Copyright musings

[Jim of Seattle]

I had a good friend who was a rock musician of some renown, and he explained to me that copyright laws only kick in after a certain length of a piece has been used, and it's different in different jurisdictions and context-specific, but typically there is a cutoff length under which one can legally use a piece of a copyrighted recording, even for uncredited and commercial purposes. So I couldn't use a 15-second excerpt from "We'll Sing in the Sunshine", but I'd be ok throwing in a 1/20th-second-long bit of it. That got me to thinking: Let's say for the sake of argument that cutoff length is one second. I have no idea what it really would be, this is just to make my point. So I include 0.99 seconds of Alanis Morrissette's "You Oughta Know" in something I professionally produce. I'm totally in the clear wrt copyright. Then 30 seconds later I excerpt the NEXT 0.99 seconds of "You Oughta Know". Still in the clear I assume. Let's say I do this 5 times. I've actually used 4.95 seconds of the song, just in little 0.99-length snippets 30 seconds apart with a bunch of original music in between. But what if that 30 seconds was actually 2 seconds? And what if that 2 seconds contains, say, only a drum beat? Now it's getting so that the song can almost be followed. Now change it so that there is one quarter of a second between each snippet, and silence in between. Am I violating anything now? And what if I change the sequence of those 5 snippets? Or what if I snip the entire song into 1675 tiny snippets, and I place a tenth of a second between each one, and 15% of them are out of sequence? What then? I'm sure there are scads of people who have asked these questions for years, and there are all variety of legal precedents and statues and policies and all setting out rules for this. But to me, it's a new line of thinking, so I'm sitting here typing it out.

[Lunkhead]

What your friend was talking about sounds a bit like "fair use" in the US:

https://en.wikipedia.org/wiki/Fair_use

Fair use is a doctrine in United States law that permits limited use of copyrighted material without having to first acquire permission from the copyright holder.

But the bad news about fair use of other peoples' music in your music is that it's not really allowed without acquiring a license anymore, after a couple music sampling lawsuit decisions in the 90s:

https://en.wikipedia.org/wiki/Fair_use#Music_sampling

The strict decision against rapper Biz Markie's appropriation of a Gilbert O'Sullivan song in the case Grand Upright Music, Ltd. v. Warner Bros. Records Inc.[46] changed practices and opinions overnight. Samples now had to be licensed, as long as they rose "to a level of legally cognizable appropriation." This left the door open for the de minimis doctrine, for short or unrecognizable samples; such uses would not rise to the level of copyright infringement, because under the de minimis doctrine, "the law does not care about trifles." However, three years later, the Sixth Circuit effectively eliminated the de minimis doctrine in the Bridgeport Music, Inc. v. Dimension Films case, holding that artists must "get a license or do not sample".

More info:

https://en.wikipedia.org/wiki/Sampling_(music)#Lawsuits

There are many hip-hops albums from prior to those lawsuit that could not be made today, due to the costs to license all the samples involved being prohibitive, like. The Beastie Boys "Paul's Boutique" is an example of one that I've listened to a ton.

[Jim of Seattle]

Huh. How interesting. So technically, I could construct an entire percussion track which is built out of extremely short samples of copyrighted music, and unenforceable as it would be, I would technically be violating copyright laws. Or would that fall below the threshold for "legally cognizable appropriation"? That phrase right there sounds like circular logic, doesn't it?

[Jim of Seattle]

John Cage's "4:33" contains four and a half minutes of complete silence. Does he own the copyright to silence? What if I released a digital cover of 4:33, and since it was produced digitally, it is truly silent. Now John Cage only owns the copyright to the silence in HIS recording of 4:33, but I now own the copyright to TOTAL silence with my digital cover. So any pop song that has silence in it, even for just a few seconds, would be violating my copyright.

[Lunkhead]

Huh. How interesting. So technically, I could construct an entire percussion track which is built out of extremely short samples of copyrighted music, and unenforceable as it would be, I would technically be violating copyright laws. Or would that fall below the threshold for "legally cognizable appropriation"? That phrase right there sounds like circular logic, doesn't it?

I am not a lawyer but that sounds like it would violate copyright laws to me, based on this from Wikipedia:

the Sixth Circuit effectively eliminated the de minimis doctrine in the Bridgeport Music, Inc. v. Dimension Films case, holding that artists must "get a license or do not sample".[/quote[

But there is more info here and it sounds a little bit less cut and dry, although a lot of what Nolo says amounts to "You can do the following and probably get away with it" vs "You can do the following and you're not technically violating copyright".

https://www.nolo.com/legal-encyclopedia ... 30165.html

[Pigfarmer Jr]

John Cage's "4:33" contains four and a half minutes of complete silence.

Actually, the music was the ambient sound the audience (and performers) made while sitting still for 4:33. It' starts as near silence and usually ends with some ruffling, coughs and maybe even nervous laughter in there somewhere. No two performances are quite the same.

[fluffy]

John Cage's "4:33" contains four and a half minutes of complete silence. Does he own the copyright to silence? What if I released a digital cover of 4:33, and since it was produced digitally, it is truly silent. Now John Cage only owns the copyright to the silence in HIS recording of 4:33, but I now own the copyright to TOTAL silence with my digital cover. So any pop song that has silence in it, even for just a few seconds, would be violating my copyright.

So, funny story about that, the copyright status of silence is pretty tricky in a lot of situations thanks to the prevalence of silent/hidden tracks in the 90s, and the aggressiveness of copyright-enforcement bots that tend to overfit on stupid things. (Similarly, copyright-enforcement bots that issue spurious takedowns on sounds of rain, birdsong, white noise, etc.).

Composition vs. recording rights are also a gigantic mess. For a good time, record yourself playing some popular piece of classical music and put it on YouTube and see how many copyright claims you get against it from unaffiliated recordings of the same piece!

Basically, modern copyright is a nightmare compounded by algorithmic nonsense.

One of my "favorite" situations that happened was when Adam Neely did a video defending Katy Perry against a spurious copyright claim:



only for his video to be issued a copyright claim, by Warner Media Group, on the part that Warner was shown to not have the copyright for:



The whole situation is all sorts of fucked-up and there's a lot of disinformation/misinformation out there and just like. Shitloads of confusion. And then the armchair-lawyer situation (e.g. threads like this one) don't help things any.

From my own personal experience, many years ago I did a meme video which involved me partially performing Für Elise, and having it copyright claimed by Sony Music for being too close to one of their recordings. Much more recently I made my own choral+string+piano arrangement of Royals by Lorde and posted the practice track privately on YouTube (for the benefit of the people performing it), whereupon it got a copyright claim... not from Lorde (which would have made sense), but from an entirely different string arrangement of the track that I'd never even heard of.

[Jim of Seattle]

Wow that is just so infuriating. None of this is about music. It's about using music as a channel with which to make a buck. The old "If I can maybe make some money this way, to hell with anything else, because that is justification enough".

This is another boldface list item why I'm so very glad I never went into any sort of profession with music. Because the saddest part about all that Katy Perry stuff is the time and effort this guy went to to make those videos, the time and effort the lawyers went to, the time and effort the other players went to. A whole huge amount of time and effort, and ultimately, to what end? What could all that talent, time, and effort have been used for instead?

[Smalltown Mike]

There are many hip-hops albums from prior to those lawsuit that could not be made today, due to the costs to license all the samples involved being prohibitive, like. The Beastie Boys "Paul's Boutique" is an example of one that I've listened to a ton.

So, I 100% agree with the first sentence — I would say probably Public Enemy's Nation of Millions fits that description, too. BUT, while I always believed that part about Beastie Boy's PB, they wrote in the band's biography — Book — that they actually got all their samples cleared on that album (and that people only think they didn't). For what it's worth.

That being said, it's also entirely possible that laws have changed to an extent that it would not be possible today to actually get those samples cleared due to expense, etc.

[Jim of Seattle]

I think there is no good solution to this issue. The only solution will be for people to lighten up a LOT with regard to money and music. And that would require a big cultural shift, which I don't see happening.

I'm not saying there should be NO copyright laws, but there is no such set of laws that could settle all this, ever. Given the technology we live in there's no putting the genie back in the bottle. Sampling and quoting and copying without attribution is just so very easy now, and given modern styles, the line between original and unattributed borrowing is getting grayer and wider all the time. Copyright of music made a lot more sense when there was the assumption of a lot of friction between one performance or one composition and the next. Sampling was not a thing in 1935, and the way music was consumed was such that outright lifting of another's work was way harder. And music styles were more about complete and lengthier musical thoughts anyway, as opposed to the more recent fashion for oft-repeated soundbites of a few seconds. Copyright laws reflected those assumptions. But now they work like a 7.5 mph speed limit on a road built before cars were invented.

One solution might be to create a whole lot of hard and fast and specific rules that will supposedly account for every conceivable future technological scenario. This is impossible of course, and not something anyone should want, because it would just drill an enormous legal rabbit hole in the middle of the earth into which all are in danger of falling. Unless the litigious and profit-driven culture we swim in somehow changed.

The second hypothetical solution might be to go the other way completey, and "legalize music" -- forgive all but the most obvious and egregious copyright infringements. (I.e. you can sue if the Gap uses your song in a TV ad.). I can hear choruses of "What about all of us who MAKE A LIVING out of music? That would be taking away our livelihood!". First off, I very much doubt that it would in almost all cases. Secondly, yep, it sucks but that's how it is. If corn started falling magically from the sky, a life-long corn farmer will complain because now everyone is just scooping up free corn from the ground instead of buying HIS corn. (Sure, his corn is better, but... see other thread, "The MP3 Effect") Yes, not having copyright laws would be really lousy in many situations, but the technology speaks for itself, and it's not going anywhere. (And if something happens and our technology DOES go away, well, music copyright laws will be the least of our problems...) Anyway, all those reasonable people who would stridently object to this solution would certainly carry the day, and so this solution is also essentially impossible. Unless the litigious and profit-driven culture we swim in somehow changed.

So, failing the enacting of laws that cover all the bases, or almost no laws at all, in an environment in which music is instantly, exactly, and very cheaply replicated by anyone - in a time in music where such samples are a common stylistic choice - we are left with something like what we already have. Which is lousy.

Unless the litigious and profit-driven culture we swim in somehow changed. Which it will very probably not in our lifetimes.

BE IT RESOLVED; No solution.