Following my recent piece on covers, samples and derivative works, I received comment from a reader who highlights a blind spot in our local music industry.
Here is the reader’s response: “Imitating can’t be regarded as a copyright infringement. Maybe the use of a sample without permission.”
This is a fair point because it forces us to define our terms. Using the word “imitation” in my original piece was probably a weak choice, even though I intended to use simple English to explain a complex legal concept. This is important for a layman such as myself.
The reader is half right. You cannot copyright a vibe, style or genre. Imitating the vocal inflections of Congolese soukous or the drum groove of Nigerian Afrobeats is perfectly legal. But copying a specific musical expression can be a different matter.
A recorded song can involve two distinct copyright works. The first is the sound recording, which is the record or the actual audio captured in the studio. This is where sampling comes in. The second is the musical composition, which is the underlying musical work, including its melody and other original musical elements. The lyrics may also enjoy copyright protection in their own right.
When I used the word “imitation” in my previous article, I wasn’t talking about borrowing a vibe. I meant the literal copying of protected musical expression. I’m talking about an artist taking the original melody of a pop hit by Malawi’s Driemo, for example, and simply replacing the Chichewa lyrics with Otjiherero words.
Changing the language does not automatically make the copied melody original.
Using audio from an existing recording without the necessary permission may infringe on the copyright of that recording. But even if you record the music yourself from scratch, using different instruments, you may still infringe copyright in the underlying composition if you reproduce protected musical expressions without authorisation.
The original composer or other copyright owner may still hold the rights to that melody.
In the music industry, recreating musical material from an existing composition in a new recording, rather than using the original audio, is generally called an interpolation. It is a common practice, but where the recreated material includes protected musical expression, doing so without the necessary authorisation may infringe the original copyright owner’s rights.
You do not necessarily have to copy an entire song for infringement to occur. A shorter passage may be enough, depending on what has been copied and the circumstances.
This is where some musicians get it wrong. They assume that because they played the notes themselves, used different instruments or sang the melody in another language, they’ve avoided copyright issues. They may have avoided the original sound recording, but that doesn’t clear the rights to the composition.
Before releasing a song, if you have genuine reason to suspect that you may have copied protected material from another work, seek legal advice to establish whether permission is needed.
Getting inspired by the sounds of the continent is how we grow.
There is, however, a fundamental difference between being inspired by an artist’s style and reproducing that artist’s protected musical expression.
If you want to use someone else’s melody, figure out what rights are involved and obtain the necessary authorisation.
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