Wednesday, October 2, 2019

Can a cover version have more than one original?

At first sight a trivial question which you would answer with a clear "no" in the first impulse. The original only exists once. You can argue which song came out first, but that one is the original.

So far, so simple – but unfortunately it's not that simple in the world of music. The best example that currently causes us headaches in the editorial staff are the so-called "Sanremo cases" in our database. In the early decades of the Sanremo Music Festival, it was organized from the beginning as a composer and not as an performer competition. It was common that a song was presented by two different artists to the audience and the jury. The award went to the composer and to the song, and thus to both performers.

Many songs of the festival – and not only the winning titles – became world hits and thus were covered many times. This of course brings us to the dilemma that we can't determine exactly which artist sang the original. So far, we have avoided this decision, especially since in the old version of our database it would have been very difficult to register two originals for cover versions. So there are currently 344 "Sanremo cases" without directly assigned performers in the database where the two performers are mentioned only in the comment.

In theory it is possible to allow two originals, but do we want that? Not really, but of course we try to find a feasible solution. We already had the idea to take the song which was performed first at the festival as the original and its second performance with the other artist as the cover. But unfortunately the sources available on the Net don't give any reliable information about the order in which the songs were presented.

Hence our question to all music lovers who know and use our site: What do you think about the idea that there could be two originals? Or should we stick to the current strict principle and simply choose one original? Is there anyone among you who has more detailed information about the Sanremo Music Festival, someone who perhaps knows sources that document the order of appearances?

The "Sanremo cases" are not the only ones that sometimes make us wonder. In the Disney cartoon "Aladdin" the song "A Whole New World" is performed by Lea Salonga and Brad Kane. But it's played a second time, at the end of the movie during the whole time of the credits. But this time Peabo Bryson and Regina Belle are the artists. In this case it was relatively easy for us after a short discussion to enter the version by Lea Salonga and Brad Kane as the original as their interpretation is played in the film before Peabo Bryson and Regina Belle. The soundtrack album with both songs was released after the movie premiere and so there was also a disc for the cover version.

It gets funny when the soundtrack album appears before the movie premiere. And there is such a case, even with the similar constellation of a double interpretation. In the Disney cartoon "The Lion King" there is the song "Can You Feel The Love Tonight" performed by a whole ensemble of singers.

Now the soundtrack album was released on May 31, 1994, but the movie premiere was on June 15, 1994. So for us the album counts as the sound carrier for the original song. The only problem is that both on the album and in the movie the song appears a second time, again during the credits. This time it was sung by Elton John together with another group of artists.

Since the album was released first, we can't say: In the movie the song runs at the end, so this is the cover version. Someone can easily play the last song of the CD at the beginning and listen to the last track first. But in this case we have the good "fortune" that the version with Elton John has the title "Can You Feel The Love Tonight (End Title)", so it is really a cover version for us, even if it is on the same record. And like so many cover versions, this one has overtaken the original in popularity.

Dear music lovers, this little excursion should just illustrate that it is not always that easy to determine what is the original and what is the cover version. But our question to the COVER.INFO community remains: Can you help us with information regarding the "Sanremo cases"? What's your opinion about the approach to relate a cover song to two originals?

We hope for a lot of feedback, there is enough space for comments on this article.

Tuesday, August 6, 2019

Katy Perry must pay compensation in the millions

A Los Angeles court awarded 2.7 million dollars as compensation to rapper Marcus Gray a.k.a. Flame because Katy Perry used an element from his 2008 "Joyful Noise" in her 2013 song "Dark Horse". The record company is said to have earned 31 million dollars, and Katy Perry 3.2 million dollars from the number 1 hit. The record company now has to pay 1.2 million dollars, Katy Perry 0.55 million dollars, the rest has to be provided by other partners.

In the legal dispute that has lasted since 2014, the jury came to the conclusion that the copied beat is an independent work, whereas Perry's lawyer had denied that the beat had the necessary level of creativity. Perry had denied having known the song. (Source [German])

Tuesday, July 30, 2019

European Court of Justice: Sampling is allowed if it is not recognizable when listening

Once again there is a new judgement in the long lasting dispute about the sample in Sabrina Setlur's song "Nur mir" which was produced by Moses Pelham in 1997. We've been reporting about the case since 2008. This time, no lesser than the European Court of Justice decided after the German Federal Court of Justice (Bundesgerichtshof) had referred some questions about the interpretation of the Copyright Directive (Directive 2001/29).

Members of the German electro band Kraftwerk had sued because Pelham had sampled about two seconds of a rhythm sequence from the title "Metall auf Metall" (Metal On Metal) and placed it under the title "Nur mir" (Only Me) in continuous repetition, although they would have been able to play the adopted rhythm sequence themselves. They are of the opinion that Pelham infringed their copyright-related right as a phonogram producer. Kraftwerk demanded prohibitory injunction, damages, the provision of information and the surrender of the phonograms for the purposes of their destruction.

The European Court of Justice (29 July 2019, C-476/17) ruled that the reproduction by a user of an audio fragment of a phonogram – even a very short one – is in principle to be regarded as a reproduction "in part" of that phonogram and is therefore subject to the phonogram producer's rights. If, however, a user takes an audio fragment from a phonogram in the exercise of freedom of the art in order to use it in a new work in a modified form which cannot be recognized when listening to it, such use does not, in the Court's view, constitute a reproduction of the phonogram. According to the Court, the technique of electronically copying audio fragments (sampling), whereby a user takes an audio fragment from a phonogram – usually with the aid of electronic equipment – and uses it to create a new work, is an artistic form of expression which falls within the freedom of the arts. The Court of Justice justifies its weighting in favor of the freedom of the arts by understandably stating that the opposing interpretation would, in particular, enable the phonogram producer to oppose a third party taking an audio fragment – even a very short one – from its phonogram for the purpose of artistic creation, even though such sampling would not interfere with the opportunity which the producer has of realizing satisfactory returns on his investment. In other words: Just because a song is sampled briefly doesn't mean that nobody wants to buy the original song anymore.

When excercising freedom of the arts, one may therefore, when creating a new work, take an audio fragment (sample) from a phonogram and change it in such a way that it is not recognizable in the new work when one listens to it.

In addition, the European Court of Justice found that the right under German copyright law (§ 24 UrhG) to create an independent work in the free use of another's work and to publish and exploit it without the consent of the author of the used work is contrary to the Directive because it is not an exception to copyright allowed under the Directive. Pelham could therefore not rely on the corresponding provision of German copyright law.

Furthermore, the Court found that the rules on quotations does not apply to those samples which could not be identified in the new work.

It is now up to the Federal Court of Justice to make a decision in the case on the basis of the questions answered by the European Court of Justice.