Can’t Tell Him Nothing: An Opinion on the Suit Against Kanye for Sampling

Recently, it has been widely reported that Bishop David P. Moten,  a Texas pastor is suing Kanye West (“Ye”) for copyright infringement over allegations that Ye used unauthorized samples of a recorded sermon in the song “Come to Life”. The song is one of the hit tracks in his album “Donda”. The pastor claims that roughly 20% of the said song is from one of his sermons and it was used both at the very beginning and again throughout the song. While the song is approximately five minutes and ten seconds in length, the pastor alleged that approximately one minute and ten seconds of his sound recording is sampled directly from his sermon. Of course, I know I cannot tell Kanye nothing (as the title of this article suggests), but still, here is my opinion.

It is not the first time a pastor has spoken up about the unauthorized use of their sermon. The famous Bishop T.D Jakes, in 2014, had threatened legal action against rap stars Kendrick Lamar and Young Jeezy for using a 20-second snippet of his sermon in the intro to the song “Holy Ghost”.

Sampling is common in hip-hop. In fact, many scholars have argued that sampling other people’s work is how hip-hop started. As such, the practice of getting clearance to use a work is well-known. However, the use of sermons as samples is not so popular. Perhaps that is why many seem to be surprised that sermons, too, can enjoy copyright protection. This is especially because the general belief is that the intention of religious organizations such as churches with respect to their sermons is to freely distribute its content to expand their ministry’s impact.

The issues that could arise in the case against Ye may include whether the use of Moten’s sermon constitutes an infringement and when music sampling can be considered fair use. This is a brief opinion on these questions.

With respect to music sampling, courts across the world are generally hostile to a fair use defense when it comes to sound recording copyrights.

In Europe, the European Court of Justice has touched on the issue of sampling. Among other things, the court has held that, when it comes to sampling a sound recording—however short a snippet a sampler uses—they would still need approval from the copyright owner of the original track.

“Phonogram producers have the exclusive right to authorise or prohibit reproduction in whole or in part of their phonograms. Consequently, the reproduction by a user of a sound sample, even if very short, taken from a phonogram must, in principle, be regarded as a reproduction ‘in part’ of that phonogram so that such a reproduction falls within the exclusive right granted to the phonogram producer”.

On the issue of the artistic freedom of the sampler, if they rework the sample so that it is unrecognisable in the final track, it would be acceptable. In the words of the court: “Where a user, in exercising the freedom of the arts, takes a sound sample from a phonogram in order to embody it, in a modified form unrecognisable to the ear in another phonogram, that is not a ‘reproduction’”. That conclusion is necessary, the court then added, to properly balance the rights of an intellectual property owner with the rights of artistic freedom.

As religious works are copyrighted in the same manner as any other type of work, as long as they meet copyright requirements, they will be protected. Accordingly, in the EU, the court would most likely find that Ye’s use constitutes an infringement, seeing as the sermon was not only reproduced in part, but its use is also recognizable to the ear.

In the U.S., would this music sampling be deemed fair use or an infringement?

Music sampling has been defined as mechanically or digitally using “a portion of a previous sound recording in a new recording. The used portion of existing copyrighted material, called a “sample” is generally short, ranging from less than one second to approximately twenty-five seconds.”

As Ye is unlikely to be able to argue any form of license successfully, he might have to resort to the fair use defence. Section 107 of the Copyright Act provides the framework for determining whether an act which would ordinarily amount to copyright infringement constitute fair use.

Enumerated categories: this provision identifies certain types of uses – such as criticism, comment, news reporting, teaching, scholarship, and research – as examples of activities that may qualify as fair use. The alleged infringement in this case is not within anyone of the enumerated categories in this section (music) therefore, nothing here applies. Accordingly, the defendants would have to resort to the four-factor test provided in section 107 to determine whether there is indeed fair use.

Consideration of the following four factors are used in evaluating a question of fair use:

Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes: Here, the Courts look at how the party claiming fair use is using the copyrighted work, and are more likely to find that nonprofit educational and noncommercial uses are fair. However, this does not mean that all nonprofit education and noncommercial uses are automatically fair and all commercial uses are not fair; rather, the courts will have to balance the purpose and character of the use against the other factors. In addition, “transformative” uses are more likely to be considered fair. Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work.

In my opinion, Ye’s song adequately transforms the sermon, giving it a totally different character/feel. However, there is clearly a commercial element here, as the song is a hit and so he must have generated revenue from exploitation of the work. On a balance, this factor goes against fair use.

Nature of the copyrighted work:

This factor analyzes the degree to which the work that was used relates to copyright’s purpose of encouraging creative expression. Thus, using a more creative or imaginative work (such as a novel, movie, or song) is less likely to support a claim of a fair use than using a factual work (such as a technical article or news item). In addition, use of an unpublished work (Harper Row v The Nation) is less likely to be considered fair.

Applying this rule to the facts, it is submitted that the sermon, having been recorded/published, may be considered a creative work, and could fall within the traditional core of copyright protection. On a balance, I would argue that this factor goes against fair use.

Amount and substantiality of the portion used in relation to the copyrighted work as a whole: Under this factor, courts look at both the quantity and quality of the copyrighted material that was used. If the use includes a large portion of the copyrighted work, fair use is not likely to be found. And if the use employs only a small amount of copyrighted material, fair use is more likely. However, some courts have found use of an entire work to be fair under certain circumstances (like the case against the band, Green Day where they used someone’s picture; see also Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013)). And in other contexts, using even a small amount of a copyrighted work was determined not to be fair because the selection was an important part a.k.a. the “heart” of the work.

Applying this to the facts, Ye is likely to argue that only a small amount of the sermon was used and so it should be negligible. However, it can be said that the quality of the work trumps the argument for quantity. In light of the Green Day case and Cariou v Prince, it is submitted that this could go either way, but more likely against fair use. See also the Mike Tyson tattoo case.

Effect of the use upon the potential market for or value of the copyrighted work: Here, courts review whether, and to what extent, the unlicensed use harms the existing or future market for the copyright owner’s original work. In assessing this factor, courts consider whether the use is hurting the current market for the original work (for example, by displacing sales of the original) and/or whether the use could cause substantial harm if it were to become widespread.

Ye’s use is not likely to be found to be competing with or displacing the income that may be generated by the original (which at any rate ought not to be commercial). In fact, it may increase the value of the work. The facts in this case can be distinguished from the facts in Harper Row v The Nation, where there was a cancellation of a publishing contract because of the unauthorized use. The pastor may have a hard time proving what he has lost.

In addition to the above, other factors may also be considered by a court in weighing a fair use question, depending upon the circumstances (the intention of the parties has been considered in some decisions). Courts evaluate fair use claims on a case-by-case basis, and the outcome of any given case depends on a fact-specific inquiry. Therefore, there is no absolute formula to ensure what may or may not be used without permission. But long story short, I will place my bet on Ye.

In the US, however, Section 114 leaves the ‘sound-alike’, or “replay” avenue available to musicians who might otherwise choose to sample a sound recording. In other words, an artist who wishes to sample a snippet of a song can instead replay that snippet herself, or hire a session musician to do so, without any risk of infringing on the sound recording copyright for that song. Although Ye did not hire performers to redo the sermon/prayer bit in the song (which may or may not qualify for copyright protection). Rather, he used the actual recording.

Conclusion

Religious works are copyrighted in the same manner as any other type of work. Since most of the world’s major religions have been practiced for over a thousand years, their original scriptures are in public domain. But this does not extend to sermons or lectures of the clergy. Notwithstanding the description/classification by many of Ye’s song as ‘gospel’, this writer, though a Kanye fan, submits that the court would most likely find that an infringement has occurred (should it get to trial). Thomas Merton said “A bad book about the love of God remains a bad book.” In the same vein, an infringing song about finding God remains an infringing song. The right to use a sermon for a work should be sought and obtained from its rights holder just as is done for songs.

As as an aside, the general public should be entitled to expect some good faith from churches as well. As they do not need a performance license to play/perform copyrighted music in a worship service (in most jurisdictions), they ought to do a better job in respecting copyright laws especially toward those who earn an income proclaiming the gospel through the production of creative content.

Thankfully, even if Ye loses this case, that would not be his biggest regret since, according to him, that spot has already been taken by the fact that he will never see himself perform live.

About Seun Lari-Williams 15 Articles
Called to the Nigerian bar in 2014, Seun has extensive experience working as a litigation lawyer in Nigeria and as an IP Consultant. He has worked closely with diverse clients in the entertainment industry, helping them innovate faster while protecting their IP. He has also garnered experience working with a patent law firm in Brussels, Belgium. He studied law at the University of Lagos, Nigeria and obtained an LL.M in IP & Competition Law from the Munich Intellectual Property Law Center, Germany. Seun is the 2021 winner of the ALAI European Author’s Rights Award.

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