Well now. That talk made the discussion clear as mud.
Seriously two thoughts came to mind:
When was the presentation given? Ableton published the video on March 19, 2019 so I'm slightly reassured the presentation is current.
Are either of the two cases mentioned in the presentation under appeal? The answer is not readily available so there is no way to know if the definition of infringement of US copyright law will be clarified.
I recently heard a sample that you can buy on Splice. It's basically a guy humming/beat boxing the bass line from Rapper's Delight (Sugar Hill Gang), which is also the bass line in Good Times (Chic), which is also a bass line from an older more unknown soul record.
Imagine 10 different people buy that sample from Splice and use it unaltered on 10 different tracks that are all published on Spotify. Who will sue who? It is hard to believe that a jury "consisting of ordinary people" would say it is fair use.
Edit: Oh, and I think attorneys love the "mud" with contradictory or unclear rulings, because that is how they get clients!
The second case he talked about is 2nd Circuit which means Appeals. I kinda follow the Thicke case and I haven't heard of it being appealed. I think I read they settled it out by paying several mil to Gaye's estate.
I thought he explained the "mud" element pretty clearly when he demonstrated what he did with Uptown Funk. He took samples from that recording and smushed them up so much as to be completely unrecognizable. My takeaway was that would probably be OK but the operative word is "probably". Attorneys' crystal balls are no clearer than anybody else's. If somebody sued somebody for mashing samples up so far as to be unrecognizable and you went to him to defend he would probably say there could be a decent defense here and quote you a fee. There are NEVER any guarantees when you go to court.
People need to read these actual cases based on the trial transcripts to really understand what went on. I'm a nerd with no life and actually do read some of that stuff...
The main thing is you can do anything you want and get away with it if your song never goes anywhere like online for example. Oh, you want to put it up on YouTube? Then be careful. If you're worried about it then don't sample or write or create a certain feel that sounds like a copy of something else. Just don't do it and this whole conversation is moot.
Other than don’t copy or don’t sample other folks. Can anyone tell me what this guy actually said. I could not say I was in anyway enlightened (but then again American English is not my native tongue.)
Tony
Last edited by Teunis; 05/25/1909:46 PM.
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I can see it would be a bit tricky of you're not a native English speaker.
The first case was this: A famous group of producers freely admitted they loved a song done by Marvin Gaye and wrote a new song similar to it. It had different words and a different bass line but the overall feel and sound was very similar. When Gaye's family heard it they sued saying it was too close to what Marvin did and the court agreed it was copyright infringement. That was a big bomb dropped in the middle of the music biz because everybody thought the feel or rhythm or whatever was ok, it was specific musical licks or melodies they had to watch out for. I listened to both songs and yes they definitely have a certain ambience or overall feel in common even though the new one has different words. This case was not about specific samples it was about the feel of it.
His second point was where do you draw the line with copying samples? If you sample the bass line from Thriller and you can clearly hear it's the bass line from Thriller then forget it, you'll get sued. What he did was sample some parts of Uptown Funk but using Abelton Live he transformed the samples so much they had no resemblance at all to the original sound. He then posed the question, is this OK or not? His answer was "maybe".
These two cases have nothing specific to do with rap or hip hop, it concerns all music. He's talking about soundtracks from big movies like Star Wars or the Avengers, pop songs, classic country, whatever. And, he specifically said if you copy or sample something that is recognizable and release it you WILL get caught so don't even think about it. He even answered the question, how about just one bar? NO. How about just 2 beats? NO. If a third party listening to an original recording of yours can tell even one little thing was exactly the same as the original, you're screwed if the artist wants to sue. There is software now that can pick stuff like that up just like the software universities use to catch students trying to cheat on their term papers by plagiarizing books or other published papers.
Which was really the point of the talk, imo. He wasn't giving (much) specific legal advice. He was explaining the current (as of the date of the talk) state of the law. If the law (and the precedents set in the courts) are in flux, how is a concise answer even possible? His points about undermining the value of a copyright shouldn't be ignored either. If you've done no damage (you haven't usurped money or driven value from the original to your "homage") then a suit for damages is pointless. If you HAVE, then things are really slippery at the moment until settled more firmly. Beware.
It's also worth remembering that there are essentially two types of copyright pertaining to recorded music. Mechanical rights are about the actual recording. This is mostly what he demonstrated.
Publishing rights are about, essentially, what happens before a song is recorded to hard media (including computer hard-drives). Lyrics, melody, etc. This is mostly what he talked about in the Marvin Gaye scenario. They weren't accused of using even bits of the recording of that song, but copying one or more of the creative decisions made in the creation of the song. That's the "scary" one for music and musicians in general.
It's exceeding easy to NOT COPY recordings--not even a single lick or note. It's a more open question when "creative decisions" can be construed to infringe. Sometimes it's blatant and obvious. Other times it may be coincidental. And other times, it's just the nature of music that there are only so many choices available in progression or in intervals. As long as juries understand this, then I think they can be trusted to judge rightly.
I followed one of the references, the Estate of Marvin Gaye vs. Robin Thicke, who many here have probably heard of. A fairly routine copyright complaint suddenly takes a dystopian turn when the judge considers the idea that the song of the defendant had the same "feel" of the Marvin Gaye song.* This would be an outrage if it were not for the eerie pre-recognition of things possibly to come, as Google and Artificial Intelligence continue to team up to produce programs like China's "social credit system," which now has identified over three million "citizens of questionable social value," or thoughts. Not bad for a couple of years work. It takes no loss of the senses to imagine a world in which Google uses Ai to compile a data base of "finger prints," in a manner of speaking, of every element of the audio universe, carefully tabulated and cross referenced to suggest possible duplication that could be used to gin up litigation on behalf of lawsuit happy children of the creator. Not a leap at all. Add to this the fact that broad distribution makes it possible to claim a violation occurred in virtually any corner of the civilized world; meaning, with that much territory, plaintiffs are bound to find a sympathetic judge, somewhere. Typically, we underestimated Silicon Valley. We have heard the plan is to use copyright law to shut down criticism of media content, de facto censorship, or that the purpose of the tech giant's buying up intellectual property en masse was to start a super library. Silicon Valley is always two steps ahead of us. It is in the water. A good reference on this is UC Davis's Professor Darrell Hamamoto's "The Dark Side of Asian America." Darrell has the technocracy sussed. Here's more food for thought: https://www.cheatsheet.com/entertainment/music/a-court-date-has-been-set-for-the-copyright-infringement-lawsuit-against-ed-sheeran.html/ ................................ *"The basis of the Gaye defendants' claims is that 'Blurred Lines' and 'Got to Give It Up' 'feel' or 'sound' the same," the lawsuit states. "Being reminiscent of a 'sound' is not copyright infringement. The intent in producing 'Blurred Lines' was to evoke an era." https://www.nydailynews.com/entertainment/music-arts/robin-thicke-files-lawsuit-blurred-lines-article-1.1429185
Then.... there was the time when I was riding down the road....I was listening to a local gospel radio station and a song came on that made my jaw drop. It was by a local (in this state) gospel quartet. I forget the names involved but this song had a melody, lyrics and a groove that was practically a dead ringer for a song I had written a few years previous. I was floored by the similarities.
HOWEVER.....
The song I wrote was never released.... this was back before the internet was a thing. Stuff was still recorded mostly on tape and transferred to tapes. No chance they had heard my song.... at least not very likely. It was simply and amazing coincidence.
No I didn't get a lawyer, no I didn't sue.... I never heard that song from that group again. In fact... I never heard anything from that group. They probably faded into the dust heap of countless, faceless, gospel quartets.
You can find my music at: www.herbhartley.com Add nothing that adds nothing to the music. You can make excuses or you can make progress but not both.
The magic you are looking for is in the work you are avoiding.
Thanks for sharing - I found this to be very informative. Still a little muddy, yes - but he's an attorney in the subject and even he finds it muddy. Unfortunately the grey area on the subject right now is vast. I look forward to hearing where it all ends up.
There's a growing surplus of experimental artists on the underbelly of the hip hop and rock scene I follow. I have a suspicion as these laws get stricter and stricter, we'll see more and more experimental and abstract artists coming to the forefront. I could be wrong, but it'd be nice to see.
It's a tough time for pop artists though. It's scary knowing if something even has the vibe of another tune - by accident even - that you can be sued.
Edshaw, I am sending this out to all of my musician friends who are not on the forums. This explained a lot of way I dislike most of the songs on the radio today. It also explained why I like most of the music in the showcase!
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Thank you Mario. I hesitated to post that link. Your positive comment on it makes all the difference. Thx. Yeah, Ai and out of control domination is affecting so many areas, not to mention music. I also turned up a PBS Nova clip (3:00) on Deep Fakes, which I had only heard mentioned. https://www.pbs.org/wgbh/nova/video/deepfake-videos-are-getting-terrifyingly-real/ Not to dwell on it, but it goes to show what can happen when the business agents take over all the jobs, kind of like robots in an auto plant.
When computer-created music becomes more mainstream and computer AI's can easily detect copyright violation, maybe we'll get into a situation where computers start suing the computers over artificial intellectual property infringement.
John
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