November 19, 2011

A Note About How Copyright Doesn't Work...

by Chris Randall

One question I get with fairly alarming regularity in the AD Info box goes something like this: "I bought $PLUG_IN from you, and I'm going to use it to make samples to sell. Is there some sort of royalty I need to pay?"

I had a fellow a month or so ago that downloaded our three free plug-ins, then wrote me a lengthy request for freedom from indemnity should he actually use them.

If I only got this question and its variants once or twice, I'd just chalk it up to "kids today." But it comes pretty frequently, enough to be a little alarming. And enough to actually warrant me saying this out loud: There is NO SCENARIO in which you need to pay royalties to an instrument or effects maker for the use of a product you purchased, or which the maker gave you, in no legal system in any country.

I will grant that copyright is a somewhat confusing subject, made all the more so by the addition of things like Creative Commons, which only serve to complicate it. (I would wager that 1 in 100 that use Creative Commons licenses actually understand what they're doing.) Audio Damage can patent a sound-generation method, and exploit that patent, but we can not copyright the resulting sounds. There is no mechanism by which this can occur.

Things get a little odd when it comes to sample collections. The onus is on the creator of the sample set to make it clear to the customer the nature of the license he purchased. In the early days of sample CDs, I bought one that was made by George Clinton, and the obligatory license was roughly the same as the hoops you'd have to go through and what you'd have to pay to use a snip of an actual P-Funk song. And many of the sample sets for GigaStudio in the early days of that program had licensing that was so ridiculous you essentially couldn't use the products without a legal team on standby, and a checkbook at hand.

But that's a different thing entirely. We're talking about plug-ins. To the best of my knowledge (which, in this case, is fairly extensive) it is impossible to copyright the output of an instrument, or a sound that has been altered by an effect, if you purchased a product expressly for that purpose, sold as such. While it'd be nice to get a couple cents every time a song was played with Dubstation on it, the simple fact of the matter is that ain't how things work.


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Nov.19.2011 @ 6:22 PM
Give the lawyers enough time, and they'll figure out a way copyright or trademark this sort of output. Apple's legal team is probably on it as we speak.

Nov.19.2011 @ 6:40 PM
I bet the confusion comes from the difference between copyright, patent, and trademark. I'll only speak to the situation in the US, because that's the only one I know anything about.

Copyright refers to your right to decide how copies of your artistic work are made and distributed. It applies to writings, musical scores, and visual art, like images and sculpture. It does not apply to sounds, machines, technology, algorithms, or ideas. My understanding is that it also doesn't apply to designs. You can copyright code, but it's the actual code that's copyrighted, not the algorithm or idea. The only way to give up your copyright over a piece or work is to explicitly sign it away, or wait 100 (or so) years.

Patents protect the inventors of machines (and algorithms, and "business practices") from having their ideas stolen before they have the opportunity to profit from them. For this reason, the scope is broader (as broad as the PO will let you get away with) but the duration is shorter (something like 20 years), you also have to prove that it's a novel idea that is non-obvious, but that part is broken.

Trademark protects the design of any object or trade dress, including names, from counterfeit or mimicry. You can trademark any of this stuff by putting a TM on it wherever it's displayed or reproduced, or by registering it with the US patent and trademark office. However, even if you trademark a symbol or design, if you don't defend it, you can lose it. For instance, Fender lost a big trademark case on the design of the strat a couple years ago because they hadn't registered it earlier, or sued people who made strat copies.

My understanding is that none of those things cover the piano sounds in the M1 or the presets in Omnisphere. That doesn't, however, keep Spectrasonics putting a clause in the EULA that you can't just use the preset and say it's your song, or that you can't sample the plug-in and resell the sample set (it probably does say this second one). But this is handled separately as a contract manager because it's not covered by any of those separate IP laws.

Nov.19.2011 @ 6:58 PM
Chris Randall
@Chad: If poor taste and bad judgement were illegal, the only person not in jail would be that dude from the Dos Equis commercials.

Otherwise, I'm with DGillespie. Pretty much spot on.


Nov.19.2011 @ 8:16 PM
Tempest actually does work with samples, in the form of a boatload of samples ?2007 by FXpansion, so Tempest is in part a sample based synthesizer. Yet there is no license agreement in the manual restricting the usage of the samples in it. My bet is also coy, at least for the time being, but then again, while using sounds made with Tempest in a sample library might be legal, selling such samples using the name Tempest might infringe on trademark or other laws, depending. You can have all kinds of arguments as to what's cool and uncool I guess, depending on the circumstances, but to put out a wholesale preset rip-off of a brand new instrument as a sample library, if that's what you mean, and using the name of the instrument to sell it, is very uncool and most likely and infringement of some kind. On the other hand, if you do something really creative and new with Tempest as your tool, maybe further processed in some way, and you want to sell that as sample sets using no reference to Tempest in your marketing material, that's a different thing altogether, no? All this talk about Tempest makes me want one even more, and not for creating sample sets, that's for sure!

Nov.20.2011 @ 1:35 AM
The indemnity thing may have its origins in weird big corporate purchasing rules.

At my last big corporate gig, there was a piece of high end A/V software that my team needed, but couldn't buy. Legal wanted some weird terms in the contract because the purchase price was above some threshold, and the vendor was unwilling to agree to those terms. The demo version could be used a few dozen times before locking you out, and we didn't use it all that much (maybe once every other month) so I never got around to working things out with legal before I left. I am fairly confident that I could have coaxed our legal department into relaxing their rules based on a pretty obvious business justification. My predecessor didn't even try.

My guess is that your customer was trying to comply with some weird purchasing rules, or had done so in the past and thought that kind of thing was perfectly normal. Corporations confuse the hell out of people. The bigger and older they are, the more likely people are willing to do crazy nonsensical shit for them.

Nov.20.2011 @ 4:27 AM
I guess it has something to do with shit like the Protect IP Act going around.

link []

Nov.20.2011 @ 5:01 AM
Do you think copyright might change? I was just thinking about Brian Eno's line that his approach to composition is more akin to the role of gardener than an architect through his generative processes.

I had an interesting experience a while back when I came into conflict with some people for recording a large-scale aeolian harp without their permission. Following the copyright model, the wind is the composer but it seems fair that the artist who built the device should receive some credit, no?

Nov.20.2011 @ 9:16 AM
Chris Randall
When you start talking about devices that generate melodic music, you get in to a legal morass from which there is no escape.

Axon is a good example. I mean, the customer has a fair amount of control, but ultimately, it is going to sound like Adam designed it to sound, and play music I designed it to play. I can hear it a mile away. I've caught it on a few commercial productions now, because its rhythms and melodies are so idiosyncratic.

Obviously, AD is not going to claim any copyright on Axon's results, but we could make the argument, if Eno can make the argument that Bloom's output is copyrighted.


Nov.20.2011 @ 11:51 AM
I think this is an inherently confusing topic, and most people go through life with only the vaguest knowledge of how it all works, and most of what they know ain't so.

I can't get too mad about ignorance because it's curable. Though I'm not the person who gets all the emails from the ignorant and has to waste time setting them right.

Of course there is the fact that musical talent and intelligence are independent variables. So you might be hearing from actual professional musicians who are dumb as a sack of hammers.

Or drummers.

Nov.20.2011 @ 12:08 PM
@chaircrusher - I resemble that remark....

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