Has there been sampling in Aitana's "Las Babys"?

Tuesday, 5 of September of 2023

At the gates of the end of the summer, it is almost impossible that someone has not yet heard Aitana's (the Spanish singer) new single "Las Babys", to which many attributed the medal for becoming the hit of the summer season. And no wonder, because, even if many did not know the song, doesn't the melody sound familiar?

There are melodies so recognizable that when they appear in new songs you know that you have already heard them before, and that is the case of the song of Spanish artist Aitana and her single "Las Babys", since shortly after the singer released the song, the first reactions were already provoked. And it is no wonder, since it has reminded many of the Danish group Whigfield's hit song "Saturday night", known for its famous chorus accompanied by an original choreography.

When you listen to the song and especially the chorus, there is no doubt that we are facing a very clear reference to the Whigfield's song, so it is not strange that people have wondered if we were facing a new case of plagiarism.

The new song, which was released on June 7, 2023, bears such a resemblance to that song that it is obvious to consider that the label and the singer would have sought some kind of authorisation to avoid the legal consequences of an alleged plagiarism.

But this is not something that should surprise us, since the use of fragments or parts of songs included in other songs is more common than it seems and this is thanks to the technique known as sampling[1] or, in vulgar terms, the so-called "copy and paste".  To perform this technique, and in order to avoid any legal controversy, the permission of the owner of the work is necessary, which is usually embodied in a license agreement, an agreement that, depending on the cache of the new artist who wants to use it, can entail a significant disbursement.

In the case presented here, we understand that the artist's song does not make use of the sampling technique as such, but of a melody similar to the song of Whigfield’s group, a fact that will also require the pertinent authorisation for its later transformation.

This technique is also used to make use of song lyrics, being a totally legal action if the relevant permissions are requested from the owner of the rights subject of which the exploitation is going to be carried out. In fact, this is a very common technique among artists that can be seen reflected in songs such as that of the Spanish artist C. Tangana in his song "Nunca estoy" and its clear allusion to the refrain of the lyrics and melody of the artist Rosario "cómo quieres que te quiera si no estás aquí".

Although we may think that then, in order to reproduce or capture any lyrics of a song, the authorisation of the owner is necessary, the case law is clear; a commonly used expression cannot be protected under the umbrella of copyright. In Judgment No. 172/2019 of May 14 of the Commercial Court No. 12 of Madrid, the judge considered a creative insufficiency in the refrain "yo te quiero tanto yo te quiero tanto" (I love you so much). The song being sued was "La Bicicleta" performed by Carlos Vives and Shakira, and the object of the lawsuit was focused on the fact that there were numerous parts, both in the musical composition and in the lyrics of the song, which were sufficient to understand that there was plagiarism. This judgment was later ratified by Section 28 of the Provincial Court of Madrid in June 2021 (Judgment No. 230/2020).

Well, in that case, the Court understood that the alleged plagiarism was only limited to a small fragment of the lyrics "I love you so much" and those words were "a common expression, used in all kinds of songs and texts throughout history, not being considered an expression that enjoys originality". This shows that a certain originality of the lyrics is necessary for their inclusion in a new song to be considered plagiarism.

Other ways in which the reproduction can be made without prior authorisation are included in the Intellectual Property Law of 1996, where the limits and exceptions to copyright are listed. A clear example of this is the parody, and its maximum exponent can be seen in some of the songs performed by the Spanish comedy duo "Los Morancos" when they take as a basis some successful song modifying the lyrics, but with a very similar melody, to vindicate social, political or economic issues. In this case, the limit set forth in article 39 of the above mentioned law is clear, which states that "The parody of the disclosed work shall not be considered a transformation that requires the author's consent, as long as it does not imply a risk of confusion with it or damage to the original work of its author". However, it is important to emphasize that the exceptions may not be interpreted in such a way as to allow their application to unjustifiably prejudice the legitimate interests of the author or to undermine the normal exploitation of the works to which they refer.

In short, the sampling and re-use of melodies and lyrics is something that is considered the order of the day, largely marked by the longing for earlier times, which, as long as they are regulated in authorisation contracts, or in the limits to unauthorised reproduction, will not have major legal consequences.

We wait for autumn to arrive with new musical compositions... that will surely also give us something to talk about.

[1] Sampling in music refers to the act of taking a part of a song and reusing it as an instrument or small section in a new musical composition.