Want to Sample? Get a license

[daddyelmis]

The US Court of Appeals for the 6th Circuit (Kentucky, Michigan, Ohio and Tennessee) established a "bright line" test for those who use samples from recordings -- get a license from the recording's copyright owner or you are infringing.

 

The case, Bridgewater Music Inc. v. Dimension Films (April 2004), has established that, at least in the 6th Circuit, there is no "de minimus" exception to copyright infringement for sampling a small portion of a recording. Any unauthorized copying of a sound recording is infringement.

 

The de minimus exception is still in play for artists that imitate or simiulate an original recording by recording their own version of the riff (i.e., you actually play and record that bass part to "Under Pressure" as opposed to sample the record).

[fantasticsound]

Yeah! (Yeah, I know... wearing my flame suit.)

 

It's about time! If you want to be a collage artist, you ought to pay for use of every image you borrow. The same goes for aural clips in the form of samples. If you don't own the copyright you have to pay. Everyone seems to want unbridled use of others' creations for free. I'm glad the court system is finally catching up with the mass amounts of illegal infringement that have gone on for almost two decades.

[Anderton]

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Can you define "the de minimus exception?" Is it limited to a certain amount of measures or time?

[daddyelmis]

Originally posted by Anderton:

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Can you define "the de minimus exception?" Is it limited to a certain amount of measures or time?

It's a "facts and circumstances" test used by the court to determine if copying occurred (this is one reason why infringement lawsuits are so expensive -- "facts and circumstances" mean you go to trial, have lots of experts, etc). In it's simplest form, the evaluation is both quantitative (how many notes, bars) and qualitative (have you taken the "essence" of the copyrighted work). If you lift the 8 note riff from "Satisfaction," that may be de minimus from a quantitative standpoint, but you probably have lifted the most identifiable part of the composition from a qualitative standpoint.

 

The de minimus exception attempts to recognize that there are only so many notes that can be used in any musical composition, and you can copyright a C# just because it's in your composition.

 

FWIW, I agree with the 6th Circuit's ruling. I think the recording embodies not only the talent of the composer and performer, but also the producer, engineer, arranger (if there is one), etc., so a sampler is taking more than just some of the underlying composition. I also believe that if an artist thinks enough of the recording to want to sample it, it is almost (by definition) qualitatively significant -- otherwise the sampler wouldn't be interested in it (or would just hire some musicians to record that piece of the underlying composition and, at worst, pay the compulsory license fee).

[doug osborne]

Andy Warhol didn't pay Campbells a dime for the soup can

http://www.warholprints.com/images/artwork/full/FS-IIIA.5A.jpg

(and he didn't pay a dime to the estate of Marilyn Monroe http://www.warholprints.com/images/artwork/full/FS-II.21.jpg both images are essentially doctored photographs).

 

Where does art stop and commerce begin?

[fantasticsound]

I disagree with the courts on this one, Doug.

 

The prevailing statutes regarding infringement based on the right to publicity seems to give weight to the artist so long as they create an artistic statement that goes beyond mere exploitation of the celebrity or trademark.

 

In the case of Marilyn, several discussions of these laws mention that Warhol would likely prevail in court, as state and federal laws stand. In other discussions, they are less certain regarding the Campbell's soup can.

 

I believe Warhol's art is an exploitation of the underlying object, even if he does make another statement about the world with it. With the obvious focus on these people/objects, there should be compensation for the person/trademark holder when an artist gets financial gain from another's image or artwork. Remember, another artist was paid to create the Campbell's soup can and, it would appear, was never given a cent by Warhol for the use of his original artwork. That's just sad.

 

Whatever Warhol may be saying by turning a photo of Marilyn into a simpler colored painting, it's still Marilyn's image that sells that particular painting, as opposed to other Warhol paintings.

[hard truth]

Fantasticsound wrote: "If you want to be a collage artist, you ought to pay for use of every image you borrow."

 

Fatasticsound-did you make up those words you used? No,you used (sampled) existing words and arranged them (made a collage) to express a thought. What about the rights of the artists who created the original words? Heck, what about the artist who created the letters that make up the words? You didn't compensate them for your unauthorized use of the words and letters that they took time to create. If you were a real writer you would make up new words to express yourself.

 

I realize this analogy is silly but the point is that all expression builds on and uses expressions from the past. We all use (mostly) the same 12 notes, painters use the same colors, writers rearrange the same old words. In a way all artists are collage artists.

 

It is ridiculous to claim that you own a word because you created it or bought it. (yet the lawyers for Monster cable claim that the company owns the word and the courts have upheld similar claims) I think it is ridiculous to claim that a brief fragment of a song or performance can't be reused. I believe the Fair Use doctrine (which isn't derived from legislation, but a result of multiple court decisions) is a reasonable way to make determinations in these cases. The recent decision cited above seems to completely disregard the precedents that evolved into the Fair use doctrine. Here's a link to a description of Fair Use: http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/index.html

 

My interpretation of Fair Use is that excerpting a small portion of a song would be fair use because it is a comment, criticism or parody of the original song. If the portion used is so substantial that it can be credibly claimed that the original artist is likely to lose revenues because of the sampling then it may have gone beyond Fair use.

 

For example if MC Hammer used the Rick James sample in "Can't Touch This" without permission I would likely support Rick James' lawsuit because I think he could reasonably argue that MC Hammer's use is likely to hurt sales of "Super Freak." But I don't see how using one second or less of a song could have any negative impact on the artist.

[fantasticsound]

Originally posted by hard truth:

...Fatasticsound-did you make up those words you used? No,you used (sampled) existing words and arranged them (made a collage) to express a thought. What about the rights of the artists who created the original words? Heck, what about the artist who created the letters that make up the words? You didn't compensate them for your unauthorized use of the words and letters that they took time to create. If you were a real writer you would make up new words to express yourself.

 

I realize this analogy is silly but the point is that all expression builds on and uses expressions from the past. We all use (mostly) the same 12 notes, painters use the same colors, writers rearrange the same old words. In a way all artists are collage artists.

Don't slide out of the questions you raised by calling them silly. There's a simple answer to all of them. The letters and words are in the public domain. And that's not silly as creators of new words in the past few decades have trademarked those words and reaped royalties from licensing their use.

 

 

Originally posted by hard truth:

It is ridiculous to claim that you own a word because you created it or bought it. (yet the lawyers for Monster cable claim that the company owns the word and the courts have upheld similar claims)

It's not about ownership of a word in and of itself. It's about owning the use of a word where it relates to a money making enterprise or is tied to a product or celebrity's value or reputation.

 

As I previously stated, the Monster Cable lawsuits are frivilous because the companies they are suing are neither in the audio/video cable business nor even another pro or consumer audio or video businesss. They are working the system in ways that are unethical at best and criminal at worst.

 

Originally posted by hard truth:

I think it is ridiculous to claim that a brief fragment of a song or performance can't be reused. I believe the Fair Use doctrine (which isn't derived from legislation, but a result of multiple court decisions) is a reasonable way to make determinations in these cases. The recent decision cited above seems to completely disregard the precedents that evolved into the Fair use doctrine. Here's a link to a description of Fair Use: http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/index.html

 

My interpretation of Fair Use is that excerpting a small portion of a song would be fair use because it is a comment, criticism or parody of the original song. If the portion used is so substantial that it can be credibly claimed that the original artist is likely to lose revenues because of the sampling then it may have gone beyond Fair use.

 

Fair Use isn't just about lost revenue. It is also about a creator's ability to control use of their work. Up until Michael Jackson bought rights to the Beatles' catalog, they refused to allow use of Beatles' tunes in commercials and seriously limited their use in movies. When the ownership of the copyrights changed, MJ set to making more money by offering the music up for anyone's use, hence Revolution ended up in a Nike commercial. The issues there were who owned the rights. But as a creator, it was John, Paul, George and Ringo's decisions that led to the catalog being available before the copyrights ran out.

 

And although I think the solution is stupid, to answer Fair Use being used as an excuse for anyone to record songs off the radio and movies and shows off tv they added a tax to blank media that's supposed to compensate record companies and, in turn, the artists whose songs are being recorded. In reality, this money just seems to flow back to the record companies with no thought to the creators.

 

Real fair use has to do with copying for reference, not for personal enjoyment. But it has morphed to where people think it's a license to record anything you can, any time you want for any purpose you want, just so long as you don't charge someone to hear/see the performance without express permission.

 

Besides, copyrights cover derivative works, and that is exactly what collages or samples being reused are.

 

Originally posted by hard truth:

For example if MC Hammer used the Rick James sample in "Can't Touch This" without permission I would likely support Rick James' lawsuit because I think he could reasonably argue that MC Hammer's use is likely to hurt sales of "Super Freak." But I don't see how using one second or less of a song could have any negative impact on the artist.

Again, forget about the dollar issue. That's a given. How about Rick James' ability to decide whether he wants his creation to be connected with MC Hammer? How would you like it if I created an art work that used your face and name but was thoroughly embarrassing to you, your family and friends? Do you really want people to be able to claim anything as an artwork, even if it is damaging to you, in the name of artistic expression? Not me, thankyou.

[daddyelmis]

"My interpretation of Fair Use is that excerpting a small portion of a song would be fair use because it is a comment, criticism or parody of the original song."

 

Well, you got the key words of the Fair Use Doctrine right, but you misinterpreted. "Comment" and "critique" generally mean in the academic sense of those words, not restricted to academic settings, but rather the critical evaluation of a work as in a newspaper, magazine, tv report, book, etc.

 

Parody means just that -- making satire of something. All of Weird Al's stuff falls into this category for the most part.

 

Sampling for use in your song, movie, etc., is none of the above (unless your movie is a critical examination of a work).

 

And as Doug points out, it is the copyright holder that gets to determine what he/she wants done with the work -- it isn't always (or even frequently) about money but about association of one work with another (the famous "Here's Johnny" case where Carson successfully sued to keep that phrase from being used on port-a-potties).

 

And remember, we're only talking about lifting from a copyrighted sound recording (cd). You are always free to yourself record a copyrighted work by paying the Compulsory License Fee -- you don't need permission. So you can always record that 8 second sample you like -- pay the Compulsory License, go get a few musicians, hit record.

 

As for Warhol's soup can -- I seem to recall there was some fuss from Campbell's, but they ultimately decided the publicity the painting received was fanatastic and free advertising for them.

[hard truth]

To respond to fatansticsounds questions: "How about Rick James' ability to decide whether he wants his creation to be connected with MC Hammer? How would you like it if I created an art work that used your face and name but was thoroughly embarrassing to you, your family and friends? Do you really want people to be able to claim anything as an artwork, even if it is damaging to you, in the name of artistic expression?"

 

I think the Supreme court ruled correctly in the case involving Luke Campbell from Two Live Crew and Roy Orbison's publisher's. They ruled that when Luke used elements of "Oh Pretty Woman" and added raunchy words it was legitimate fair use parody, even thoughthe copyright holder objected to the use. So I'll accept the risk of me or my work being parodied and mocked (but not libeled) in exchange for the right to parody and mock others, which I think is essential for a functional democracy.

[Super 8]

Anyone remember Negativeland?