Music Remixing and Copyrights

[CrackerStealth]

I am curious as to the laws (Canadian based) surrounding remixing music. A friend and myself have been working on a song, but it uses five aprrox 10 second clips from another song. These clips are used as loops for some of the background music, but our own vocals are placed on the track as well as additional instrument loops created by us.

We wanted to provide the song with a video project free for viewing on the internet, but I would like to know what we need as far as permissions from the copyright holders. Or does this constitute fair use in any shape or form?

[Eugenia Loli-Queru]

I don't think you will get a straight answer here about Canadian laws. There are 2-3 lawyers in this forum but from what I know they are all in USA. I think your best bet is to actually ask a Canadian IP lawyer.

If you don't have the money for that, just simply use Creative Commons "BY" Attribution music (not the other kinds of CC though), so the only thing you would need to do is give some attribution in the credits. Get such music at Jamendo.com. Again, make sure that the right sidebar says ONLY "attribution", the other kinds of CC music are restrictive.

[1]

There's a lot of discussion here and other places on this subject. Might want to do a search, as it will provide more info than what I can here and now.

Fair use is up to the interpretation of the courts.

Basically it's ILLEGAL to use anyone else's work without permission. The fact that you make no money from it makes NO DIFFERENCE AT ALL, the fact that it is for public viewing makes all the difference.

I've mentioned this before,; it deals with Public Domain, Fair Use, and trademark issues, especially written for documentary films:
http://www.law.duke.edu/cspd/comics/digital.php

Direct link to the HTML version:
http://www.law.duke.edu/cspd/comics/zoomcomic.html

Direct link to the PDF download version:
http://www.law.duke.edu/cspd/comics/...dcomichigh.pdf

[CrackerStealth]

Thanks #1. That comic answered my question. Page 38 covers my situation exactly. Seems like our song is fair use as it can be seen as a parody.

[Eugenia Loli-Queru]

>Seems like our song is fair use as it can be seen as a parody.

First of all, there is no such thing as "thought to be fair use". To get the stamp of "fair use", you will have to be SUED first. Only a court can say that something is fair use or not, no one else can claim it. Do you want to take the chance of going to a court? Unless your song/video is VERY clearly a parody, you are walking on shaky ground.

Second, this is the US law you just read about. You are in Canada.

[CrackerStealth]

I was going explain my reasoning that would reply to both your comments, but decided it sounded to... argumentative.

I will say that I am fairly confident in what I think and the reasons leading up to it, wether I'm right or wrong.

[1]

Yeah, what Eugenia said.

Although, that comic isn't a law book, and wasn't offered here as such, no matter what location. It's more of a guide, like the 'code' in Pirates of the Caribbean.

And I also recommend to read the foreword by Davis Guggenheim.



But it's funny how some just pull out whatever they want in order to answer their question the way they want it answered!
Not necessarily meaning you, cracker, just generally speaking. If for parody, and low key, chances are no one will sue (or even see it! )
Have you seen what is on youtube, and linked here to vimeo? It's 90% copyright infringement stuff.

The REAL problem becomes when you want your work distributed.

[CrackerStealth]

My thinking exactly really. Infringement or not, worst case scenario I'll get a legal letter statiing I need to remove the remix from my site long before I'd get sued. I don't believe damages could outweight the cost of a court hearing so a simple scare tactic would seem to be the most likely initial reaction if one happens at all before a summons to court would come.

[markone]

Cracker, just some additional food for thought, use the loops, give credit.. if the "cease and desist" letter comes, apoligize profusley, feign ignorance and say you'll never do it again.. or not.

In the production world I live in, we only use licensed music because the potential for liability is so great, especially since we create productions for profit.. Didn't Vanilla Ice get into some hot water (and melt) due to his ripping off David Bowie and using the looped intro for "Ice, Ice Baby"..

Speaking of ice, this subject is always slippery ground (pun intended)

Mark Carey
www.markoneHD.com

[CrackerStealth]

I don't live in a production world. I'm just doing a project for fun and learning. I did find this to be an interestign read though: http://www.publaw.com/parody.html

I did, however, send a letter to request permission to use the work in a remix. Figured it couldn't hurt to ask.

[CrackerStealth]

In case anyone is ineterested. I found out the "Parody Defense" does not exist in Canada: http://www.cippic.ca/copyright-law/

Parody's are seemingly not legal in Canadian copyrights.

Also, VCR's and PVR's are technically illegal, lol.

[Eugenia Loli-Queru]

That's why I said to check the Canadian law first and not draw conclusions from the US one. Honestly, I wouldn't do that parody if I were you.

[Dr. Benway]

Copyright, mmm. Postmodernist appropriation or modernist captialism? It's an ethically dicey area and one of conflict between those who think that [almost] anything goes in contemporary creativity (such as me) and vested commercial interests with baying packs of lawyers.

Consider this: in creating a 'new' work that you will copyright can you honestly say it is 100% original and without precedent?

Of course you can't. So are you going to pay a 'fee' to your influences be they Bjork, Tim Burton, Michael Mann et al?

Okay, so the difference here is the tangible product being used as opposed to the 'intellectual copyright' on ideas and style.

Sure, we all want to be proud of our work and an innate part of us wants to protect any future monies that it may generate.

So, references need to be oblique and not wholesale rip-offs. The question is one of degrees; the area greatest friction is at the intersection between the oblique and the overt.

[1]

Dr. B, I recall reading the exact same post of your before!

[1]

Cracker, it would be cool if you could come up with original material IMHO, but it's a little hypocritical to chastise you for this, if even this forum is littered with similar infringements. I used to take a harder line than I do now...but I finally gave up.
Just the other day I watched the beginning of a video on here (well, linked here to vimeo) that uses copyrighted music. In fact, I'd say about 90% of them do.
That's all copyright violation.
I'm amazed that vimeo and youtube haven't been shut down because of this already, and would have to concede that this fight against using copyrighted material is obviously becoming weaker, and 'the industry' is apparently pursuing this only where they see a direct loss or damage to themselves.

I take pride in making videos/docus that use music with the author's and recording company/person's permission. I recommend other do the same, but ultimately I'm realistic also.

[CycleWriter]

Just the other day I watched the beginning of a video on here (well, linked here to vimeo) that uses copyrighted music.

Oh, snap! I'm busted!

[Eugenia Loli-Queru]

Everyone, please watch the following video. Larry Lessig is an amazing guy, he almost ran for Congress a few months ago but he decided against it the last moment.
http://www.ted.com/index.php/talks/view/id/187
He is the guy who took Disney and their "mickey mouse copyright law" to the highest court in US. He is also the guy who created Creative Commons. That video really explains the problem and why BOTH sides of the fence are wrong. Trust me, it's 15 minutes well spent.

I am against violating the law (which is why I am always using CC-BY music), however this does NOT mean that the copyright law we currently have in the US and UK and elsewhere is fair. It's too restrictive, and art should not be THAT restrictive because without art circulating and reused in NEW innovative ways we can't evolve as a civilization. Art is one of the reasons why Neatherdals couldn't fight off the Homo Sapiens: art had opened new horizons for the Homo Sapiens, they innovated and improvised.

So what I suggest to my readers usually is three fold:
1. Always obey the law, even if you don't like the law.
2. Use CC-BY or other royalty free music for your videos.
3. Buy music for your iPod listening only from indie and CC bands. If no one buys from the majors, they will eventually financially weaken and they will stop lobbying for mamamamaty laws like these new ones: http://www.smh.com.au/news/perspecti...863545123.html

And of course, write to your congressman.

It's one thing to respect the law, and another to sit tight while these guys are taking us in the a$$. Sorry for the language, but if such laws pass internationally, it's like we live in a dictatorship -- no matter in which country you are in as these laws are meant for many countries that are in the commerce treaties.

[Dr. Benway]

I like Eugenia's style. And yes Mal, that's my take on things, at this stage. We shouldn't just be ripping each other off willy nilly just as commercial cultural monopolies shouldn't claim to own everything that has come out of a history of collective learning, some give and take in the creative flux is vital.

And then we get deeper by looking at how the animators at Disney were/are employees and items created on the bosses time are owned by the boss, and anyway they are paid a salary to produce. But whose creativity is it; that of the managers who are running the business selling the product or the animators? It is a team effort.

The same idea is part of the education system in New Zealand where as a student of a tertiary institution anything created at school belongs to the school. With cases of tutors physically appropriating the works of students for profit or promotion. The whole thing gets really messy.

I worked from home and refused to work in the studios at school thereby telling them to go ferk themselves.

[colonelpanic]

Caution - musician's talk ahead...

Technically speaking, your project might not even be a remix. It might be a new song which uses a sample as an additional element in the arrangement. This can be a big difference in terms of credits/author's rights/royalties etc. Musically speaking, it depends on how close (or far away) your new arrangement really is to the original. Only hearing is believing in your case.

When you write a new song that contains a sample of somebody else's work, you usually are the originator of that new song with the originator(s) of the sample as co-authors. There is admittedly a certain grey zone, subject to interpretation of what a predominant element is for that particular sampled song. In cases where the original is not recognisable anymore, ie. the sample is no predominant element of the new song, it might be enough to just clear the sample with a one-off fee and give it a separate mention in the credits. In other cases you might have to give full author's credits (apart from other fees) which also push through to the performing rights societies like ASCAP, PRS etc.

When you remix a song, ie. you take all existing predominant elements (the elements that 'make' the song, that's usually the vocals, the hook line and the chord progressions) and recombine these elements into a new mix you are usually paid a one-off remix fee (negotiable, as everything in this biZ). On the other hand you'll obtain no PRS entry and credits as composer.

It could look like this

Your song containing a sample

"Can I sample some?" by CrackerStealth
(Music: CrackerStealth, Busta Nut/ Lyrics: Jo Blo)
Contains a sample from "Hell no!" by Busta Nut

Remix of the song "Get down with the beat":

"Get down with the beat" by LFO (CrackerStealth remix)
(Music: Gordon Welsh / Lyrics: Sick Sense)

BTW the names in brackets underneath the song, that's where the real money is.

Anyway, technicalities aside.

Before you get cracking you must clear the sample, meaning you need to contact the publisher and/or the record label and sometimes even the composer(s)/songwriter(s) themselves to get permission to use their sample in your track. Not saying this is an easy part of the process, however it is not what many people tend to believe is unachievable. It might cost you 'a bit' though. A fair bit in many cases, although we've been unbelievably lucky once in the mid 90s when we got permission to use a sample from a Teddy Riley track - that is, for free! The track was a flop anyway when it first came out, so Teddy in person gave us the go-ahead saying 'make the best out of it'.

All these issues are handled on a case by case basis and are usually negotiable (and sometimes even a welcome negotiation, especially among artists who slipped a bit out of public awareness and whose sales figures went south).

There is no 'black or white' in sampling issues. Everything is negotiable. However always keep in mind to clear the field before you release something.

Alternatively, you could always purchase a licence for a cover version from Harry Fox - usually much cheaper - and re-record the whole song with your own musicians. In that case you can then use the samples of the cover version to your liking. The thing is though, you won't see a penny in royalties if you ever release it on a commercial scale. All public performance royalties will go to the original composers/songwriters - (that's one of the reasons why it's quite easy to get permission for cover versions).

good luck

[1]

Great, informative post, Col. Panic!

[CrackerStealth]

Very good information. Thats what Ilike to see. I've sent a letter to the publishers and I at least plan on finishing the song and video. If I don't get permission then the video will never go farther than degrading on my raid mirroring array until the day both drives die simotaneously.

This really isn't an important work for me because its just something we are throwing together to try out my new HV20 and until my keyboard arrives.

[David]

Alternatively, you could always purchase a licence for a cover version from Harry Fox - usually much cheaper - and re-record the whole song with your own musicians. In that case you can then use the samples of the cover version to your liking.

FWIW, Harry Fox no longer deals with synch licensing which is the license you need to "synchronize" music with an image.

[previdman]

...But whose creativity is it; that of the managers who are running the business selling the product or the animators? It is a team effort...

A work for hire is clearly defined under copyright law. As is a derivative work along with necessary requirements of attribution. Even a derivative work from a PD source is required documentation on the copyright application.

Most employers, as pre-condition to employment, require an employee's signed agreement that any and all rights to patent or copyright, derived from while under their employ, rests wholly and solely with the company. The companies don't do that because they're greedy, they do it to avert potential future litigation.

From a purely legal sense, it's not a matter of whether or not you're breaking the 'law' because you are. Period.

But in reality it's more a matter of will you get caught?

The answer is probably not but since we're talking reality here remember this:
EVEN IF SOMEHOW YOU COULD BE IN THE RIGHT, the cost in time, angst and real money JUST TO DEFEND YOURSELF (NOT NECESSARILY WIN) will bring most people to the pre-trial settlement table. In fact just retaining a competent attorney will cost more than most people want/have to spend.

And IF you happen to be brave enough (or stupid enough, depends on who you ask) to take it to trial, I might admire your tenacity but only from afar as you will most certainly lose, even if you win.

Why? How much money are you willing/able to throw at this case? If the actual use wasn't important enough for you to get legal clearance beforehand, how can you justify spending thousands of dollars defending it afterwards?

And IF it IS that important, like I said, most all true professionals will seek clearance BEFOREHAND.

It's not that difficult to understand. Accept, maybe but not understand. And you'll have no true defense in a court of law. Just a plaintiff with deep pockets looking to make an example of you. They have the 'law' on their side, make no mistake about it.

And fair use? It's so ambiguous you'd be better off playing against the house in Vegas. (Not the editing program, pay attention!)

So ya' gotta ask yourself with each instance of 'borrowing' someone else's stuff....

"Do you feel lucky, punk? Well, do you?"

Oh crap. I think I just violated somebody's copyright with that question.

[kruzer]

it's not that difficult to write your own song or music.
Takes a lot less energy and hassle.