Music, Noise and Copyright

It doesn't matter how short the samples are: if you're using any copyrighted material then you are in breach of copyright. Your friend needs to prove that there is no copyrighted material in his compositions, or that he has permission to use the samples from the copyright holder, otherwise there's very little he can do. The law is very restrictive on this.

Paul Strange Fruit hello sir.

Sounds like the website are just being silly, probably want to cover their backs to the nth degree (in most cases though this is accomplished by a clause in the terms and conditions which the musician agrees to...that he/she warrants that their music is free of copyright issues and that in the event of any dispute they, not the website/label, are liable). Does he advertise the fact that he samples from radio broadcasts? Like on the web-page. That might have alerted them to it.

Sorry. I see my question was answered in the original post.

I'm not sure Paul's correct: I think there's a certain length threshold below which it's considered fair use (although I think the actual threshold is a legally contentious issue). If that's not the case then Akufen can expect a couple thousand lawsuits if anyone ever runs a comb over My Way.

This isn't to say that the site might not just play it safe and take down the file over his perfectly-valid objections: I'm sure they'd rather not take the risk. He can respond to them noting the fair-use provision and asserting that everything in the track falls under it; they can make a conscious decision to trample an individual's legal rights rather than risk inquiry; and that's about that.

there's no threshold length for samples - theoretically they could get you for a single snare hit

They excepted my song which had radio static on it.

Do you mean accepted it or they excluded it?

I reckon this is a bit dodgy, I bet, for example, on Big Brother (but don't actually know as I've never watched it) they are sometimes listening to the radio or cds or watching telly - do they have to get permission or pay royalties or whatever, or do they restrict them to only viewing/hearing certain channels?

On the other hand, I know the law here (or was it in Tassie?) is that if you own a commercial place (shop, hair-dresser, cafe etc.) and you want to have the radio on so that your customers can hear it you have to pay for a licence from the station in question.

TV *inside* the big brother house? giggle.

(They aren't allowed any contact with the outside world, they even had the magazines they brought in confiscated this year)

Accepted. My bad.

theoretically they could get you for a single snare hit

I don't know what recent cases may have established precedents for this -- especially since peer-to-peer trading has diverted pretty much all focus from sampling issues -- but if anyone felt like shouldering the cost of litigation for really minute micro-house style sampling there's absolutely no doubt in my mind that they'd be let off. In US copyright law all the "reasonable-listener" tests for intent and proportion and economic impact are still very much valid, and one would be pretty hard pressed to convince a room full of average folks that your .25-second harmonica blip on "Jeep Sex" creates any sort of similarity or competition between the products. Just stick a modernist collage on an easel, point to a bit of visible newspaper text in there, and let it speak for itself.

That is, of course, if you want to let someone sue you and bother going through the whole process. I'd actually appreciate it if someone did bother doing this, just so a clear precedent would be set and the next guy down the road wouldn't have to worry about defending himself in a test case. But I have very very little doubt that micro-sampling would quickly be determined as fair use.

I mean, I understand the original creator's very powerful argument in this regard -- that (a) someone else is making product whose appeal lies in part on the specific textures and ambiance that they created in the studio, if not actual melodies and structures, and that (b) this creates an uneven playing field in which some people actually buy instruments and go into studios and spend hours tweaking those sounds so they're texturally ideal plus actually writes songs around them, whereas someone else just fires up the sampler and assembles the songs -- and I'm even inclined to agree with these arguments to a certain extent, but I doubt in a settled trial that non-music-followers would go for it. Which is to the credit of micro-sampling, I guess: the average person would listen to "Jeep Sex" and then one of the original pieces and say "I don't know what this new thing is but it certainly has nothing to do with that" -- they would look at them as consumer options and think mainly of the fact that they are absolutely not substitutes.

But anyway it would take massive coincidental strokes of luck for one of the sampled artists to actually come across the sampling track, notice him or herself in it, and feel like doing anything about it: the flying-under-radar potential here is near-infinite, which is why I keep stealing snare hits from people.

Hahaha other solution is: microsample electronica. Think you can prove that that's your Roland and not someone else's?

I thought "fair use" referred to the quoting of materials in reviews of said material -- quoting books in book reviews, playing snippets of songs on radio/TV shows, or showing movie clips on TV. And that no one is allowed to quote for use in their own works, regardless of length.

On the other hand, I know the law here (or was it in Tassie?) is that if you own a commercial place (shop, hair-dresser, cafe etc.) and you want to have the radio on so that your customers can hear it you have to pay for a licence from the station in question.

Almost. If music is publically broadcast in stores, etc in Australia the shop has to get a licence from APRA (the Australian Performance Royalties mob)

My German friend Roland had to remove the song taht used the drum intro from "Superstitious" by Stevie Wonder.It was kind of silly of them but he did sample the entire beat. In a way this type of censorship delights me because I often wish people like Moby and Fat Boy Slim would be silenced and their feeble reconstructions of what were once good songs would be banned. If you hear a funky song, don't steal it and add drum beats!

That s being said, websites that host your music would much rather have you remove samples than dela with a lawsuit. Otherwise samples can be used creatively if they dont form the actual song, like "U Can't Touch THis"

R here (for it is I!).

Thanks to Jeff for posting on my behalf and thanks for all the follow- ups.

I'm sure it is just the site owners covering their collective asses but it's a pity nevertheless. I'm just wondering what's going to happen if I try to release these recordings commercially...

What puzzles me is that shortwave radio has been used as a "found sound" source by composers and musicians for *decades* and presumably the PRS or whoever don't go knocking on Karlheinz Stockhausen's door saying, "that piece you just wrote happened to feature 0.5 seconds of a Turkish hit from 1943 which reached number 87 in the Turkish top 100"...

How do people like this manage to get away with using radio?

Robbie

Even assuming the original artists know about it, it's just not worth pursuing in court. Stockhausen is not stealing sales of that Turkish track by sampling it. And the original poster is not stealing sales either, but the site probably has a blanket policy of no sampling to avoid having to defend against a suit.

NickN and Hanle y have accurately described the considerations at play here.

The creator of a derivative work (such as a recording that samples portions of copyrighted master recordings) may attempt to demonstrate fair use by showing that the derivative work so transforms the original so as to constitute an original artistic expression. However, the consideration is still subject to other factors such as the threat to the market for the original.

[Website X] has likely made a blanket cost-benefit determination that the potential hassle of defending against nuisance copyright claims outweighs even the extreme unlikelihood that infringement would be found.

The risk in [Website X]'s eyes is perhaps increased here by the acknowledgement that "the title [R] submitted the composition under . . . stated openly that it was based on radio transmissions" since that raises the possibility, however remote, of intentional copyright infringment, for which attorneys fees and statutory fines are available in addition to actual damages. [Website X] would be contributorily liabile for any such costs, so, although the likelihood of any actual liability or damages is remote, [Website X] has chosen to avoid any possible risk.

As far as commercial release, R may register the recordings himself [go to www.uspto.gov] and a presumption of validity attaches 5 years after registration if nobody objects. R can indemnify any company that wants to release the recordings. FWIW, sampling claims are made quite frequently and can tie up of payment of publishing royalties for considerable periods of time, even if the release of the records themselves are not enjoined.

Caveat that the foregoing applies to U.S. copyright law.

In the UK, any use of a sample will be breach of copyright under the Copyright Designs and Patents Act. Music overheard on the radio on Big Brother and the like is covered by a PRS licence held by the broadcaster, and even then in many cases is limited to a 30 second segment.

If you look at it practically though, it all comes down to whether the ccopyright holder and his or her agent can be bothered to take action. But on the internet, where there's a degree of uncertainty in everything legal, people are being very careful indeed.