Insanity: Judge Rules That Copyright Holder Of 10-Second Sample Deserves 84% Of The Royalties

from the clueless-judges dept

More insanity in the world of copyright, this time coming out of Denmark, where a judge has ordered the musicians behind a song to pay massive royalties to the copyright holder of a song from which they sampled a mere 10 seconds. Despite the fact that the musicians worked hard to find the copyright holder and to work out a deal, and despite the fact that it was just 10 seconds of music, and one of about 50 different elements in the song, the (apparently musically illiterate) judge decided that this sample was the major part of the song, and deserved 84% of the royalties. The article details how the musicians went to great lengths to work out a deal with the copyright holder, but ran into some problem as they dealt with one person who later turned out not to be the actual copyright holder. When they did discover the real copyright holder, again, they worked hard to come to an agreement. And, again, this is a 10-second sample, and one of dozens of elements in the song.

The major issue of the case concerned the definition of a sample is and whether the judge understood the nature of modern music. While Djuma Soundsystem argued ? with support from Koda ? that the sample was 10 seconds long, Meistrup argued in the court documents that ?all of [Engin?s] original composition is used, up to three minutes play time.?

Ralf Christensen in newspaper Information criticised the judge?s lack of understanding after the verdict.

?It?s a harsh verdict not only because of its economic burden, which may affect Danish music in a way similar to what we?ve seen happen with American hip hop. It is also an expression of the court?s lack of understanding for the development of modern music.?

The article notes that part of the issue may be that the musicians being sued represented themselves and were “under prepared” for dealing with the court. But the real problem is that this ruling will act as a precedent and apparently it’s the first of its kind in Denmark dealing with samples, and may effectively wipe out the ability to create music based on samples in Denmark. The band, Djuma Soundsystem, claims that it’s now hired a lawyer to handle an appeal, so one hopes that a higher court recognizes the insanity of it all. In the meantime, however, the band owes approximately $200,000 (over 1 million Danish kroner) on a song which they say made them about $25,000 (or 140,000 Danish kroner).

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Comments on “Insanity: Judge Rules That Copyright Holder Of 10-Second Sample Deserves 84% Of The Royalties”

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Anonymous Coward says:

Re: So...

Um, so how did you work out 4,116% of the royalties?

Let us try a fair calculation. The band says they made $25,000 off the song. Assume the song was 3 minutes (typical length for a song) = 180 seconds. The sample was 10 seconds. So the band owes:

$25000 * 10s / 180s = $1388.89

There, that wasn’t too hard was it?

anonymous says:

yet again, one illiterate person (as far as copyright issues are concerned)is passing a judgment that affects, possibly, hundreds or thousands of other people. why doesn’t someone realise that to rule on particular issues, a judge needs to have an understanding of what he/she is ruling on? if not, pass the case over to someone with sense, at least

IWriteActualMusic says:

Re: Re:

“Producers” with no music talent are ruining the music industry. It is ridiculously easy to build a “beat” in a sequencer, especially if you “sample” someone else’s talent. I’m not arguing about music companies and copyright, I’m saying that if I spend time writing music (an actual melody with arranged harmony in a specific genre) and then someone samples it (no matter how long a clip) without compensating me, then they have stolen my music. Stealing is stealing.

John Doe says:

Re: Re: Re:

So you invented the notes you play? How about the musical instrument you are using to create those notes? Do you owe your parents a royalty for the sounds that come out of your mouth since they created your mouth?

There are only so many notes and so many ways to arrange them, I guarantee every song knowingly or unknowingly samples other songs.

illuminaut (profile) says:

Re: Re: Re:

no matter how long a clip? really?
As long as they don’t reproduce the original song to a point where it may be mistaken for the original and claim it their own it is fair use in my book. Negativland were famous for deconstructing popular songs and turning them into something else entirely, and they too got into legal trouble more than once, but the only time they got really slammed was for album artwork that might be misconstrued for an U2 album.

Musicians need to take their heads out of their ass once in a while and realize that it’s not only the idea that counts. If people wanted to listen to the original song they would.

Anonymous Anonymous Coward says:

Re: Re: Re:

Your statement makes me think that you believe the only reason to create is to make money. I bet your music represents a similar ‘heart and soul’.

Wouldn’t a better reason to be creative, is to create? Put money as a maybe distant second or lower, would be nice, priority? That might put some ‘heart and soul’ into your music too.

Valis (profile) says:


They should send the judges dealing with cases like these back to school to complete courses in information technology, and they should be required to go for refresher courses every few years to keep up with advances in the field. A hundred years ago there was very little change in society during a judge’s lifetime, they could apply the knowledge they acquired at law school till the end of their careers and it would still be (mostly) relevant.

Today the rate of change has sped up so much (a la Alvin Toffler) that their knowledge is obsolete in a few years.

Do the law schools even give courses in technology at all?

Anonymous Coward says:

Re: Re: Re:

It’s hilarious that you think the song itself is an argument for your point rather than against. If this use doesn’t pass muster as transformative what would? Seriously, that’s not a hypothetical, is it your opinion that no music with sampling should ever qualify as transformative enough to be fair use or can you actually provide an example of song with samples that you feel are fair use?

Dark Helmet (profile) says:

Re: Re:

“let’s also add in here that it appears that the sample, while 10 seconds long, is used repeated through the resulting track (adding up to somewhere near 3 minutes of play time).”

I’m confused as to what that has to with anything in this matter. The sample is only 10 seconds long. Who cares how much elapsed time that 10 second sample is used in the song. It’s still just 10 seconds of use….

Anonymous Coward says:

Re: Re: Re:

Did you listen to the song? Without that particular sample, the song is without it’s structure. The sample provides the melody for most of the song.

The “10 second sample” makes it sound like it is a small piece of a 5 and a half minute song. The reality is that it is a key, repeating component of the song, providing it’s melody, pace, and structure. It’s not insignificant.

The court got this one right.

Anonymous Coward says:

Re: Re: Re:2 Re:

Sort of left field, isn’t it? We are talking a direct performance sample here, not “chord structure”.

As for the video itself, considering there are only 88 keys on the keyboard, there are technically only a limited number of noted to play. Musical scales limit that even further. It is very easy to try to jam a bunch of songs into a cord pattern in this manner, but it proves very little. Performance is a significant part of the deal, not just individual cords played.

Sampling? That is using performance, which is why it always ends up being copyright violation.

Raybone (profile) says:

Re: Re: Re:3 Re:

the sample starts @ 2:04 and ends @ 4:02…out of a total of is basically the sample used for the break down and rebuild..of the beat and chord sequence…which in this style of music provides the’pace and structure’..there is no melody in this song..just rhythm samples, chords, arpeggios based on those chords. Its all about a soundscape..not a melody. This is not Beatles music. The sample is not, as you seem to characterize, the linchpin in the song. I could be wrong, but it appears to me that you need to gain some fundamental education in modern music and musical structures in general.

Anonymous Coward says:

Re: Re: Re:4 Re:

The same is there beyond 4:02, and drives the melody of the song (the basic sound scape) and also provides the rythmn of the song. The pattern and progression of the sample is used throughout as it’s basic melodic structure.

It’s my opinion. I disagree with your opinion, but I understand where you are coming from.

I have to say though that trying to call it a “sound scape” rather than a song is a very sly way to try to avoid the fact that it is still made up of the same elements of a song, such as tempo and melody.

Raybone (profile) says:

Re: Re: Re:5 Re:

“I have to say though that trying to call it a “sound scape” rather than a song “..never said is a song..with no melody..and i listened very closely to the song..the sample might have an extra delayed flurry of notes that starts at 4:10 and fades to the right at 4:20. After that its just arpeggios and string pad chords. I’ve very good ears and get paid well for them. Also..harmonic motion is not the same thing as a melody.

” is still made up of the same elements of a song, such as tempo and melody” the tempo was established by arpeggios at the beginning 2 min before the sample was introduced..

Anonymous Coward says:

Re: Re: Re:6 Re:

“the tempo was established by arpeggios at the beginning 2 min before the sample was introduced.”

Actually, if you pay attention, the speed and tempo of the arpeggios appear to be set in consequence of the sample, and not the other way around. This sort of song isn’t written in a linear fashion. It is clear that the sample in question is they key melody of the song, and a such, everything else appears to have been done in support of it.

It’s opinion, nothing more.

So what is it that you do Mr Raybone that gets your ears paid so well?

Anonymous Coward says:

Re: Re: Re:5 Re:

“It’s my opinion. I disagree with your opinion, but I understand where you are coming from.”

I have my own unfounded opinion in which I use musical terms I don’t really understand. I disagree with your opinion, but I understand that you know a lot more about music than I do and clearly have a professional opinion on the matter, but I don’t concede points no matter how much bullshit I am called on.


Anonymous Coward says:

Re: Re: Re: Re:

The reality is that none of that has anything to do with the original work that was supposedly infringed here. Does this song, Les Djinns, have the same melody, pace, or structure as the original? No, it doesn’t. So how could it have infringed on those things? If it’s melody, pace, and structure are different then the work it supposedly infringes on them then obviously it didn’t get them from that work. It got the 10 second sample from that work but the melody, pace, and structure came from somewhere else.

Anonymous Coward says:

Re: Re:

“The 10-second sample is looped and played at length throughout the track. According to Skulstad?s statement to the court, while the sample is a prominent part of the melody, it is only one of about 50 instrumental layers.” So while being used throughout the track it has varying prominence in the soundscape throughout the track and is still a small part of the overall work.

Nothing like misrepresenting facts so I can prove people wrong and accuse them of misrepresenting facts. Hypocrisy is the coolest.

Anonymous Coward says:

So what prevents the record company, who produced the track, from paying any part of the royalties? I mean they made money too (and probably the majority of the money made went to them), but only the musicians are held responsible to pay back the money?

I dont know why anyone would want to be a musician these days. when even just playing music, in your basement, for yourself could get you used why even bother. just become a lawyer and let other people play the worlds smallest violin just for you, as you sue them to the ground.

Rikuo (profile) says:

The worst thing about this ruling in my opinion? It’s effectively reduced art to something quantifiable, something you can measure in mathematics. I have heard about people studying music from a mathematical approach, and obviously, you’d have to have an engineering degree or the like if you want to carve a second Mt. Rushmore…but the core of art cannot be measured. It can only be felt and appreciated.

Anonymous Coward says:

Re: Re:

Sampling effectively reduces are to something quantifiable. It can be measured in length of sample, number of notes, speed,pitch change, etc. It can all be measured and examined, because there isn’t much else in the “performance”, because the performance is actually someone else’s.

Anonymous Coward says:

” In the meantime, however, the band owes approximately $200,000 (over 1 million Danish kroner) on a song which they say made them about $25,000 (or 140,000 Danish kroner).”

Let’s start another branch here. Mike, if the song made the “band” better known, or added to their fan base, or they attracted a larger crowd or sold more merchandise at their shows, and will do so going forward, how much did it really “earn” for them?

You are all about the esoteric exposure theory of marketing, so how much is the exposure worth here? I am guessing about $175,000… what about you?

illuminaut (profile) says:

Re: Re:

uhm, ok. So how about this then: the ruling itself makes headlines and thereby exposes the band to further exposure. According to your logic, the judge should factor that into the equation, and because the higher the punishment is the more press and exposure the band gets, this will recursively spin out of control until the band either owes all the money in the world or the judge’s head explodes.

Caught in the act says:

Djuma got caught violating a copyright

If Djuma couldn’t work out an agreement with the real copyright holder, then why did they go forward and use the sample anyway? It’s so stupid because that in itself demonstrates a flagrant disregard for copyright law. That song should never had included the 10-second sample. Serves them right for trying to pull a fast one.

Also, there was no mention how often that 10-second sample was used throughout the song. 10 seconds might sound miniscule, but use it 6 times throughout a song and it’s already a whole minute.

Rikuo (profile) says:

Re: Djuma got caught violating a copyright

I’m no musical scholar here, so I’m gonna have to ask for someone else to do the legwork, since I’m unable to…
Can someone research and tell us where the “original” songwriter got that 10 second sequence from? If proof can be shown that the artist screaming and ranting about how his music was ripped off, did in fact take the sequence from somewhere else…it would invalidate the punishment wouldn’t it?

Anonymous Coward says:

Re: Re: Djuma got caught violating a copyright

Ummm the original artist did something that may be shocking to someone under 30 years old… he “played” an instrument.

I know. It is hard to imagine, people actually performing music with basic instruments rather than just arranging clips of other people performing, but it actually use to happen a lot.

Rikuo (profile) says:

Re: Re: Re: Djuma got caught violating a copyright

So what? The person who plays the piano or plays the guitar…they would have to have learned it from someone else. They would then most likely use their teacher’s music and then build off of it.
A remixer…their instrument IS other people’s work. He uses it to create something new.

Anonymous Coward says:

Re: Re: Re:2 Djuma got caught violating a copyright

Rikou, it’s the standard argument, and it might get a pass here, but it doesn’t get a pass in the real world.

No matter how good a music teacher, no matter how perfect the “rendition” of the music, someone playing guitar will always add a little of their own nuance to something. Part of the art and the mystique of playing a musical instrument is that it is a basic tool, one that requires skill, and that skill is unique to each player.

There are no perfect guitar players. There are no perfect trombone players, and so on. Each player brings a little of their own skill and nuance to their play.

Now a sample of a performance is always the same. The performance does not change. You can edit it, you can play with it, you can stretch it, shrink it, chop it into little pieces, but there is still a performance there that is not yours.

While a good producer or a good editor is an “artist” in their own way, they are not musicians.

Performance is key, it is a completed work. Using that performance as the basis for something else doesn’t make that new thing into a performance, or even really music. It is the producer editing the track, it’s something else. It’s not a musical performance.

The remixer doesn’t create new… they just recycle. You may not have seen the pieces in that order or in that collection, but it is just recycled performances by other people.

Anonymous Coward says:

Re: Re: Re:3 Djuma got caught violating a copyright

“The remixer doesn’t create new… they just recycle. You may not have seen the pieces in that order or in that collection, but it is just recycled performances by other people.”

Which is why this “new” song sounds exactly like the work it is infringing off of. It has the same melody and tempo of all the pieces it stole from. Because really its nothing new, creative or original.

Anonymous Coward says:

Re: Re: Re:4 Djuma got caught violating a copyright

The ability to play instruments trumps the ability to create new musical arrangements. Because really as long as you have had a few lessons you can fart into a tuba and I will call you an artist. However if you can play no instruments but use samples to create a truly unique and original piece of music you are nothing but a worthless hack.

But hey I am looking at this objectively and not letting my preferences get involved…

Anonymous Coward says:

Re: Djuma got caught violating a copyright

“The article details how the musicians went to great lengths to work out a deal with the copyright holder, but ran into some problem as they dealt with one person who later turned out not to be the actual copyright holder.”

Where are the damages against the first guy who lied about being the copyright holder?

Anonymous Coward says:

Re: Djuma got caught violating a copyright

You’re apparently new at this or you’d realize people license stuff to avoid legal trouble, not because they actually think they owe anyone anything. Copyrights and patents are licensed for use all the time in cases where it’s not clear who would win in court because the risk of loss is enough.

What’s your legal basis for suggesting reusing the same 10 second sample infringes more of the original than only using it once? Be specific.

Raybone (profile) says:

Sampling is a hybrid art

I think a helpful way of looking at remixing and and the use of samples versus composition is to understand the difference of what they are. What we have in much electronically-based music are essentially composer-arrangers.

Historically, arrangers take composed music and ‘remix’ them. They may change the tempo, change parts, keys, moods, instrumental composition and even styles. Frank Zappa famously arranged Led Zepplin’s ‘Stairway to Heaven’ for a big band. It took a lot of creativity even though Frank did not compose the song. Just about all the high school jazz charts and most of the college charts I read from back in the day were arranged by a person other than the composer. I contend that a remix/sample artist is no different from a jazz arranger. However, a sample artist may go further.

There are so many new tools for manipulating waves today compared to just ten years ago. It is these tools that help make a sample artist a composer as well as an arranger. Samples can be stretched, scratched, effected, flipped, internally rearranged, and tone adjusted just to name a few of the options available. There are wizards out there that can do just about anything to sound you can imagine, on the fly, and in a musically pleasing way that create new art with the elements of the old they draw from. Some controllerists can even improvise with other musicians on their instruments in a group setting adding new elements to live performances now.

Sampling is too convenient, easy, and most importantly, effective to ever stop. It will continue to grow as tech gets better and cheaper. The lines will be blurred more and more as new kinds of instruments using this tech are developed for those who play live. They will not replace regular instruments but join them on the stage. Traditional instruments will also continue to change and incorporate the new tech with the old. Already with my 6-string Ken Smith bass with a midi pick up connected to my Fantom, I can sound like an entire orchestra or really anything I chose through sampling, recording and prepping wave files to my keyboard. I would suggest this is a good trend mainly due to the further democratizing affect the tech has on the music industry. For composers with a good perspective the world is their oyster. However, considering the current climate, just don’t forget to befriend a good lawyer ;D

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