A right to copy? Comparing the approaches of France and the US

2016: a year of major sample cases in the US

2016 has been a year full of sample cases, particularly in the US, with Ed Sheeran facing a $20 million copyright infringement lawsuit and Madonna winning her lawsuit against VMG Salsoul LL. in June.

When the French courts in recent years have had to grapple with the issues of copying in music, the decisions have moved away from considerations of whether an average audience would recognise the copying to a more objective assessment.

While this trend will be welcomed by rights holders, with recent developments in other jurisdictions, it remains at least possible that the law could continue to evolve, in ways less favourable to those interests.

What is the issue?

Sampling is the physical copying of a short portion of sounds from an existing recording for use in a new recording, even where the copying is accomplished with slight modifications such as changes to pitch or tempo.

In the Madonna case, the US Court of Appeals for the Ninth Circuit ruled that the Madonna’s song Vogue did not infringe plaintiff’s copyrights to the Love Break composition since the copying was trivial. This case is particularly interesting since the Court created a circuit split by disagreeing with the Sixth Circuit’s ruling in Bridgeport Music, Inc. v. Dimension Films and concluding that there is a “de minimis” exception that applies to infringements of copyrighted sound recordings.

French case law

Although the French courts have not seen the same level of high-profile infringement cases that the US has this year, the issues involved have been looked at in recent years. Since the development of sampling, French judges regularly have to rule on whether a sample constitutes a copyright infringement or not.

Two cases are particularly interesting in this respect: the Erik Satie v Janet Jackson case of January 21, 2011 of the Paris Court of Appeals and the Zaka Percussion v. Björk case of February 22, 2006 of the Paris Court of First Instance.

• In the first case, the court had to analyze if Janet Jackson’s song “Someone to call my lover” infringed copyrights in “Gymnopédie no. 1” composition written by Erik Satie. It found that the instrumental melody played on the celesta was the same as the one in the first motive of the Gymnopédie no. 1 Moreover, the same key was used and the first four notes of Satie’s melody were to be found in the chorus. Since the characteristics elements of Gymnopédie no. 1 had been reused, the Court ruled that there was a copyright infringement.
• In the second case, the court had to assess if Björk’s song “I miss you” infringed copyright in a work by the band Zaka Percussion. The court observed that two measures of the percussions with the same rhythm had been used repeatedly for 1m50; and also considered that the second work tried to reproduce very closely the rhythmic basis constituting the entirety and the essence of the original work. The court therefore ruled that there was a copyright infringement.

The principle coming out of these cases is that the reuse of the characteristic elements that make the first work original in terms of melody, harmonic and rhythm, without the authorisation of the copyright owner, is constitutive of copyright infringement. This has not always been the case, however.

How do the French and American regimes compare?

At a basic level, the French usual criterion for copyright infringement has traditionally been the same as in the US: for an unauthorized use of a copyrighted work to be actionable, the use has to be significant enough to constitute infringement. This means that a copyright infringement requires a copying but also that the average audience recognises the appropriation. This principle reflects the legal maxim, “de minimis non curat lex” (“the law does not concern itself with trifles”).

This criterion does not seem very protective at first glance for the copyright owners, for the following reasons:

• First, in establishing a threshold, copying as such is not forbidden: copyright owners do not have the certainty that any copying will necessarily be an infringement of their rights.
• Second, in referring the test for the appropriation to an average audience, the copying of elements of the music may not be recognised. Even if the average audience might not recognize the use, experts may recognize it. For example, in the Janet Jackson case, because of the partial use of the chords, not particularly highlighted as they aren’t sung by Janet Jackson but instead accompany the chorus, and because of the rhythm, creating a false acceleration, it is very unlikely that the average audience would recognize these accords, even if they would perceive it unconsciously.

Looking, then at the French case law, this criterion grounded on recognizable similarity (thus subjective) seems to have been abandoned in favour of the sole criterion grounded on a technically established similarity (thus more objective).

Will the French law evolve further?

Although the recent decisions of the French courts have been more favourable to rights holders, we are not shielded from another evolution, possibly one more favourable to users of samples, as happened in the US with the Madonna case. Indeed, with the Kraftwerk case in Germany, which ruled against there having been a copyright infringement, on the basis of a balance between copyrights and creative freedom (see our article here), it is not impossible that the criterion established by French case law regarding copyright infringement will also evolves further, pushed by the European principles of a balance between rights.