Originality and innovation are two of the most integral elements of music production; it’s unconsciously expected of the artistes to provide work completely unique to them in the most creative ways possible. However, such musical creativity doesn’t emerge from thin air.
Contrary to popular belief, the earmark of many artists deemed as ‘creative geniuses’ isn’t solely dependent on their innate talent, but also their ability to let their vision feed off their influences. Fela Anikulapo-Kuti’s status as the forefather of Afrobeat was only made possible due to the plethora of sonic inspirations woven together to formulate the genre we know today.
In its essence, musical creativity exists on the notion that nothing is new under the sun, and innovation is simply an evolution from pre-existing music.
In a bid to pay homage to their influences, artists often employ certain elements to actualize their vision. Sampling, as a technique, is a necessary tool in the creative process of music production. It often involves reusing a portion of a pre-existing sound recording in another recording, additionally manipulating it to fit the present context.
Over the years, sampling has offered creators the room to skillfully marry their influences with their imaginative prowess. Sampling is a vital foundation for contemporary music; hip hop emerged with producers sampling funk and soul records, particularly drum breaks, to be rapped over in the 80s. Sampling has since influenced all genres of music, particularly electronic and pop.
Aside from providing leeway for creators to express their ingenuity, there are several other merits to sampling in music. Incorporating a sample in one’s music opens up the existence of certain classical sounds and songs to a wider audience; inherently generating new interest in the original artist’s work.
A prime example of this is that of Aerosmith; the band struggled with drug abuse for years but their career was almost instantly recovered when rap group Run-D.M.C covered their song ‘Walk This Way’ in 1986. Sampling also generally elevates the quality of music, sonically.
Song creation can be viewed as a puzzle with the melodies, instruments, lyrics and vocals. Sometimes the right sample may just be the missing piece to complete the puzzle and take the song to the next level. All these reasons and more, have helped to establish sampling as one of the most powerful creative catalysts in music today.
Nevertheless, as sampling is oftentimes in its own right, a necessary tool to flex one’s creative prowess, it is imperative to recall that the sample in question is a product of someone else’s hard work. And in order to incorporate a portion of their work – no matter how little – into one’s music, it is crucial to seek legal permission from the original creator (through a process termed as clearance), every single time.
This is where copyright laws – laws protecting ownership and usage rights for creators – come in to place. Unbeknownst to many, according to the U.S. Copyright Act of 1976, a piece of work is actually protected by copyright laws the moment it is created and ‘fixed in tangible form’.
The moment you take an idea and turn it into a song that can be played, your work is protected by copyright upon its creation.
The rules around sampling music have been mystifying musicians since the enactment of the Copyright Act. While copyright laws regarding how to clear a sample often seem straightforward when discussed in the abstract, the ability to tell wrong from right when you’re experiencing a situation first-hand seems to take a perplexing turn for many musicians.
For a while, the ethics around sampling unravelled and ‘how much sampling can I get away with?’ was the order of the day. That is until the famous 1991 case in the U.S between songwriter Gilbert O’Sullivan and rapper Biz Markie; a true ethical reset for the music industry, changing the way sampling was approached. Since then, failing to adhere to copyright laws has proven to evolve into an expensive mistake even the most seasoned of musicians have been known to overlook, including De La Soul, Robin Thicke, and Radiohead.
In Nigeria, whether many want to admit it or not, sampling is a very much utilised tool in many artistes’ musical war chests. Works like Falz’s socio-politically charged project, Moral Instruction and Wizkid’s smash hit with Mt4y, ‘Manya’, are clear testaments that just like our western counterparts, sampling is a vital instrument in shaping our sound. That being said, what we do lack in this aspect, is a means of thoroughly regulating it.
As a former colony of Britain, Nigeria derives her copyright law from English law, whose Copyright Act of 1988 serves as the framework for the Nigerian Copyright Act (with the latest amendment in 1999). While it does state in this Act the legal implications of copyright infringement, the laws definitely need to be expanded.
Following the ongoing copyright infringement case against De La Soul in 1989, Turtles singer Mark Volman told the Los Angeles Times: ‘Sampling is just a longer term for theft. Anybody who can honestly say sampling is some form of creativity has never done anything creative.’ While the implied notions in this statement have already been debunked earlier on, looking at the state of sampling in Nigeria, it’s understandable why an artist may think such.
It’s often said ‘the easier the rule, the harder it is to uphold’, and for a country like ours with a myriad of loopholes in the Copyright Act, it’s no wonder many artists assume they can get away with intellectual theft because that is exactly what it is – stealing.
In 2018, Afropop superstar Tekno released his hit single, ‘Jogodo’, which accrued a fantastic response from music fans. Unbeknownst to some, Tekno actually sampled two different artists on that track; ‘Jogodo’, by Prof Linkin which was released in 2003 and ‘Kpolongo’ by Danfo Drivers which was also released in 2003. Following its release, there was an uproar from listeners who cried copyright infringement in the case that ‘Jogodo’ was a literal remake of ‘Kpolongo’ by Danfo Drivers.
Of course Tekno had done this without seeking or receiving permission of any sort. In an ideal judiciary system, this act would’ve been met with serious monetary consequences in the form of a lawsuit in favour of Danfo Drivers. Instead, the pair took to social media to express their dissatisfaction with Tekno’s actions via a viral clip of a Headies red carpet interview as they stated, ‘Tekno I’m not joking. You dey owe us, you go pay.’
It was later revealed that Tekno had reached out to the duo and they had settled the matter privately, with rumours of a two million naira compensation fee being paid. Upon hearing this, Prof Linkin then took to the media to express his dissatisfaction on being left out of the acknowledgment. As hilarious as the dramatic debacle was, one thing was made inherently clear – Nigerians aren’t aware of their intellectual property rights guided by the Copyright Act.
As useful as sampling presents itself in showcasing musical creativity, many artists tend to flee from it and understandably so; sampling is very tasking and quite frankly, very expensive. ‘When you’re putting together a budget for an album, you’re going to put together $100,000 to $150,000 in upfront fees to clear samples, if it’s an album filled with a lot of samples,’ Deborah Mannis-Gardner told Forbes in a 2016 Interview. Coupled with the incessant amount of approvals needed before a sample is completely cleared, it’s no wonder artists seek out other methods in flaunting their creative prowess.
Interpolation is one of such methods. In its essence, interpolation is simply a re-performed piece of recording meant to sound exactly the same as the original recording to avoid copyright clearances. While at face value, this may seem like a get-out-of-jail-free card for artists who want to avoid the hassles of sampling – but there’s a catch. You have to request and obtain permission from the original artist – as you should – every single time.
Many don’t know this but there are two copyrights in every ‘record’; there’s the recording made by the artist (which he/she generally owns), then there’s the underlying song or composition. The latter is typically owned by the music publishers. So in the process of interpolating lyrics/melodies, one is bypassing the original recording copyright but in failure to obtain permission for the song composition copyright, one can be subject to copyright infringement.
The Nigerian Copyright Act, of course, makes no room to accommodate these necessary laws and that’s why artists like Mayorkun are able to get away with songs like ‘Che Che’ (which interpolated lyrics from Sarkodie’s ‘Adonai’) and ‘Up to Something’ (which interpolated lyrics and melodies from Faze’s ‘Kpo Kpo Di Kpo’).
Davido’s 2017 smash hit, ‘Fall’ also amassed controversy as he was (rightfully) accused of interpolating lyrics and melodies from KojoFunds’ ‘Dun Talkin’, for which he allegedly didn’t seek permission. And in an ideal clime, M.I Abaga’s breakout hit, ‘Safe’ could’ve been rather tricky to execute due to the (admittedly creative) interpolation of lyrics from numerous other songs.
Another area in need of addressing is when an artist decides to record a cover of a song. As previously established, the rights to the sound recording and the rights to the song composition are two completely different copyrights.
In this light, according to the U.S Copyright Act of 1976, in order to record and distribute the song the music publishers own the rights to, they will need to obtain a Mechanical License. And in the case that the artist should want to shoot and distribute a video to this song, they will also need to obtain a Synchronisation License in order to obtain the right the lyrics synced to the video footage.
Of course there is no provision made for these in the Nigerian Copyright Act and that’s why artists like Fireboy DML are able to make covers and videos like his chart topping ‘Need You’ which is a cover of Ed Sheeran’s ‘Tenerife Sea’, with even the ‘producer’ of the song, Pheelz, passing off the beat as his own in an Instagram Live battle.
While there are countless cases of intellectual property theft disguised as sampling in Nigeria, it’s relieving to know that there are as well instances of successful sampling. Falz’s critically acclaimed fourth studio album, Moral Instruction, a socio-conscious attempt at political commentary aimed to embody the spirit of Fela Kuti in every way possible; hosting a myriad of cleared – emphasis on ‘cleared’ – samples from the Afrobeat pioneer in the project.
Afrobeat global icon Burna Boy has also showcased instances of well-executed sampling by paying homage to African legends, Angelique Kidjo and Fela Kuti with obtained permission.
‘Sampling provides an avenue for interaction between the past and the present, where older music gains a refreshed level of reverence and newer music pushes the boundaries of creativity forward by looking back’, Dennis Ade Peter wrote for The NATIVE earlier in the year. In this light, its agreeable that there are no limits to the expression of one’s dexterous innovation with sampling and its variants – as long as it’s done right.
It’s certainly evident that a review of the Copyright Act is long overdue, as there have been significant strides made technology-wise and in general human development which was not provided for in the act.
Moreover, moving forward, there should be adequate sensitisation of Nigerian artists by the Nigerian Copyright Commission about the nature of copyright and how to seek redress upon infringement. Our minds are our most powerful assets so any product birthed from our imaginative prowess should definitely be protected at all costs.