Copyright is often seen as protection for artists and other creative individuals, but more realistically it tends to protect those with the deepest pockets. Even big name artists are now getting hit with copyright violations, and the oft-quoted “what about the artist” mantra is becoming less relevant through the prism of modern day music copyrights. Artists are being sued for using small audio samples in popular works, sometimes even decades after the infringing work was published.
Earlier this year, the Australian rock band Men at Work were ordered to hand over 5% of royalties for their most famous song ‘Down Under’ after a judge ruled that the flute riff in the song was based on 1934 composition ‘Kookaburra’.
Of course, the infringement was so great that no-one noticed until a TV music quiz show brought the idea into peoples heads – 28 years after the song was published. If it really was a large infringement, then it should really have been noticed 28 years and hundreds of thousands of copies earlier – or at the very least when it was performed at the closing ceremony of the Sydney 2000 Olympic Games. But all that time, nobody noticed.
These belated lawsuits are happening more often nowadays, and not just down under. In the US, a company called ‘Drive in Music Company’ (DIM) has been adopting the same sorts of tactics over the last few months. The company sued a slew of people over a Super Bowl advert for Kia, with The Hollywood Reporter listing targets for that one advert alone as “Kia, CBS, the NFL, ad agency David & Goliath, Ninja Tune Records and various other parties”.
While that particular suit was filed in a timely fashion, the same outfit has now started on a case that has a strong resemblance to that built against Men at Work. DIM is now claiming infringement on a song that’s old enough to vote.
Cyprus Hill’s ‘How I Could Just Kill a Man’ was released in 1991 as part of a double single as well as their debut album. As with most of their albums, the band uses samples from a number of songs in their own tracks. One of these samples comes from the song ‘Come on In’ by Music Machine that was released in 1966, and that’s the subject of the lawsuit brought on by Drive in Music Company.
The Alleged Infringers
All existing copies of Cyprus Hill’s self-titled (double platinum) album will be impounded and sales halted if DIM gets its way, and in addition the company wants damages for the losses they suffered.
The reason for the complaint? According to ContactMusic, DIM bosses were alerted to the alleged sampling after seeing copies of the song for sale on Apple’s iTunes. The case against Cypress Hill is not the only suit they’ve filed; a week earlier they filed against Leaders of the New School and Busta Rhymes over samples on another 1991 album, Future Without a Past.
After almost 20 years the only reason for DIM to want to sue now is because it’s potentially profitable. The longer they waited, the better. The Kookaburra precedent (albeit in Australia) helps make their case.
However, leaving the infringement for so long without action may constitute de-facto acceptance and licensing. Especially as, unlike Kookaburra, Cyprus’ use was obvious (so obvious, it’s been referenced on the album’s wiki page for at least 4 years). That said, it is doubtful that this will matter much in a US court where copyrights are treated with a near holy reverence, and infringement of such is treated as a cardinal sin, racking up penalties equivalent to major crimes.
Unless Cyprus can provide a licensing agreement, DIM may get what they want. When the writers of the US Constitution see how the progress clause has been abused, the least they’re likely to say, is “D’oh!”