Off the record

Last year in a brief moment between work and Swinburne, I was watching a 1970s Hindi movie starring Feroz Khan with lots of guns and car chases; the legendary Helen (Queen of the Nautch Girls) was strutting her stuff in a 1970s split sequined gown and I suddenly thought “I know this song!”

The melody was the “Ah no no noooo, don’t funk with my heaaaart” that was laid over the top of the Black-Eyed Peas’ 2006 superhit “Don’t Phunk With My Heart”. It turns out that there are two elements of that song taken from Hindi movie music hits of the 1970s.

The sleeve notes of Monkey Business, the album from which Don’t Phunk with my Heart was launched as a single, acknowledge appropriately that the tracks were “sampled” – one from 1972’s Apradh, one from 1978’s Don. The movies are not named, but the authors and performers are (one of them, Asha Bhosle, has been singing filmi hits for four decades and is still going). However, there is no actual copyright acknowledgement of the original tracks.

If we apply the rules of music sampling copyright as interpreted in Digital Sampling (1), then the original authors and performers of at least one of the works should have a copyright assignment agreement, and probably royalties, from the current artists. The article says ‘in determining whether the quality of what is taken makes it a “substantial part” of the copyright work, it is important to inquire into the importance which the taken portion bears in relation to the work as whole: is it an essential or material part of the work?’

This is not like copyright laws for reproduction of printed matter, that define photocopying as legal if under a certain percentage of the total publication, or citing with acknowledgement but without need for permission if the selection is minimal. This is about essence.

The sample from Don, a small trickle of Eastern notes at the beginning and end of DPWMH, is legitimately a sample; the similarity of melody from Apradh that originally caught my attention, however, forms the foundation of the song, only a small part of the original song, but repeated as a chorus throughout the new piece.

The entire song is strongly and deliberately referential in musical style and even in the video clip to Bollywood. I believe that the sampling was not done with any view to “stealing” or infringing copyright – but I also believe that more upfront acknowledgement of the original sources is needed.

Madonna’s sampling of the electronic riff from ABBA’s “Gimme Gimme Gimme (a Man After Midnight)” for her recent hit “Hung Up” was slightly scandalous to those of us who still remembered the original, but she handled it ethically. Bjorn Ulvaeus told the Sunday Telegraph: “Madonna wrote a very, very nice letter saying please please we have had a wonderful idea which involves Gimme Gimme. We said we would have to listen to it first but after half a minute I knew it was brilliant. That is one of the few we have allowed.” (2)

But consider this too: “…applying a more liberal approach, a substantial part will only have been reproduced where the sample takes a portion of the song which has led to its popular appeal or commercial success.” (3) Maybe this loophole was what stopped the Black Eyed Peas short of taking the copyright assignment option.

Cross-culturally, who decides popular appeal or commercial success? These songs would both have been well-known to an Indian audience but completely unknown to the target Western audience. So, plagiarizing or introducing? In a trend started way back by Malcolm McLaren of popularizing existing cultural output for financial gain, the Black Eyed Peas’ management would probably claim the latter.

(1) Fitzgerald, Brian and O'Brien, Damien (2005) Digital Sampling and Culture Jamming in a Remix World: What Does the Law Allow? http://eprints.qut.edu.au/archive/00003687/01/3687.pdf
(2) http://www.songfacts.com/detail.php?id=5879
(3) Fitzgerald, Brian and O'Brien

And if you have time on your hands and want a giggle, why not decide for yourself?
Ae Naujawaan Hain from Apradh(Performed by Helen, vocals by Asha Bhosle)http://www.youtube.com/watch?v=LtsY169K98E
Yeh Mera Dil from Don(Performed by Helen, vocals by Asha Bhosle)http://www.youtube.com/watch?v=frXcy2NOQPU
Don't Phunk with my Heart(Black Eyed Peas)http://www.youtube.com/watch?v=NqYXh-Y4ma8&feature=related