“If An Artist Samples Less Than 3 Seconds Of A Copyrighted Song, It Falls Under Fair Use..."
I was told this one by a high school instructor, and figured it was BS.
I should probably forward this to him; for his students sake.
It's pretty funny how rumors about things manage to spread so well. Stuff like a "three requests" policy sounds plausibly convenient enough for people to imagine it's true. I can only assume this is because the reality of copyright law is; frankly nuts.
Yes, he (the author) is absolutely wrong on fair use, at the same time; in the context of making commercial media I can't fault the "get clearance" advice. The legal penalties if the court doesn't like your fair use argument are steep. The real reason for the forward would be my cynical evaluation that handling the issue honestly (eg: Actually explaining fair use and that the metrics he cites aren't rules at all.) would just end up with him writing off 3 second samples as fair use per his convenient reading of the law and repeating the same advice unfettered.
It's easier to get people to do the right thing for the wrong reason.[0][1]
When considering his arguments, please bear in mind:
a) he is only detailing US law, the nuances of copyright law vary around the world
b) as he states, he is not a lawyer
c) not every violation of copyright law ends up in court
d) not every copyright law case in court is ends up being a violation
e) the world is moving on
f) the law often doesn't keep up with the real world
g) it all sucks. mostly.
HE's not a lawyer, and he's not correct. See the blog comments for examples: vaguely right, but really this is therefore about as useful as a chocolate teapot.
Oh dear. Clearly he doesn't understand Fair Use. He categorically states you cannot sample something under any circumstances without permission.
As it turns out, Fair Use provisions fall under 17 U.S.C. § 107, which reads:
Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
It really, really helps to read up on this sort of stuff before you spout off on it. Even typing "fair use" into Google takes you to Wikipedia, which explains the concept clearly and in detail.
Bottom line: don't trust what this guy says. He can't even do basic research.
He is right though in that there is no clear algorithm you can follow to test if your sample falls under Fair Use. And if you intend to release your music them it's probably safest to assume that you're not covered by fair use.
It is you who does not understand what he (the author of TFA) is talking about (admittedly he's not being very clear). He's using "sampling" as it's used in the DJ and electronic music scene, to mean "include part of one commercial piece of music in another commercial piece of music".
And he's absolutely right: that's not "for purposes such as criticism, comment, news reporting, teaching [..], scholarship, or research", so it does not fall under fair use, and the length and nature of the sample is completely irrelevant.
"So let’s set the record straight. You cannot legally sample music without clearance. It begins and ends there. If someone were to take a tiny clip of one of my songs, pitch it down to 10% speed, reverse it, and slam 8 minutes of echo on it, I could sue their pants off (not that I would, or even be able to detect such a thing)."
He's saying this under all circumstances. Note that you can create works for commercial purposes for teaching. If course, the statute states that this will be taken into consideration.
Now don't get me wrong, fair use is a nebulous thing. You'll most likely not fall under fair use provisions in most circumstances. It's not always clear what a court will decide, so I agree - if you sample, best to get permission! But making sweeping statements that something is not and will never be covered under fair use is wrong.
As much as I dislike arguing semantics, the resolution of this comes down to the definition of "sample". For what it's worth, I read it to mean for the use in commercial works.
>And he's absolutely right: that's not "for purposes such as criticism, comment, news reporting, teaching [..], scholarship, or research", so it does not fall under fair use, and the length and nature of the sample is completely irrelevant.
That's simply untrue.
Firstly, there is a concept in copyright law called de minimis that potentially defends this kind of sampling in cases where it is so small it does not reproduce the original work in a substantial fashion (e.g. [1] in which copyrighted photos used in the background of a commercial film without permission were ruled to be de minimis and not infringing). This would not apply in every case of sampling, but would depend upon the length and substantiality of the sample used.
Secondly, such a sample could arguably be used under the parody fair use exemption. Something being released commercially does not preclude it being a parody.
[1] Sandoval v. New Line Cinema Corp., 147 F.3d 215 (2nd Cir., 1998)
There are any number of commercial copyright infringements that are protected by fair use under US law. However, there's a Sixth Circuit case from 2005 that bears on sampling in particular, essentially eliminating the de minimis defense for sampling: http://en.wikipedia.org/wiki/Bridgeport_Music,_Inc._v._Dimen...
Sampling is a different type of use subject to mandatory licensing laws peculiar to the music industry. There are analogous laws in the Europe, but they are not as permissive as the U.S. laws.
It is, however, legal to copy a CD to your computer or download something from iTunes and re-encode it to an MP3. However, you legally cannot make a tangible duplication (burn another CD).
Is this right? I understood the 1992 Audio Home Recording Act explicitly permitted making of backups for noncommercial use & the DMCA only rescinded this where there was anti-copying mechanisms.
What is interesting is that he misses the biggest myth in which belief hurts creators of original works.
Unless the author of a work is an employee or explicitly assigns copyright to someone else, the author retains the copyright. In other words, the freelance copywriter owns the copyright not the piano company unless the copywriter explicitly assigned copyright to the piano company.
The relevance for software development (or in my case architectural practice) is that the work product of contract programmer (or drafter) does not belong to developer (or architect) absent explicit assignment of copyright.
Absent a properly structured contract, a contract programmer may share code they wrote as they wish. Furthermore, a less scrupulous person might make claims of code authorship which are difficult to disprove despite going beyond what they actually authored.
How interesting; I was under the impression that work done by a freelancer was automatically considered to be a work for hire. But you appear to be right.
Unless the contract explicitly states that it is work for hire, it isn't.
I will add that as layers get added to the contract relations - subcontractors used by the contractor, sub-subcontractors by the subcontractor, etc. - the exposure grows.
This sort of issue is largely addressed within my industry via standard contracts developed over the course of 100 years. However, they only go a few layers deep because this is sufficient given the economics.
On the other hand, the economics of software development are such that even a tiny piece of code might be deemed to contribute several million dollars of value.
IP created by an employee is "work for hire" because it is assumed that all of the employee's work is specific to the employer. A contractor may perform the same task for many different clients, so a contractor's work is not the IP of the client unless the contract explicitly states that that is a work for hire or is assigned to the client.
> Unless the author of a work is an employee or explicitly assigns copyright to someone else, the author retains the copyright.
Presumably you're talking from a US perspective. I've no idea about US law, but certainly here in the UK, while that's true in theory it's pretty flexible in practice.
E.g. there was a case* where Doc Martens commissioned a logo but didn't use a proper contract, and didn't get the designer to assign copyright to them. The designer then tried to sell the logo to a competitor. The courts had no trouble at all finding there was an implied term in the contract transferring the copyright to Doc Martens. Such a term was necessary to give the usual business efficacy to a contract for logo design. I.e. if you'd asked the parties at the time of contracting whether the designer would retain the copyright and so the right to sell it to a competitor, both of them would have said 'of course not'.
Nah, the case was just about the copyright ownership. The company that bought the copyright (Raben) was an Australian footwear company that sold Doc Martens. Griggs weren't trying to stop them using the logo and there was no passing off, so there was no suggestion of a registered trademark or passing off action. They just wanted a declaration that they own the copyright, for obvious reasons. (It's not clear why Raben bought the copyright off the designer and what they were planning on doing with it. Apparently they just didn't like Griggs and wanted to piss them off... see first instance para 12).
>However, you legally cannot make a tangible duplication (burn another CD).
There is zero precedent for this one way or the other, but the only people who seem to agree with the author on this extreme point of view are the RIAA. And even they say it's ok if you buy those royalty-paid Audio CD-Rs. Everyone else seems to agree that making a copy of a CD for personal use a blindingly obvious case of fair use.
Both the article and the comments here and on the blog suffer from the mistake of being binary.
You can get in trouble for copyright violation for doing anything. Reality and law have nothing to do with it. Its a common techie misconception that there exists a root password or exploit to the law. Law is an engineering puzzle with factors of safety based on human judgement, not a mathematical puzzle or proof.
What the author wrote is basically true, from the perspective of what you need to do at the level where you want a typical judge to laugh an accusation out of his court. In strict contrast, most of the comments here and on the the blog are "if you wish really hard, this is the way I'd like it to be" or at best "at least some people after spending tens of thousands on legal defense won at least one case trying this" and even more hilarious "Sure its illegal, but most people get away with it".
There are several analogies with online discussion of speeding tickets and cars.
The title of this article could apply very well to the contents of itself. In addition to the things mentioned by other commenters, this was odd and clearly wrong:
> Even if you get a response saying “go for it!”, that provides you with nothing in the terms of US copyright law.
Promissory estoppel would surely bar collection of damages where the rights holder gave unequivocal permission to use the copyrighted material.
This seems like an interesting article, but I was only able to read a few paragraphs before all the letters got jumbled in my visual cortex and I got a headache. For the love of god, light text on a dark background is a bad idea: http://blog.tatham.oddie.com.au/2008/10/13/why-light-text-on...
38 comments
[ 3.2 ms ] story [ 123 ms ] threadI was told this one by a high school instructor, and figured it was BS.
I should probably forward this to him; for his students sake.
It's pretty funny how rumors about things manage to spread so well. Stuff like a "three requests" policy sounds plausibly convenient enough for people to imagine it's true. I can only assume this is because the reality of copyright law is; frankly nuts.
It's easier to get people to do the right thing for the wrong reason.[0][1]
[0]: Though it's a lot harder to divert course later once you've employed this method. (http://lesswrong.com/lw/uz/protected_from_myself/)
[1]: That's not something I do often, either.
If you insist on shaving a dead cat 21 ways the whole world is probably fine with you keeping it to yourself.
Uhh, this may depend on the country but I thought an archival copy of something like a CD was permitted?
With software, for instance, you're allowed to make a backup physical copy under UK law.
:)
That sounds delicious.
As it turns out, Fair Use provisions fall under 17 U.S.C. § 107, which reads:
Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
It really, really helps to read up on this sort of stuff before you spout off on it. Even typing "fair use" into Google takes you to Wikipedia, which explains the concept clearly and in detail.
Bottom line: don't trust what this guy says. He can't even do basic research.
Incidentally, no argument from me: if you intend to release your music, you probably aren't covered under fair use if you sample another song.
And he's absolutely right: that's not "for purposes such as criticism, comment, news reporting, teaching [..], scholarship, or research", so it does not fall under fair use, and the length and nature of the sample is completely irrelevant.
"So let’s set the record straight. You cannot legally sample music without clearance. It begins and ends there. If someone were to take a tiny clip of one of my songs, pitch it down to 10% speed, reverse it, and slam 8 minutes of echo on it, I could sue their pants off (not that I would, or even be able to detect such a thing)."
He's saying this under all circumstances. Note that you can create works for commercial purposes for teaching. If course, the statute states that this will be taken into consideration.
Now don't get me wrong, fair use is a nebulous thing. You'll most likely not fall under fair use provisions in most circumstances. It's not always clear what a court will decide, so I agree - if you sample, best to get permission! But making sweeping statements that something is not and will never be covered under fair use is wrong.
That's simply untrue.
Firstly, there is a concept in copyright law called de minimis that potentially defends this kind of sampling in cases where it is so small it does not reproduce the original work in a substantial fashion (e.g. [1] in which copyrighted photos used in the background of a commercial film without permission were ruled to be de minimis and not infringing). This would not apply in every case of sampling, but would depend upon the length and substantiality of the sample used.
Secondly, such a sample could arguably be used under the parody fair use exemption. Something being released commercially does not preclude it being a parody.
[1] Sandoval v. New Line Cinema Corp., 147 F.3d 215 (2nd Cir., 1998)
> Court of Appeals rejects de minimis defense to claim for copyright infringement of a sound recording.
http://waxy.org/2011/12/no_copyright_intended/
Is this right? I understood the 1992 Audio Home Recording Act explicitly permitted making of backups for noncommercial use & the DMCA only rescinded this where there was anti-copying mechanisms.
See https://en.wikipedia.org/wiki/Audio_Home_Recording_Act#Exemp...
What is interesting is that he misses the biggest myth in which belief hurts creators of original works.
Unless the author of a work is an employee or explicitly assigns copyright to someone else, the author retains the copyright. In other words, the freelance copywriter owns the copyright not the piano company unless the copywriter explicitly assigned copyright to the piano company.
The relevance for software development (or in my case architectural practice) is that the work product of contract programmer (or drafter) does not belong to developer (or architect) absent explicit assignment of copyright.
Absent a properly structured contract, a contract programmer may share code they wrote as they wish. Furthermore, a less scrupulous person might make claims of code authorship which are difficult to disprove despite going beyond what they actually authored.
I will add that as layers get added to the contract relations - subcontractors used by the contractor, sub-subcontractors by the subcontractor, etc. - the exposure grows.
This sort of issue is largely addressed within my industry via standard contracts developed over the course of 100 years. However, they only go a few layers deep because this is sufficient given the economics.
On the other hand, the economics of software development are such that even a tiny piece of code might be deemed to contribute several million dollars of value.
Presumably you're talking from a US perspective. I've no idea about US law, but certainly here in the UK, while that's true in theory it's pretty flexible in practice.
E.g. there was a case* where Doc Martens commissioned a logo but didn't use a proper contract, and didn't get the designer to assign copyright to them. The designer then tried to sell the logo to a competitor. The courts had no trouble at all finding there was an implied term in the contract transferring the copyright to Doc Martens. Such a term was necessary to give the usual business efficacy to a contract for logo design. I.e. if you'd asked the parties at the time of contracting whether the designer would retain the copyright and so the right to sell it to a competitor, both of them would have said 'of course not'.
* Griggs v Evans [2005] EWCA Civ 11
IANYAL.
Here's the first instance decision, which explains the background: http://www.5rb.com/docs/Griggs%20Group%20Ltd-v-Evans%20ChD%2...
And the CA decision: http://judgmental.org.uk/judgments/EWCA-Civ/2005/[2005]_EWCA... (currently down, but google has it cached if you don't have westlaw access)
There is zero precedent for this one way or the other, but the only people who seem to agree with the author on this extreme point of view are the RIAA. And even they say it's ok if you buy those royalty-paid Audio CD-Rs. Everyone else seems to agree that making a copy of a CD for personal use a blindingly obvious case of fair use.
You can get in trouble for copyright violation for doing anything. Reality and law have nothing to do with it. Its a common techie misconception that there exists a root password or exploit to the law. Law is an engineering puzzle with factors of safety based on human judgement, not a mathematical puzzle or proof.
What the author wrote is basically true, from the perspective of what you need to do at the level where you want a typical judge to laugh an accusation out of his court. In strict contrast, most of the comments here and on the the blog are "if you wish really hard, this is the way I'd like it to be" or at best "at least some people after spending tens of thousands on legal defense won at least one case trying this" and even more hilarious "Sure its illegal, but most people get away with it".
There are several analogies with online discussion of speeding tickets and cars.
> Even if you get a response saying “go for it!”, that provides you with nothing in the terms of US copyright law.
Promissory estoppel would surely bar collection of damages where the rights holder gave unequivocal permission to use the copyrighted material.