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Copyright Issues Re: Band Names & Samples

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Re: Copyright Issues Re: Band Names & Samples

Postby The Red Bladder » Tue Sep 01, 2020 4:36 pm

blinddrew wrote:Sorry but this isn't correct, you're mixing up trademark and copyright. They're different things with different purposes and you're conflating the two.
Yes, I meant trademark and obviously not copyright. Two VERY different things. A case of a severe brain-fart on a very busy day!

A TM costs £170 for 10 years (just paid) and the OP can check online at the IP office website if the name has been taken.

@HR - sorry for the intemperate language, but in mitigation, the idea that someone may 'borrow' what is in effect someone else's property is not going to get any plaudits fro me.

There has been for quite some time now, online software that automatically traces and identifies samples taken from published music. You can mangle, overlay with your sounds - do what you like, the software finds it (much to my amazement). As this interfaces with Windows Media Player (and no doubt with other portals and software) getting found out and getting 'that' letter is a racing certainty.

As owners of IP are getting less and less tolorant of this kind of thing, a cease-and-desist letter is nowadays unlikely. If it is a minor infraction (e.g. website or minor use on a YouTube channel) the usual course of action is an invoice and prices range from about £500 to a few thousand, depending on whose toes you have trodden. If it is something more serious, after an intiial letter demanding £x or all royalties, litigation is launched.
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Re: Copyright Issues Re: Band Names & Samples

Postby Hugh Robjohns » Tue Sep 01, 2020 10:27 pm

The Red Bladder wrote:@HR - sorry for the intemperate language, but in mitigation, the idea that someone may 'borrow' what is in effect someone else's property is not going to get any plaudits fro me.

It's okay, Andrew. I totally I understand your point of view. But it's obviously better for the atmosphere here to stay polite and constructive...
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Re: Copyright Issues Re: Band Names & Samples

Postby Sunshine82 » Mon Sep 14, 2020 4:20 pm

CS70 wrote:If it's not recognizable, you can do whatever you want - so long you do not explicitly name the source of course (because in that case you are capitalizing on the name).

If it is recognizable, you have to get a license from the original artist (that's the short version).

A) Is there a good practice for working with samples? If altered considerably, when do they cease to exist as their original source?

All these issues aren't pre-decided. A claim must be filed and litigated. The final result depends on the jurisdiction and the type of judicial system where you file the claim. It's like asking where a cloud starts...

The best is to make sure that no claim can be raised because nobody recognizes the sample, or, if you want it recognized, agree with the copyright owner a license for using it.

B) I’d like to list my sources, but would this be drawing more attention to my sampling theft/borrowing?

Subject to the same qualification above, yes.

C) Can legal issues be avoided if i give the music away for free? What if the particular songs with samples are given away for free while the rest of the related album is sold? Is that any different?

Subject to the same qualification above, no.

3) Can music that was once either sold or given away by an independent party (i.e. the artist themself) later be eligible to be published by a record label? Would this depend upon the label and terms of contract?

Yes.

Other than that, are there pro bono law groups that specialize in assisting indie artists with issues like this? Thanks!

Pro-bono, don't think so, but some musicians associations or your PRO will often be able to give a consultation or forward you to a service.

Thanks for your thorough and thoughtful feedback! What I have in mind with the samples project is a variation of all the above: one album will function on repurposing samples that are recognizable; another album will function on mangling samples.

Is there a best process for clearing samples? Do I merely contact a record label or estate and wait (forever) for them to acknowledge my existence (if they chose to do so)?
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Re: Copyright Issues Re: Band Names & Samples

Postby Sunshine82 » Mon Sep 14, 2020 4:26 pm

Hugh Robjohns wrote:
The Red Bladder wrote:@HR - sorry for the intemperate language, but in mitigation, the idea that someone may 'borrow' what is in effect someone else's property is not going to get any plaudits fro me.

It's okay, Andrew. I totally I understand your point of view. But it's obviously better for the atmosphere here to stay polite and constructive...

I know this is a slippery subject, or not, at least has potential to be a heated one, but regardless of my terminology, I’m trying to understand underlying principles. I know that several left-field musicians have successfully borrowed/stolen/re-used pop music samples in their own music—and sometimes exclusively so. This music continues to exist in underground circles and, as far as I know, has so far avoided litigation.

With that said, I do want to avoid playing with fire. That’s why I’m asking you all for feedback ahead of time.
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Re: Copyright Issues Re: Band Names & Samples

Postby CS70 » Mon Sep 14, 2020 7:03 pm

Sunshine82 wrote:Is there a best process for clearing samples? Do I merely contact a record label or estate and wait (forever) for them to acknowledge my existence (if they chose to do so)?

I never used any but my impression is that there isn't.. you have to locate the copyright owner, their contact data and inquiry, so as I understand it's a case-by-case thing. There's licensing processes for stuff like covers and sync licenses but not so sure about samples.

Hopefully someone who samples can come around and tell more.

However, how do you u publish? This kind of question is usually best answered by your publisher, whose interests are pretty aligned with yours in these cases.. even if you use an aggregator, it's well worth taking the question to them.
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Re: Copyright Issues Re: Band Names & Samples

Postby Sunshine82 » Tue Sep 15, 2020 3:34 pm

CS70 wrote:
Sunshine82 wrote:Is there a best process for clearing samples? Do I merely contact a record label or estate and wait (forever) for them to acknowledge my existence (if they chose to do so)?

I never used any but my impression is that there isn't.. you have to locate the copyright owner, their contact data and inquiry, so as I understand it's a case-by-case thing. There's licensing processes for stuff like covers and sync licenses but not so sure about samples.

Hopefully someone who samples can come around and tell more.

However, how do you u publish? This kind of question is usually best answered by your publisher, whose interests are pretty aligned with yours in these cases.. even if you use an aggregator, it's well worth taking the question to them.

I have yet to publish any of my music. I'm still working on finishing my projects. Just getting back to music making this year. Most of my music is entirely original; but there's one project that is based upon the use of samples. If I do publish, it will be through independent means like BandCamp. I'm sure I'll be a little fish in the pond; but lawyers still might still have an appetite for little fish: money is money...
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Re: Copyright Issues Re: Band Names & Samples

Postby The Red Bladder » Tue Sep 15, 2020 6:04 pm

Here's a message from a guy who is now a successful producer and musician, about what happened when he was working with an unknown (at the time!) underground band called Nine Inch Nails, when they wanted to use a five-second sample from some unknown documentary. This happened in the days before free SW was out there, looking for copyrighted sounds and images -

In 1995 or so I did some remixes for the indie band I was in at the time. I had a DAT cassette with audio snippets from a bunch of weird documentaries and stuff that I'd sample from - mostly for weird noises and ambiances like factory machinery, etc., but there was one documentary on that tape about religion in America, with interviews, snake handlers and crazy preachers, etc. I sampled a tiny snippet of the interviewer asking, "Do you believe in miracles?" and the interviewee responding, "Not really..."

I dropped that tiny soundbite into a break in the remix - the "Not really" part was in a hole where everything dropped out just before a huge chorus came blasting in. The guy saying, "Not really..." was lighting a cigarette, and you could hear him flip his Zippo open and his speech was kind of pinched, as it would be when you're holding a cigarette in your mouth... all in all, very unique and charismatic.

The remix came out only on the European edition of a Maxi-CD with six or seven other remixes by various folks - the US version did not have my remix on it, so it was a pretty obscure release, and in the late 1990's, way before file sharing, etc. - so pretty much only the hardcore fans of the band had access to my remix. We only pressed a few thousand of that version of the CD.

Wouldn't ya know it - the guy who produced the original documentary was not dead and gone, and was in fact teaching in a film program somewhere, and he showed his documentaries to his students. When that moment came up, with the very unique sound of the guy saying, "Not really", some got-danged student piped up and said, "Wow! Did you know that's been sampled in a song by my favorite band?". The teacher had never heard of our band, but he got dollar signs in his eyes and the phone calls started.

What are the odds? I mean, seriously? Literally five seconds, seven words, from a 20-year-old documentary that I recorded off of PBS when I was in college, dropped 4 minutes in on a harsh industrial remix that was like track six on a CD full of gnarly unlistenable noise that only our hardcore fans in Europe would ever hear.

Anyway, we had to pay $8,000 to get out of that one.

Eight. Thousand. Dollars.

And them's 1995 dollars, too.

I got scolded badly for that one - we paid the producer of the documentary $8k and burned a few thousand more in lawyer time. It would have been a lot cheaper if we'd gone to the producer beforehand and secured the rights - he might have even given us the rights gratis - but how the hell was I gonna find him? I just had a DAT tape with the audio from a zillion different sources, with no credits or other info about where the stuff came from. The best I could do was, "It was some documentary on PBS about religion". So if you sample and release without securing rights then they've got you by the short and curlies. What are you gonna do, recall all the CDs? Go to people's houses and swap their CD for a "scrubbed" version? Too late. Gotta pay.

So... sure, sample away! But get clearances first or be prepared to pay and pay when you're found out.

That was then, when getting found out was a matter of chance. Today the software is embedded into most player packages (e.g. Windows Media Player) and is trawling the web looking for copyright material and anyone notifying it of their products (e.g. Universal, Disney, Viacom, EMI and many, many others, each of which employs platoons of legal beagles - for example Universal have I believe 16 in London alone, backed by a staff of over 120!) get automatic notifications.

These are not bad people. They are not vindictive. They are not out to get The Little Guy!

But most people do not understand what is at stake here!

If they do not prevent publication by The Little Guy, then their intellectual property become public domain by default. Intelectual property is only protected by copyright laws if that copyright is defended! That means that the Universals, Viacoms and all the others have no choice but to litigate against abuse!
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Re: Copyright Issues Re: Band Names & Samples

Postby blinddrew » Tue Sep 15, 2020 6:14 pm

Sorry but that last bit in bold is just not correct. The only IP you lose if you don't protect it is trademark. It doesn't apply to copyright.
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Re: Copyright Issues Re: Band Names & Samples

Postby The Red Bladder » Tue Sep 15, 2020 6:33 pm

blinddrew wrote:Sorry but that last bit in bold is just not correct. The only IP you lose if you don't protect it is trademark. It doesn't apply to copyright.
OK, that was an over-simplification - the absolute ownership does not change, but the value tends towards zero the more it is copied or sampled - which de facto amounts to the same thing!

If the owner turns a blind eye one hundred times, then he/she/they/it are still the owner - but they are the owner of a worthless or near-worthless property. US courts take the prior use into concideration when assessing value - and if you publish in the UK then you have published in the US as well.
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Re: Copyright Issues Re: Band Names & Samples

Postby Eddy Deegan » Tue Sep 15, 2020 7:01 pm

Sunshine82 wrote: one album will function on repurposing samples that are recognizable; another album will function on mangling samples.

Is there a best process for clearing samples? Do I merely contact a record label or estate and wait (forever) for them to acknowledge my existence (if they chose to do so)?

This is all pretty straightforward, at least initially.

You need to identify the rights holder of the recordings and contact them using whatever means are available once you know who they are. They either will or won't get back to you.

If they do, a conversation ensues and an outcome is established. If they don't then that's an implicit "no" from them unless/until you find a different contact to have that conversation with and a different outcome is mutually agreed (though realistically it's more likely to be 'take or leave these terms' from them).

Sunshine82 wrote:I do want to avoid playing with fire. That’s why I’m asking you all for feedback ahead of time.

Sure, and that's sensible. Just be aware that if you use any samples without completing the clearance you will be playing with fire whether you wanted to or not ;)
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Re: Copyright Issues Re: Band Names & Samples

Postby CS70 » Wed Sep 16, 2020 10:17 am

Sunshine82 wrote:I have yet to publish any of my music. I'm still working on finishing my projects. Just getting back to music making this year. Most of my music is entirely original; but there's one project that is based upon the use of samples. If I do publish, it will be through independent means like BandCamp. I'm sure I'll be a little fish in the pond; but lawyers still might still have an appetite for little fish: money is money...

Ok - then make a Bandcamp account and address the question to them beforehand, saying you would like to upload a track containing samples but you are unsure on whether is fine. As they host potentially copyrighted material, they will have some sort of reply (can be as simple as "you can't according to our terms of service" or "you upload at your risk"... but worth the try).

That said, Red is right about the little guy, but there's a detail to consider: if you don't have any commercial intent (i.e there's no revenue) the choices you face if you use a sample, get discovered, and the owner isn't agreeing (or wants money for your use) are two: pay up OR take the content down (or, in case of CDs, destroy them).

A commercial band expects to make money from a track, so it may be worth to pay up (like in the 9IN case) but if you don't, you can choose to simply remove/destroy it.

Sure, you could still be sued for damages due to the infringement but - for the very reason Red describes - it's unlikely to happen to small fish.. the point is preserving the value of the material, not squeezing money out of dry apples. And if the owner sued, a court would look at the actual size of damages.. which, given you haven't made a dime or gained any economic advantage (and therefore, no loss for the owner), is inexistent.. and the suit is likely to be seen as a joke. It's gonna be very hard to claim any loss by the owner.

In other words, so long you stay a small fry and gain no commercial revenues to speak of, the main risk is to have to take down the track at some point (or, nowadays, that it is taken down automatically). The economic risk is very low.

Keep in mind, I'm not encouraging you to use uncleared samples - not in the slightest.. on the contrary, it's only fair that, if you use someone else's work - you ask their permission (and most copyright owners are likely to give it for no fee at all). It's just that if you aren't hell bent of keeping the material public, you can remove it or accept its removal.

The major trouble is usually locating the owner and getting in contact with them.
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Re: Copyright Issues Re: Band Names & Samples

Postby blinddrew » Wed Sep 16, 2020 12:47 pm

Bear in mind also that if the work that you sample has been registered with the Copyright Office (in the US) then the owner could sue for statutory damages rather than actual loss - currently £135k per infringment.
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Re: Copyright Issues Re: Band Names & Samples

Postby Sunshine82 » Wed Sep 16, 2020 1:20 pm

CS70 wrote:Keep in mind, I'm not encouraging you to use uncleared samples - not in the slightest.. on the contrary, it's only fair that, if you use someone else's work - you ask their permission (and most copyright owners are likely to give it for no fee at all). It's just that if you aren't hell bent of keeping the material public, you can remove it or accept its removal.

The major trouble is usually locating the owner and getting in contact with them.

I appreciate your level-headedness with this exchange. I'm certainly not trying to defend the re-purposing of someone else's music in whatever form; nor am I trying to diminish the potential consequences of using music this way. Just trying to develop a thoughtful dialogue around the issue.

Locating the owner and hearing back from them certainly seems like the greatest challenge with this process. I hope the owners and other affiliates have some sort of sliding scale for sampling fees based upon the commercial status and/or proposed intentions of the artists... Is it true that many copyright owners are likely to give away their work for cheap or free?

I'm still wondering how other artists make a living when incorporating samples into their work. Hip hop artists have done this for years as samples are often fundamental to their work; of course, we all often hear news of major players getting themselves into legal issues due to this misuse. More to the point, other left-field artists have made a career around re-using/sampling music. John Oswald developed his pluderphonic aesthetic around this process, keeping his samples fairly un-touched. Carl Stone mangles his samples. Both seem to have carried on with this process in the 21st century without deviated from their aesthetic. I've tried contacting such an artist for some guidance; but I never heard back from them.
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Re: Copyright Issues Re: Band Names & Samples

Postby blinddrew » Wed Sep 16, 2020 1:36 pm

The short answer is that the law has changed/evolved over the last 20 years. At issue is the difference between interpretations in different geographical areas of the US. Back in 2005 the Sixth Circuit said the concept of 'de minimis' - where you could argue that a sample was so small that it didn't materially affect the copyright of the original piece - didn't apply to sound recordings and you had to license everything.
Then in 2016, the Ninth Circuit appeals court said, no, actually de minimis should apply.
So we're currently in this hinterland waiting for the Supreme Court to rule one way or another (if they decide to take a case to do so). Given the current make up of the court I'd expect them to side with the 6th Circuit, but you never can tell.
Obviously in the meantime anyone wanting to bring a sampling copyright case will simply do so in a territory covered by the 6th Circuit, so unless you can persuade the court that it should be transferred to the 9th, you'll be sued under that interpretation.
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Re: Copyright Issues Re: Band Names & Samples

Postby zenguitar » Wed Sep 16, 2020 1:55 pm

One of the problems in looking at artists who appear (at least, for the time being) to be getting away with it is that it doesn't help you if you get sued. It is no defence to point to someone else and say "well, he gets away with it".

Andy :beamup:
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