai pelanggaran Hak Cipta meliputi:

d) pembuatan dan penyebarluasan konten Hak Cipta melalui media teknologi informasi dan komunikasi yang bersifat tidak komersial dan/atau menguntungkan Pencipta atau pihak terkait, atau Pencipta tersebut menyatakan tidak keberatan atas pembuatan dan penyebarluasan tersebut.

Which translates to, as long as you have permission from the right holders of the work, it is not a violation of copyright.

With that being said, the expression ‘one man’s trash is another man’s treasure’ describes this process in the best way. Indonesian artist Hindia, for example, most known for his hit single ‘Secukupnya’, used a vocal chop of a TED talk in the transitional intro of his song ‘Untuk Apa / Untuk Apa?’.

American R&B singer SZA, known for being a feature on ‘All the Stars’ from the Black Panther film soundtrack, used a recorded voicemail from her grandma, as an outro for her track ‘Garden (Say It Like Dat)’.

The very perception of sound is redefining itself constantly, with boundaries and limitations to artistic ingenuity and innovation often left broken. Hence, it is important for creative people out there to realise that their creative process does have exclusive rights. But, do not let that jurisdiction blind, as intellectual property and originality can only be protected and respected if you do it right.