Securing Copyright In Soca Music

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Securing Copyright in Soca Music

Vasha Maharaj*


Copyright law and soca have a challenging relationship. It must be considered how to protect original works while allowing the genre with its sharing norms to flourish. The judgement in Full Blown Entertainment[1] was unable to adequately address this concern.[2] Specifically, the Trinidad and Tobago law on copyright sits uneasily with riddim culture, generic cultural references and music sampling and interpolation that is prevalent in the soca industry. Therefore, this blog post offers insight into some of the challenges concerning soca music and copyright law in Trinidad and Tobago.

Full Blown Entertainment v Matthews

The court held that the phrase, ‘wine with no worries’ and its syncopation did not meet the requisite originality standard to attract copyright protection. Justice Seepersad argued that the words comprise ‘elements of the genre’ of soca, the implication of which holds them to be too generic to satisfy the originality standard. This is problematic because soca music often utilises repetitive musical structures, the vernacular of the region and thematic elements centred on Carnival, which could be perceived as too generic for copyright protection. Terms like ‘wine,’ to signify a dance integral to soca, exemplify this issue. Thus, the Full Blown Entertainment precedent raised questions about the cultural implications of not considering soca music sufficiently original for copyright protection. This approach is complicated, as it suggests that adhering to genre-specific elements may inherently preclude soca songs from copyright protection, which jeopardises the viability of the genre. 

Given the need to protect soca music due to its cultural value, it becomes necessary to discuss the parameters of the protection afforded. It is not disputed that soca music at large is capable of copyright protection, however, there is uncertainty whether certain elements of soca music are protectable, which was evidenced in the Full Blown case. 

Soca Infringement More Generally

If soca music is assessed through the lens of the US fair use doctrine, a potentially tenuous balance could be struck allowing the music to flourish and allowing creators to own the right to their creation. The Trinidad and Tobago Copyright Act however relies on fair dealing defences, which are more restrictive in its scope[3] and cannot be applied to the normative elements of the soca industry concerning riddim culture and sampling and interpolation.

Courts have applied fair use to address music sampling in the seminal case of Campbell v Acuff-Rose,[4] about the transformative use of samples in music that do not qualify as parody. Fair use was also found in the case, Estate of Smith v Cash Money Records Inc,[5] where the artist modified the original lyrics in his rendition from ‘Jazz is the only real music that’s gonna last’ to ‘Only real music is gonna last.’ The court found that this qualified as transformative use and held this to be covered by the fair use exception. 

With regards to soca music, despite songs sharing a common rhythmic element, each artist’s version can be seen as unique and potentially transformative. Copyright law could grant protection to musical compositions and lyrics, but find another artist’s version transformative enough to avoid infringement. However, fair use determinations require case-by-case analysis, leading to potential litigation costs that could burden the soca music industry. Additionally, soca songs produced for commercial purposes during the competitive carnival season can be considered market replacements[6] which would weigh negatively under the fourth factor of fair use.[7] Notwithstanding this, all four elements of the fair use test are weighed together to determine whether the doctrine applies in each case. 

Conclusion

Although the judgement in Full Blown Entertainment v Matthews did not produce much clarity in explaining the scope of Trinidad and Tobago’s copyright law, Justice Seepersad encouraged artists to seek the protection of our laws.[8] Consequently, Trinidad and Tobago's copyright jurisprudence needs to evolve to ensure the protection of its cultural expressions, in particular elements of soca music, whose status is currently tenuous.


* Author can be contacted at vasha.maharaj10@gmail.com. 

[1] Full Blown Entertainment Company Limited v Devon Matthews and others (2017) CV2015-01073

[2] Emir Crowne, “Trinidad High Court Allows Defendant to ‘Win(e) with No Worries” (2017) 12(5) Journal of Intellectual Property Law & Practice 370

[3] Julie Ewald and Paul G. Oliver, ‘UK Copyright and the Limits of Music Sampling’ (SSRN, 13 January 2017) <https://ssrn.com/abstract=2898820> accessed 1 April 2024.            

[4] Campbell v Acuff-Rose (1994) 510 US 569. 

[5] Estate of James Oscar Smith v Cash Money Records Inc (2017) No 1:14-cv-02703. 

[6] Sean M Corrado, ‘Care for a Sample? De Minimis, Fair Use, Blockchain, and an Approach to an Affordable Music Sampling System for Independent Artists’ (2019) 29(1) Fordham Intellectual Property, Media and Entertainment Law Journal 181.

[7] Factor 4 considers the effect of the use upon the potential market of the work.

[8] Full Blown Entertainment Company Limited v Devon Matthews and others (2017) para. 85

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