Singer Aitana’s latest song, Las Babys, is set to become one of the summer hits. And it so happens that the single includes a part of Whigfield’s “Saturday Night,” the well-known 90’s song whose quirky dance to the rhythm of “dee dee na na na” was a hit in discos and at parties. The references are so clear that there is no shortage of those who have directly wondered if it is plagiarism. However, despite the fact that the record company (Universal Music) has not made a decision, it is safe to assume that everything is at stake in the reinterpretation of “Aitana” in accordance with the protection of intellectual property rights. Typically, these agreements are confidential and only come to light when a legal dispute arises.
The use of song fragments as a homage, commercial hook, or creative speech is more common than it seems and finds its maximum expression in the sampling technique. The example (example in English) consists of a kind of “cut and paste from one recording to another”, explains Santiago Bernal, IP and IT legal advisor at Sympathy for the Lawyer, a law firm specializing in music. The golden age of sampling typically falls in the late ’80s and early ’90s, says Javier de Torres, an intellectual property attorney. “Its development and splendor are linked to hip-hop culture and groups like Public Enemy or Beastie Boys. Everyone took what they wanted and created their own sound collage at will,” says the lawyer.
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Bernal points out that these iconic records would be completely unfeasible today. In order to legally reuse even the slightest discernible original fragment or phonogram (recording) and avoid a multi-million dollar lawsuit, it requires the approval of the work’s owner or owners and the negotiation of the appropriate usage licenses. In the case of the sample, the use of the composition (the exploitation rights of which usually lie with the publisher) and the recording (owned by the production company, usually the record company). A process that, depending on the case, can be very time-consuming and expensive and in which the lesser-known artists are at a disadvantage, emphasizes the music producer and DJ Andrés de las Heras Drummie.
As lawyer Jacobo Teijelo of the law firm Legal & Arts (Cultural Lawyers) explains, licensing agreements typically involve signing the payment of “fees or royalties” for which there is no prior tiering. In practice, according to Javier de Torres, a “market criterion” is used and royalties or percentages are required. When there are multiple parties, Santiago Bernal adds, a “most-favoured-nation clause” is usually included, with all the above offers matched.
There are almost always nuances in the law. First, the Court of Justice of the European Union has relaxed the rule that something has to be paid for every reproduction. In the Pelham case in 2019, the German techno duo Kraftwerk stood against Pelham GmbH for using a two-second excerpt in the song “Nur Mir”. The court clarified that “anything that is recognizable is considered a reproduction, regardless of the length of the sample,” says Teijelo. So if it is not identifiable or the artist falsifies it to such an extent, the right of the phonogram owner is not violated.
Experts agree that the “Las Babys” case is not an example, but a reinterpretation of the original melody of the Whigfield theme. That’s why, explains Bernal, “they had to get permission for their adaptation or transformation.” On the other hand, since there is no copy-and-paste, “you don’t have to pay to use the sound carrier,” the expert clarifies.
Second, you don’t need permission every time you use a few bars of a song or a signature rhythm. The artist is free if this use falls under one of the intellectual property exceptions provided for in the 1996 Act, for example a parody or a quotation. And here the melon of casuistry opens.
winks
One of the most paradigmatic cases in this area was Aserejé, a 2002 song whose chorus is a phonetic interpretation of some verses from Rapper’s Delight by the group Sugarhill Gang. In 2010, a commercial court in Madrid ruled that Las Ketchup’s song was an original and that the owners of the hip-hop single, released in 1979, should not be compensated. For the judge, the composer introduced a ‘minimum citation or incantation’, which meant fair use (free use) of the previous work. A “mixbox” concept imported from the US and not found in Spain. And it is that appointment in domestic law is a very narrow area, requiring “teaching or research purposes”, which the Pelham case-law stresses by acknowledging that it is “an intellectual confrontation”.
According to De Torres, wind plays a role in sampling and dialogue between works. If circumstances allow, he emphasizes, the musician can rely on the quote or “wink”. What is known in the Anglo-Saxon market as “interpolation” of what is full, for example Beyoncé’s latest album (Renaissance). As Drummie puts it, “Rehashing and remixing is a huge part of the sonic identity of our generation, so steeped in nostalgia.”
The “copyright” of the lyrics
There are songs that incorporate phrases from previous ones. Such is the case with Corazón sin vida by Aitana and Sebastían Yatra. “Why did you heal me when I was wounded when today you leave me a lifeless heart again?” is almost identical to the expression used by Alejandro Sanz in Corazón partío. In these cases, an authorization and usage license must be applied for. On the contrary, explains Jacobo Teijelo (Legal & Arts), letters or commonly used concepts have no protection and lack sufficient originality, such as the phrase “win the lottery” used by Camilo in Índigo and Yatra in red high heels .
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