Every second (and even split second) counts!

VMG Salsoul LLC filed a lawsuit against the singer Madonna. The cause for such action was the use of 0.23 seconds from the composition “Love Break” by the band Sasloul Orchestra in Madonna’s track “Vogue”. The plaintiff considered that this was a violation of his copyright, due to which Madonna received illicit profits from using this fragment in her song. The suit also stated that the current producer of Madonna had previously worked on the composition “Love Break”.

American justice felt that using 0.23 seconds is not enough to be recognized as copyright infringement. However, the decision was not unanimous, one of the judges of the panel spoke in favor of the stance that under copyright infringement one should understand the use of even a smallest part of a musical work without a license.

In Germany, musicians sued because of copyright to a musical work. The group Kraftwerk (pioneers of electronic music) released a song “Metall auf Metall” (“Metal on metal”) in 1977. After 20 years, a fragment of the percussion part from this record was used by a singer Sabrina Setlur in the song “Nur mir” (“Only for me”) without permission and remuneration to the Kraftwerk group.

In this case, 2 seconds of work became a reason for the trial.

The defendant insisted that using such a fragment is a normal practice; specific parts of songs are used either as instruments or as parts of a new hip-hop composition. The defendant also insisted that the ban on the use of such small fragments of works will lead to significant restrictions of freedom of creativity for hip-hop performers.

In 2012, this dispute was resolved in favor of the plaintiffs. The Federal Supreme Court of Germany ruled that the singer had violated the copyright law, and barred distribution of the composition. The defendant did not agree with the court’s decision and appealed to the Constitutional Court of Germany.

The Constitutional Court of Germany ruled that using 2 seconds of a composition by another group does not go beyond the implementation of the singer’s right to “freedom of creativity”, that the sued over precussion part only sounds for 2 seconds, and that the song by Setlur is “completely new and independent”.

The defendant’s arguments were taken into account by the court, which in its decision reflected, that “the musical genre of hip-hop lives off of sound sequences and it would not survive if it was forbidden”.

As a result, the German court ruled in favor of the singer Setlur and recognized her right to use a 2 seconds from the song “Metall auf Metall” in a song of her own.

Thus, the courts of both the US and Germany recognized that using 0.23 and 0.2 seconds of another performer’s work is not a violation of copyright. The question remains open: how many seconds of someone else’s work can be sampled in your song?

Expert opinions. In Russia, opinions of experts on this issue, as usual, were divided.

Veronica Comina from the company “Business and Music” emphasized that borrowing short fragments of songs widely popular in the past is entirely acceptable, unless the entire composition is built on someone else’s popularity. She also holds the view that the degree of borrowing should be determined by musicologists. The court must also take into account the economic nature of such cases: if it turns out that the new song is more popular and more profitable at the box office, in which a fragment of the “old” song is used, then the rightholders of the “old” song, as a token of gratitude that their work was remembered and revived, often renounce claims. On the other hand, if the whole “new” song is based on constant repetition of fragments of another song, then it is a question of plagiarism and the court is obliged to make the offenders compensate the performers whose song is more popular.

Dmitry Seregin from the company “YUST” believes that limiting the use of the “old” work is justified only if it entails property losses for the original rightholder or distorts the original intention (behind the composition) of the author. Otherwise, it hinders creative activity of other authors and performers.

Pavel Katkov from “Katkov & Partners” highlights that using a fragment of a work is considered “processing”, which requires expressive consent from the copyright owner of the “old” work. At the same time, he notes that there was no processing in the noted German case, since only 2 seconds of someone else’s work were used in the new song.

Sergei Zuykov of “Zuikov & Partners” believes that it is impossible to use any part of someone else’s work without permission of the rightholder.

Considering importance of the decision of the Constitutional Court of Germany, the opinions of experts were also divided.

Sergei Zuikov believes that the decision of the German court created a precedent and now it will be necessary to determine the freedom of creativity whilst creating new works, and that in the future parties of such disputes will be able to refer to this decision.

Veronica Comina retorts to Sergei Zuykov’s opinion and points out that Germany belongs to the Romano-Germanic legal system of law, in which the judicial precedent is not as crucial as in the Anglo-Saxon legal family, which may not work in a new work author’s favor.

How things stand in Russia?

Veronica Comina notes that processing a work is an author’s exclusive right (Article 1270 of the Civil Code of the Russian Federation), yet also notes that there were no examples of legal proceedings over a short part of a work (percussion or other instrument); Russian authors and rightsholders are not so aggressive. At the same time, she notes that the most famous case of misuse of a Russian melody – borrowed by African rappers Die Antwoord, the composition “Если с другом вышел в путь” (If you went out with a friend) by composer Vladimir Shainsky, was settled in a peaceful manner after filing a claim first, and royalties began coming from abroad to Russia.

The authors of the article would also like to recall a story with Eduard Khil, whose song “I’m coming home” became very popular after it was reuploaded to the web by Internet users. Drawing inspiration from the lyrics and popular web trends, new fans nicknamed Eduard Khil “Mr. Trololo”. At the same time, the artist himself not only refrained from filing lawsuits against the user who illegally used his song, but was grateful that his song became popular again.

This article was partly drawn from materials gathered from the following websites: ipclub.in, pravo.ru

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