“Sample” leaves DJ in red for damages for infringement of rapper’s moral rights

“Sample” leaves DJ in red for damages for infringement of rapper’s moral rights

“Sample” leaves DJ in red for damages for infringement of rapper’s moral rights

Perez v Fernandez [2012] FMCA 2

In an Australian first, the Federal Magistrates Court of Australia has ordered an award of damages to an internationally renowned rap/hip-hop artist known as “Pitbull” (aka, Mr Armando Perez) for infringement of his moral right of integrity of authorship by a Perth DJ known as “DJ Suave” (aka, Mr Jaime Fernandez). This case is one of very few decisions to consider infringement of moral rights in Australia.

Author’s moral right of integrity

Part IX of the Copyright Act 1968 (Cth) gives authors of certain copyright works (including musical works) moral rights in relation to those works, one of which is the right not to have his or her work subjected to derogatory treatment (known as the right of integrity of authorship). Under the Copyright Act, a “derogatory treatment” means:

  • doing something to a work which results in a material distortion of, mutilation of, or material alteration to, that work that is prejudicial to the honour or reputation of the author; or
  • doing anything else in relation to a work that is prejudicial to the author’s honour or reputation.

“Sampling” of the Bon, Bon song

In 2008, Mr Fernandez arranged for Mr Perez to tour Australia and Mr Fernandez was to promote him. As part of that arrangement, Mr Perez gave Mr Fernandez an “audio drop” sound file of Mr Perez performing the words “Mr 305 [a self-reference to Mr Perez] and I am putting it right down with DJ Suave” to use to promote the tour. The tour was later cancelled.

In November 2010, Mr Perez released a song known as “Bon, Bon” in the United States. Mr Perez was the author of the musical work of that song. Sometime after receiving a copy of the Bon, Bon song, Mr Fernandez created an MP3 file of the song and deleted a prominent part of the lyrics from it, replacing it with the audio drop. He then uploaded the modified MP3 to his website where it was automatically streamed to users browsing the homepage. Mr Perez argued that those actions infringed copyright in the Bon, Bon song (owned by Mr Perez’s record label companies) and infringed Mr Perez’s moral rights.

Derogatory treatment of the song

On the issue of moral rights, Federal Magistrate Driver found that inserting the audio drop into the song made it appear as though Mr Fernandez was the subject of the song such that:

  • new listeners of the song would have presumed that the altered section formed part of the original song; and
  • repeat listeners would be left with the impression that Mr Perez had authorised the altered content of the song or that Mr Fernandez was mocking Mr Perez.

His Honour concluded that Mr Fernandez’s treatment of the song was “prejudicial to the author’s honour or reputation”. On the evidence, his Honour was persuaded that hip-hop artists go to great lengths to choose with whom they associate, those associations forming a central part of their reputation. Altering the song so as to (falsely) suggest that Mr Fernandez had an association with Mr Perez was therefore prejudicial to Mr Perez’s reputation. Consequently, Federal Magistrate Driver awarded damages to Mr Perez, including damages for injured feelings arising from the infringement, of $10,000.

Lessons for artists and other creative samplers

This decision serves as a warning to those in the music industry and the general public alike that mixing or sampling songs, adding or removing parts of songs, or even using a song in a context not authorised by the author of that song, might amount to a derogatory treatment of that song and therefore an infringement of the author’s moral rights.