I have been writing music for many years, but I never felt it was
ready for publishing, until now.
My music is composed of many different elements, some singing, some
electronic, some acoustic, and various sampled stuff - meaning stuff
which I sampled mindlessly over time, with no regard as to where it
came from precisely, as well as stuff that I record either on-the-fly
or wherever it is that I happen to record it. The sources for some of
the sampled stuff I have are TV-series (including some Japanese anime
series), Movies in all sorts of languages, percussions obtained
through various media sources, and all this mixed together - is my
music.
I have tried contacting the Japanese company responsible for creating
one of the series whose name I happened to remember, and spoke in my
mail of the possibility of using a sampling from one of their
episodes, and I inquired as to what would be involves (i.e.
Credits/payment/whatever? what do *I* know about this stuff?!) - but I
got no reply at all.
And one other song of mine, already finished, completely produced,
awaiting only the final mastering - has one sample taken directly from
a set of presets from a sotware-synthesizer that I do not own, but a
friend of mine owns a studio, produces tons of music utilizing all
sorts of presets - and I added that sample at his place - so I don't
own the synth, but he does, or did - when we recorded it.
And I started thinking:
1) "Do I have to actually *worry* about this stuff or am I getting delusional?"
2) "I mean... would some company actually *ask* me where it came from,
then go talk to my friend, and ask him to prove that he once did *own*
it?! or am paranoid?"
(clarification) I mean: I'm not even 100% sure that my music is gonna
hit the shelves. If I had to worry about all these things - when would
I have to do it? Before sending Demo-CDs? Before signing a contract
with a publishing company? Or before actually *profiting* from the
music?
3) Could I just send my demo cds as they are, see how things progress?
Or do I have to do something, as if so, what *exactly*?
You see, all the browsing and searching and inquiring I did myself,
even though I'm a smart guy - it all led to examples of court-trials
involving music *giants* - and if things get that good, I'll just pay
whichever company that proves my music has a sample belonging to it -
since I don't even remember myself where do all those sounds and
senteces and words come from. Is this making any sense, or am I gonna
jump into the water and get eaten by the big sharks?
Just as reference information, the main places which I had in mind for
attempting to publish my music are U.S. U.K., and possibly Japan and
other countries in Europe, although this may be irrelevant - because I
would like to keep all the options open, so to speak - i.e. iTunes, my
own site, whichever way I eventually choose to sell my music.
Worried musician,
Israel. |
sagadan...
You're not being paranoid...or should I just say that
your paranoia is timely...
I'm an amateur musician who plays 3 instruments by ear,
and I have a subscription to Keyboard Magazine. In the
January, 2005 edition, an article titled, 'Step Away
From the Sampler', by Peter Kirn, which is available
online at Keyboard Magazine's website, starts with:
"Get this: According to a fall 2004 ruling by the 6th
Circuit U.S. Court of Appeals, any use of a digital
sample of a recording without a license is a violation
of copyright, regardless of size or significance. In
its decision in Bridgeport Music et al. vs. Dimension
Films, the court said simply, 'Get a license or do not
sample. We do not see this as stifling creativity in
any way.'"
[...]
"Previously, courts had applied the question of size and
significance to copyright infringement claims, but the
new ruling changes that for sampling. Cooper says, 'I
think they went a little far afield from what the law
has been in the past. Basically, the law has generally
been there has to be more than a minimal use . . . this
case basically said that you could take one note and
that could be copyright infringement. They really did
say that.'"
On a brighter note:
"The decision makes a distinction between digital sampling
and other forms of musical copying. Presumably, says the
court, use of musical materials by a method other than
digital sampling is still subject to what lawyers call a
de minimis standard (Latin for 'minimal') in which amount
and recognizability of the copied material must be
considered. In other words, unless you?re using a recorded
sample of the work itself, you can?t be sued for playing
a Herbie Hancock lick on your CD, unless you?re copying
a significant portion of his playing."
Much more on the page:
http://www.keyboardmag.com/story.asp?sectioncode=29&storycode=4979
Your music becomes *your* music when it is copyrighted,
which, simply, is as soon as it is recorded to any media,
as noted in this article by Alan Korn on registering your
copyright:
"A song is copyrighted under U.S. law as soon as it is
recorded on a 'tangible medium.' Consequently, a copyright
of your song exists as soon as it is written on a piece of
paper, recorded on audiotape or stored in a computer file.
However, even though your song is automatically copyrighted,
it is not yet completely protected. To fully protect you
work under copyright law, it is necessary to register the
copyright with the U.S. Copyright Office.
One common myth is that mailing a copy of your work to
yourself gives you a copyright in that work. This is not
really true. Mailing a copy to yourself (preferably by
certified mail) does help to establish the date the work
was created. However, because envelopes are easily steamed
open, a judge may be unwilling to accept a mailed copy as
proof that a song was written on a certain date."
Instead, prompt registration of your copyright with the
U.S. Copyright Office provides the greatest protection and
maximizes the remedies you may have against infringers.
Prompt registration also helps create a 'presumption' that
you possess a valid copyright."
and...
"...it?s unclear whether using an analog tape recorder is
permissible, but generally all sampling appears to be
off-limits. If that?s too creatively limiting, the ruling
advises, recreate a sample on a live instrument instead of
using a sample of the original recording."
Much more on the page:
http://www.alankorn.com/articles/reg_copyright.html
As for samples from software or hardware synths, the
samples themselves enter the public domain when the
synthesizer hits the market. You are not required to
be the owner of my Kurzweil 2500SX in order to use a
sample from it. For that matter, I am free to publish
these samples on the internet (as many have) with no
restrictions at all, and anyone can use them.
To find out if a particular recording you may have used
is in the public domain, and thus able to be used with
no restrictions, there is no better site than PD Info,
which has an extensive list of public domain songs:
http://www.pdinfo.com/
As for contacting and negotiating with the companies
whose works you have sampled, you may be able to use
the services of sites like the Harry Fox Agency to
obtain a mechanical license. A good place to search
is the Songfile page on his site. The search itself
does not require membership or login:
http://www.harryfox.com/public/songfile.jsp
As you noted, all of this is not likely to become a
serious issue until and unless you hit the charts
bigtime. Should that happen, however, it could
result in considerable losses.
At the least, this is something to keep in mind for
future recordings.
I think the Keyboard Magazine article thoroughly and
precisely addresses your question, but please let me
know if there's anything that's unclear.
Please do not rate this answer until you are satisfied that
the answer cannot be improved upon by way of a dialog
established through the "Request for Clarification" process.
A user's guide on this topic is on skermit-ga's site, here:
http://www.christopherwu.net/google_answers/answer_guide.html#how_clarify
sublime1-ga
Additional information may be found from an exploration of
the links resulting from the Google searches outlined below.
Searches done, via Google:
law "digital samples"
://www.google.com/search?q=law+%22digital+samples%22
"Bridgeport Music et al vs Dimension Films"
://www.google.com/search?q=%22Bridgeport+Music+et+al+vs+Dimension+Films%22 |
Clarification of Answer by
sublime1-ga
on
26 Nov 2005 21:23 PST
Sorry, I made an error in formatting the answer.
The last quote I appended at the end of citing
the Alan Korn website should have been appended
to the article from Keyboard Magazine:
and...
"...it?s unclear whether using an analog tape recorder is
permissible, but generally all sampling appears to be
off-limits. If that?s too creatively limiting, the ruling
advises, recreate a sample on a live instrument instead of
using a sample of the original recording."
Much more on the page:
http://www.keyboardmag.com/story.asp?sectioncode=29&storycode=4979
I hope that clears things up.
sublime1-ga
|
Request for Answer Clarification by
sagadan-ga
on
26 Nov 2005 22:02 PST
What still bothers me is the major differences between the cases you
have presented in your answer, similar to the cases I had found myself
while skimming the web - and my own case.
The Keyboard magazine discusses a sampling from a *musician* - I never do that.
And if I did, I would worry for sure - and then maybe Harry Fox could help me.
But - most of my sampled stuff is, for instance, background sounds
from a movie, or a certain well-spoken sentence by an actor, or a
short conversation - sometimes just a word. What if, say, I wanted to
use a line or two from a movie? Or a TV series? Would it tip the
balance greatly if the series/movie were famous, even if my music
didn't eventually become a hit?
Not only was this 3-note sampled from another musician, but it was
also only at the time that it became the *soundtrack of a movie* that
the whole thing got messy - I should be so lucky! If I get that far,
I'll get all the loose-ends tied up - but as I said: I'm a Little Fish
worried about the Big Sharks.
Many other cases deal specifically with big lawsuits, and everythig
seems so far away... like the giants are fighting in the background...
so I ask you again, sublime1-ga, hoping that I am clearer in my more
immediate-concerns:
Seeing as my sampled stuff is not-from-other-musicians but from
TV-series/movies/US/Japan/and otherwise, and as my songs may contain
samples from hardware/software-synths that I do not own or know -
Should I worry and At what point? I.E. before sending Demo-CDs?
Before hitting the shelves? Or perhaps the shelves don't count as much
as the Radio, or iTunes? ... Or is it that reality dictates that I
have nothing to worry about unless I'm about to hit Hollywood's big
screen/fat lawyers?
|
Clarification of Answer by
sublime1-ga
on
26 Nov 2005 23:23 PST
sagadan...
I wish I could ease your conscience, but the facts are the facts.
You posted:
"...most of my sampled stuff is, for instance, background sounds
from a movie, or a certain well-spoken sentence by an actor, or a
short conversation - sometimes just a word. What if, say, I wanted to
use a line or two from a movie? Or a TV series? Would it tip the
balance greatly if the series/movie were famous, even if my music
didn't eventually become a hit?"
As I said, anything committed to media of any kind is automatically
copyrighted, and anything that's been sold and made available to
the public almost certainly has that copyright registered.
Other pages from the sites I cited answer these questions quite
precisely, such as the FAQs page at PC Info:
"Any original creative work expressed in a tangible form can
be protected by copyright. In addition to music and lyrics,
this includes items such as books, letters, paintings, movies,
television programs, computer software, photographs, and video
games. Ideas and facts cannot be protected by copyright law,
although they can in some instances be protected under patent
or trademark law."
http://www.pdinfo.com/faq.htm
You posted:
"Seeing as my sampled stuff is not-from-other-musicians but from
TV-series/movies/US/Japan/and otherwise..."
All are likely copyrighted, and permission should be requested.
As for foreign content, it's really no different. The main
page of the PD Info site notes:
"Countries other than the US may offer copyright protection
for 70 years or more after the death of the author. There
is no such thing as an 'international copyright'. If you
wish to use a song outside of the United States, you must
check the copyright laws for each individual country where
you use the song."
http://www.pdinfo.com/
"...and as my songs may contain samples from hardware/software
synths that I do not own or know..."
I covered that - synth samples aren't a problem at all.
"Should I worry and At what point? I.E. before sending Demo-CDs?
Before hitting the shelves? Or perhaps the shelves don't count as
much as the Radio, or iTunes? ... Or is it that reality dictates
that I have nothing to worry about unless I'm about to hit
Hollywood's big screen/fat lawyers?"
I would personally worry before sending the Demo-CDs, however
some responsibility falls on the publisher of the website or
other publisher of the music. If they have their own act
together, they will likely have you sign a statement to the
effect that your music is 100% original and does not violate
any copyrights. This, of course, would make you responsible.
The possible penalties for infringement are discussed on the
Alan Korn website:
"Copyright law permits a copyright owner to collect 'actual'
damages such as lost income which may be result from an
infringement. 'Statutory' damages may also be available by
statute in the Copyright Act, and they range from $500 to
$30,000 per infringing act, or up to $150,000 per infringing
act if it is shown that the infringement was 'willful.'
If the copyright was NOT registered before the infringement
or within three (3) months after the work was 'published,'
a copyright owner may collect only 'actual' damages from an
infringer. However, if a copyright is registered before an
infringement occurs or within three (3) months of publication,
it is possible to obtain 'statutory' damages and attorneys'
fees from a copyright infringer."
http://www.alankorn.com/articles/reg_copyright.html
"Willful" use of a copyrighted segment would be offset by
a record of having searched to determine the copyright, if
any, of the segments you have utilised in your work. The
discussion on PD Info of what might result from an "accidental"
use of copyrighted material will give you an idea:
"What happens if I accidentally use a piece of copyright
protected music?
You would probably receive a 'cease and desist' letter from
the copyright holder advising that you have infringed on his
copyright. You would them present your PD research findings
and attempt to reach an amicable agreement with the copyright
holder. If you had done your research properly and had good
reason to believe you had a legal right to use the music,
hopefully the copyright holder would accept the most
reasonable royalties possible for the use you made of his
song. However, making an honest error in no way protects
you from paying royalties due to a copyright holder. After
you have already used the song, you are pretty much dependent
on the copyright holder's mercy when royalties are assessed.
If there is any doubt about rights to a song, you should
always obtain clearance through an attorney or rights
clearance organization prior to any usage."
Much more useful information on the page:
http://www.pdinfo.com/faq.htm
Obviously, the risk is considerably greater when your work
becomes better known, and as long as you're staying under
the radar, it will probably not be a real concern. It's
strictly up to you to determine whether it's worth the risk,
but I would caution you to carefully scrutinize the terms
of service of any company which agrees to publish your
music, and make sure you are completely honest if they
inquire about the originality of your compositions.
sublime1-ga
|
Request for Answer Clarification by
sagadan-ga
on
27 Nov 2005 00:44 PST
..Fair enough, you have provided me with food for thought and points
of research, if not a solid, ready-built opinion on "what should I do"
- which was what I was hoping for, secretly, as you could tell.
So I will bother you one last bit before I return to the same
uncertainty whence I came... (just kidding.. :) I must ask you:
Alex Paterson (The Orb), Future Sound of London, Eat Static, tons of
other electronic musicians who *I know* don't have the money to pay
royalties to anyone: they sampled half the world. What did *they* do
to get away with it? Were credits simply enough those days, and has
the world changed yet more to the worse..?
These specific Artists/bands names interest me, because they sampled a
lot and did so seemingly freely and with little concern.
|
Clarification of Answer by
sublime1-ga
on
27 Nov 2005 01:23 PST
sagadan...
You posted:
"..Fair enough, you have provided me with food for thought and points
of research, if not a solid, ready-built opinion on 'what should I do'
- which was what I was hoping for, secretly, as you could tell."
Alas, per the Disclaimer at the bottom of this and every page on
Google Answers:
"Answers and comments provided on Google Answers are general
information, and are not intended to substitute for informed
professional medical, psychiatric, psychological, tax, legal,
investment, accounting, or other professional advice."...etc.
You also posted:
"So I will bother you one last bit before I return to the same
uncertainty whence I came... (just kidding.. :) I must ask you:
Alex Paterson (The Orb), Future Sound of London, Eat Static, tons of
other electronic musicians who *I know* don't have the money to pay
royalties to anyone: they sampled half the world. What did *they* do
to get away with it? Were credits simply enough those days, and has
the world changed yet more to the worse..?"
Obviously, the world *has* changed "more to the worse" (depending
on your viewpoint, of course) since the judgment handed down by
the court in the case of "Bridgeport Music et al vs Dimension Films".
The details relative to your specified electronic musicians are
technically well beyond the scope of the original question you
posed, and outside the scope of this answer, but I feel confident
in telling you that times *have* changed, and what suited their
purposes at the time is simply untenable in the present day and
age, and the larcenous legal environment in which we now live.
So much for the purity of the artistic heart... : (
sublime1-ga
|
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