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Transformative vs Derivative

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Transformative vs Derivative

Postby Aurongroove » Sat May 11, 2019 9:15 am

It seems to be a really sticky subject, especially with music.

My mate, who I helped with digital aggregation, has one song on his album (of original songwriting) that para-quotes in several places, a pop song from the 80's.

Now, to me, it is obviously transformative and quotes material from a song that has been in the public consciousness for about 40 years.
But music can be a scary industry.

Video Killed the Radio Star.
https://www.youtube.com/watch?v=W8r-tXRLazs

Calling out my name.
https://open.spotify.com/track/4K6pVscI ... uIQvSFcWvw


Is it diligent, or just hysterical to seek legal protection for something like this?
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Re: Transformative vs Derivative

Postby Guest » Sat May 11, 2019 9:32 am

Depends. Personally I think if s/he's playing live, or it's a small run of vinyl for example, you may get away with it. In the 1990s/early 2000s people would sample well known tracks and produce 500-1000 vinyl copies to give to DJs. Sometimes the white labels only had a pager number on them. Usually no one cared unless it started making money or became popular, then clearance was essential - often meaning most of the royalties went on sample clearance. Unfortunately it is now a minefield and the recent Marvin Gaye trial has shown that attorneys are ruthless, mendacious, money grabbers and juries don't know what they are doing when it comes to anything to do with creativity. Governments don't either as you can see from their policies on copyright legislation and internet security.

If you are on a long train journey you could read this thread which discusses these things:

https://www.soundonsound.com/forum/viewtopic.php?f=18&t=65592

Usually you get a Cease and Desist letter but I'm am not taking responsibility if your friend ends up in a penitentiary cracking rocks.

Aurongroove wrote:Is it diligent, or just hysterical to seek legal protection for something like this?

That's a surprising comment as basically you are suggesting your friend wants "legal protection" for breaking the law (even though I personally disagree with the law in this case).
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Re: Transformative vs Derivative

Postby Aurongroove » Sat May 11, 2019 10:04 am

Perhaps legal advice/opinion would be a better choice of words.
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Re: Transformative vs Derivative

Postby Guest » Sat May 11, 2019 10:22 am

Aurongroove wrote:Perhaps legal advice/opinion would be a better choice of words.

Except it cost about £300 an hour twenty years ago. If you get free advice from PRS or the Musicians' Union they will almost certainly say it's illegal as they both support draconian copyright legislation.
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Re: Transformative vs Derivative

Postby blinddrew » Sat May 11, 2019 1:49 pm

It being lyrics rather than a recording you could argue a fair dealing defence or a de minimis approach - however, as the other thread linked above covers, there's not a lot of case-law on this. :(
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Re: Transformative vs Derivative

Postby blinddrew » Sat May 11, 2019 2:31 pm

Really enjoying the album though! :D
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Re: Transformative vs Derivative

Postby Arpangel » Tue May 28, 2019 9:35 am

I wanted to use a whole performance by a famouse artist, I basically wanted to ad another complete track to it. In these cases the situation can vary so much depending on who you're dealing with, my view is that it's always good to ask, it's essential in fact. I was lucky in my case, the management and the artist gave me permission under the conditions that they'd have the final decision after they heard the finished mix, plus if I sold any more than 30,000 copies they'd want to discuss further.
This was a result, and I got the feeling that if I hadn't asked for permission they'd have blocked it. Asking is the polite thing to do, if they say no fine, it's their material, they own it, and spent time and money making it, they also may have ethical reasons for not allowing its use for "their financial gain" if it gives them more publicity and people start to buy their product again, I've come across that one more than once.
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Re: Transformative vs Derivative

Postby Steve A » Tue May 28, 2019 11:25 am

A possible real life case in similar territory is Good Boys by Blondie which borrows quite obviously from the lyrics of We Will Rock You in the middle eight section. They added Brian May to the writing credits after he threatened to sue which presumably involved an undisclosed settlement in relation to share of royalties.

The difference here is that this is not a particularly established artist and there's presumably not much money flying around but the extent to which it borrows from VKTRS is at the very least equal to the situation with the Blondie record and arguably more so which I think probably demonstrates that if the original writers wanted to make an issue of this, they could quite easily do so.

Possibly also worth mentioning that SOS has just done a video series with a certain Trevor Horn so it is not beyond the realms of possibility that he or people close to him may browse this forum from time to time. In which case, you may have just knackered the chances of this slipping under the radar by bringing attention to it!
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Re: Transformative vs Derivative

Postby CS70 » Tue May 28, 2019 11:35 am

What Stills says, so long there's no money or fame involved, it's unlikely that anyone will bother sueing.

Tough as other said, asking is always the nice thing to do. Do your best to get in contact and keep records of it. If the artist or his/her management cannot be bothered to reply, at least you have done your part.

Being Trevor Horn, it should be easy to get his contacts (or his management or studio) from someone here at SOS.
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