Atty. GİZEM DURU
Law No. 5846 on Intellectual and Artistic Works defines music as “all kinds of verbal or non-verbal compositions”. Verbal and non-verbal compositions are included within the scope of the Law without any distinction in terms of their protection. In non-verbal musical works, only the compositions are protected, whereas in verbal musical works, both the lyrics and the composition are protected separately as musical works. Non-verbal music is a type of music that is not vocalized with any lyrics and has a certain rhythm. The developing digital world has brought with it a change in the music market, and in this context, the field of rap music, which we should mention because it is a trend today, has undergone a radical change. Today, while the artists create the lyrics of the musical art they perform from their own pens, they use different methods in the production of the wordless music part called “beat”. Within the scope of this article, we will discuss the legal classification of instrumental music in general or wordless music as it is known, the issue of copyrights and the use of “Sample”, which is a current problem in the music market.
Although it is widely used especially in rap music today, “Sample” or “Sampling”, which is preferred in every music genre, is a frequently used practice in music production. Sampling is the use of ready-made sounds in the digital environment or the use of the recorded soundtrack of another musical work in the new composition to be created. Sampling method, which is very helpful for artists in terms of application, brings along many copyright problems. Artists who are confronted with the use of a part of their beats in another work under the name of sampling, take legal action on the grounds of copyright infringement. In this framework, our priority with our article explaining the issues to be considered in the Sampling practice is to prevent artists from facing any legal issues while creating a new work.
The artist who wants to benefit from sampling must first obtain permission from the copyright holder, i.e. the artist whose work will be used, to use the section in question. Failure to obtain permission will not only violate copyright but will also expose the artist who has created work with the Sampling method to compensation lawsuits. In addition, in the event that a section is taken and modified and used by sampling method, processing work will arise. The right of processing is one of the financial rights of the original author and it means manipulating and transforming it into another work. Therefore, although a different work is created by processing the registered work, permission must be obtained before processing the work in any case, since the original author is the copyright owner.
In order for production to be considered as a musical work under the Law on Intellectual and Artistic Works, the author must be original and create creative and innovative work. A work that meets these conditions can benefit from the legal protection provided under the above mentioned Law. The Law on Intellectual and Artistic Works defines a derivative work as an intellectual and artistic musical work that is created by making use of an existing piece, is not independent from the original composition, but bears the characteristics of the author. According to this definition, in order for the artist to not face a copyright problem in the Sampling application, the sampled part in question must be originalized by using the specificity and creativity of the artist who has worked on the piece.
The doctrine of Turkish Law also supports this view, stating that “merely changing the sound or giving it another value cannot be considered as a derivative work since it is a routine task and does not involve innovation”. As we have explained in detail above, in the event that a different work is processed and used with the Sampling method, the artists must first obtain permission from the copyright owner and add innovation and creativity to the part to be used in the work in order for it to be considered as a derivative work in accordance with the Law on Intellectual and Artistic Works. Thus, artists will both benefit from the advantages of sampling and will not cause any violation of rights.
Today, rap music artists, who use lyric writing effectively, reveal their originality and creativity with their own pens; while in the “beat” part, they make extensive use of sampling. In this application method, it is seen that artists use someone else’s work in their own music without observing copyrights and without obtaining permission from the original author. For this reason, rap music artists especially prefer foreign music. Sampling, which is a trendy practice in the current music market, provides many advantages to artists in the short term in terms of application, but in case of copyright infringement, it may cause artists to face serious legal issues in the long term.
As ECY Law team, in this article, we have included the legal issues that may arise from Sampling, which is one of the most widely used methods in the field of wordless music today, and the important points to be considered. For this reason, it is important for copyright owners to receive consultancy and legal protection services from expert lawyers in order to avoid any violation of rights. At this point, as ECY Law, we would be pleased to answer your questions with our expert staff and to provide you with legal counseling and advocacy services.
ERSOY, İ. (2012, Instrumental Music in Turkish Music Culture, pp. 91-98.)
Öztan, Work of Process in the Law on Intellectual and Artistic Works, p.227
