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Massive fine in Denmark’s first ever ‘sampling’ copyright case
What’s the cost of stealing ten seconds of music? Over a million kroner it turns out. That was the verdict at the end of Denmark’s first ever music copyright case involving sampling that ended last week.
The verdict against electro group Djuma Soundsystem for using an unauthorised sample in their track ‘Les Djinns’ has shocked many inside and outside the music industry. Speaking to theCopenhagen Post, former member Lars Bjarno accepted that what they did was stupid, but still cannot understand the size of the fine: 747,182.82 kroner plus costs.
“We were young and stupid,” Bjarno said, adding that they had tried to find a way to reimburse the copyright holder. “We want to pay. But we don’t want to pay a ridiculous amount that we haven’t even made on the record.”
In 2003, Lars Bjarno, Mikkas Skulstad and Frantz Vilmer Thomasen released ‘Les Djinns’ as electro group Djuma Soundsystem. The track used a looped (repeated) sample from an obscure jazz-fusion track called ‘Turkish Showbiz’ from the LP ‘Marmaris Love’ by Atilla Engin. The LP was bought in a second-hand shop for ten kroner by Thomasen. Not wanting to put off their record label, EMI, they lied and said the song did not use any samples. It was released and sold 150 copies.
In 2006, after being dropped by EMI, they signed to Berlin-based label Get Physical. Their new label thought ‘Les Djinns’ had potential and asked if they wanted to rerelease it.
“That’s when we got cold feet,” Bjarno explained. They set about trying to track down Atilla Engin to get the sample cleared. Originally from Turkey, Engin had lived in Denmark throughout the ‘80s where he recorded and released ‘Turkish Showbiz’. The group eventually discovered that he had moved to Brazil and through an email correspondence started to discuss handing him a share of the royalties through the Danish music rights management organisation Koda.
Court documents reveal how over the next few years the three members of Djuma Soundsystem attempted to strike a deal with Engin. In 2006 Engin agreed over email to let Djuma Soundsystem use the sample, but never replied to a follow-up email that contained a written contract. Without it, Engin could not claim his share of the money. Koda, after listening to the track, thought Engin was entitled to 20 to 30 percent of the royalties.
But in 2008, it was revealed that a man called Per Meistrup actually owned the rights to the track. Bjarno emailed Meistrup acknowledging that what they had done was wrong and asked if they could strike a deal. Attempts to settle out of court failed, and in early 2009 Meistrup sued.
Skulstad, the one remaining member of Djuma Soundsystem, Bjarno, and Thomasen represented themselves during the case. On September 26 they lost and were ordered to pay Meistrup and Engin 747,182.82 kroner within two weeks as well as 250,000 kroner compensation for investigative costs and 111,139 kroner court costs. In total, they owe 1,108,321.82 kroner.
In some ways the case is uncomplicated. Djuma Soundsystem sampled a song without permission. The sample was then used in a new song that they registered as their own with Koda. They then earned money from the song using the stolen sample without crediting Engin’s contribution.
But according to Bjarno, the question is not whether Engin is owed money and credit for ‘Les Djinns’, rather it is how much.
Sampling is a common feature of modern music. It involves taking snippets of other people’s music and using it in your own, often altered to the extent whereby its original source is difficult to hear. Bjarno argued that this is normal practice not only inmusic, but in most creative industries.
The sample used in ‘Les Djinns’ was the guitar intro to Engin’s ‘Turkish Showbiz’. The 10-second sample is looped and played at length throughout the track. According to Skulstad’s statement to the court, while the sample is a prominent part of the melody, it is only one of about 50 instrumental layers.
The court, however, viewed the track differently. Instead of regarding ‘Les Djinns’ as an original song that used a sample from ‘Turkish Showbiz’, the court decided ‘Les Djinns’ is in fact a rearrangement, or remix, of ‘Turkish Showbiz’. In which case Djuma Soundsystem are only entitled to 16 percent of the royalties. Engin and Meistrup now own – and are owed – 84 percent of the royalties, far more than the 30 percent originally calculated by Koda.
The case is not entirely straightforward, however. Bjarno claimed they only earned 140,000 kroner on ‘Les Djinns’, while Meistrup alleged they earned 848,000 kroner (the sum used by the judge). Meistrup also claimed to have spent between 500,000 kroner and 600,000 kroner and lost about 40,000 kroner in earnings pursuing the case. But with emails showing that the members of Djuma Soundsystem actively sought to strike a deal outside of court, these costs are hard to fathom, especially when they are not broken down in the court documents.
The major issue of the case concerned the definition of a sample is and whether the judge understood the nature of modern music. While Djuma Soundsystem argued – with support from Koda – that the sample was 10 seconds long, Meistrup argued in the court documents that “all of [Engin’s] original composition is used, up to three minutes play time.”
Ralf Christensen in newspaper Information criticised the judge’s lack of understanding after the verdict.
“It’s a harsh verdict not only because of its economic burden, which may affect Danish music in a way similar to what we’ve seen happen with American hip hop. It is also an expression of the court’s lack of understanding for the development of modern music.”
Being the first case of its kind to ever make it to a Danish court, the judge had nothing to refer to, however. And with Djuma Soundsytem choosing to represent themselves and appearing – by Bjarno’s own admission – under prepared, the judge’s decision to side with the plaintiff is not unsurprising.
Djuma Soundystem have now hired a lawyer and are appealing a judgement that Bjarno believes could stifle Danish music if left unchallenged.
“I don’t want to be broke for the rest of my life. But the judgement sets a precedent for all the other people facing cases like these,” Bjarno said.
“What it all boils down to is let bygones be bygones. There’s some money here; let’s share it in a fair and decent way. I think we should pay and acknowledge that we made a mistake and we’re sorry.”
You decide: listen to the two songs and compare for yourself: