A Note About How Copyright Doesn't Work...
From the original Analog Industries archive. Some links and images from that era no longer resolve.
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.
30 comments
It would be like me having to pay an extra tax on beer every time I procreated as a result of excessive consumption
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I think some soft synths have a license that say you can't use one of their programs verbatim - where you hold one-note and get a full production as library music. Like Stylus or Omnisphere. But combine two of them or layer something else on and you're OK.
But yeah, most plug-in effects don't make any sound of their own, it's just input x FSU = output.
It should be mandatory for everyone making music, with the intent to sell it, to do a course in basic music business law...
Mr. Nakamura & Mr. Matsuoka of Roland would be very, very rich if you had to pay royalties on the output of electronic music machines....
Well, I suspect Mr. Nakamura & Mr. Matsuoka of Roland are very rich, but that's another story.
What I wonder in this whole scenario is why these folks think that they would have to pay royalties? Is there someone out there suggesting to them that they must?
the grey areas start to arise when you think about making sample libraries from instruments:
one the one hand, no one thinks it's a problem to make a fender guitar sample library.
on the other, a lot of people think that making a sample library of the Korg M1 piano would be illegal.
I just think a sample library of the Korg M1 piano would be stupid. But that's only an opinion.
@synthetic: Good fucking luck making that case in court. That's like Stanley suing a carpenter because he had the temerity to use one of their hammers to make a house. That dog don't hunt.
-CR
If someone was making "Best Of Tattoo" or "Best Of Phosphor" sample sets and sold them for $10 less than the actual instruments and didn't offer you a cut, we'd all agree that'd be uncool, right?
By uncool, I don't just mean "hack" (which it certainly would be) but also "a violation of an implied understanding." Right? With respect to trademark name/likeness stuff, right? Not so much "copyright" in the strictest sense of the word.
Or am I off?
My brother's a patent attorney and deals with intellectual property all day long, but I never "talk shop" with him.
- c
Most SAMPLE based soft synths, and all free standing sample libraries, would incorporate a licensing language that prohibits using the sample base sounds to make another sample library for sale, as well as putting your finger down once, flicking it into FillerTracks and calling it a good days work. As for any other legal usage concerns for any other music production tool, there shouldn't be. ...back to my iMaschine ditty, oops hope I'm in the clear on that since I mean to have a major hit with it! Now, how many fingers did I use again?
Yes, but the fact that Tattoo and Phosphor don't work with samples is a little bit aside from what I'm outlining.
I'm talking about trading on the name and the perceived value behind it.
I mean, it's only a matter of time until we see BEST OF TEMPEST sample sets on the market, as wrong-headed and reductionist as that would be. I'm betting a few emerge before Christmas.
The question is whether those sample sets will actually use the name or be coy about it.
I'm betting coy.
- c
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.
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.
@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.
-CR
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!
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.
I guess it has something to do with shit like the Protect IP Act going around.
http://vimeo.com/31100268
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?
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.
-CR
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.
@chaircrusher - I resemble that remark....
Yeah, I guess sample sets are an inherently tricky topic as well. Instead of using a EULA you could copyright the samples themselves then grant a non-exclusive right to let people use them in a derivative work. That might be how it's handled in something like Tempest, since it doesn't require the user to acknowledge anything before using. Though Huggie might know more about that topic.
As far as the Best of Tempest, DSI could clearly sue anyone who used Tempest in the name for trademark infringement, so copyright wouldn't necessarily have to come into that.
At the end of the day, the confusing edge cases like Bloom are what lawyers and case law are for. Brian Eno could claim a copyright on it's output and the only real way to prove it is to get sued by him an lose.
Ain't Gibson try to sue the creators of Rockband with some silly copyright claim ?
I use a bunch of generative music software, and I also use a modular system now that oftentimes seem to have a mind of its own. Should I credit it then? Co-composed by Migthy Modular (BMI)?. Or maybe credit Shawn who helped me focus my module selection? Seriously, to me its all about your own integrity as a composer/producer and what you end up putting out there. If I use a generative approach as the basis for a composition, I input enough rules and restrictions and add enough processing (incl. pitch based) and other elements/parts to make it something I consider a creation of my own, and not that of chance, or others code and algorithms. I am compelled to do this. If I didn't I would feel like an idiot. I was never interested in pure process for the sake of it. And yes, I need to own the copyright-for-life in this resulted work because I will put it out there to help me put food on the table. Also, we can't all be Brian Eno of course who, even if he is sincere, can certainly afford to be very philosophical in areas like this. I remember seeing him speak once in the Sepulveda Pass... I hung on to his every word and he was very interesting indeed, albeit a wee bit smug according to a friend. I guess one can argue that he has earned that right!
Are people really that stupid?
Yeah, I guess they are...
@analogcre8or - It's not illegal to sell samples created by the Tempest, or to say they're from the Tempest. There's no license restrictions, too much hassle for very minimal gain. You're not going to get more than a fraction of the range the instrument is capable of using a sample set, it's just a little taste to wet your appetite. Hopefully a few people who like them will end up buying a unit and it'll all work out in the end
I am curious about Omnisphere's licensing, that's pretty complicated when you get into the details... no 'non-musical' usage, can't distribute 'multitrack' project files since it exposes the spectrasonics file, can't post samples or loops, etc. Seems like it would incredibly difficult to enforce, really just there to prevent people from blatantly stealing the samples I suppose.
Yeah, just ridiculous legal jargon drummed up by some back-alley lawyer trying to earn his keep that most people ignore, and rightly so.
I wish I hadn't tossed all those GigaSampler disks I had. The licenses on the loop sets were some of the most comical things I've seen in this business, and that's saying something. They were basically "if you even go so far as to put this disk in your computer, never mind copying its contents on to your hard drive, you've pretty much given up any hope of making another sound without giving us 50% of your gross earnings." I'm exaggerating for comedic effect, of course, but only slightly. The license really was that restrictive.
-CR
This thread wins the Internet.
While it states a lot I *thought* or *figured* to be true.. it is great to have some seasons vets weighing in to confirm.
Also some details I didn't know before.
Thank you.
*seasoned vets
posting before coffee = fail.
@Pym - This makes sense re. Tempest, and what I have seen from the libraries I have purchased over the years is, yes, the licensing terms getting simplified and more 'realistic', with Omnisphere perhaps being one of the few exceptions. The fact is, with Omisphere, for many (artistically worthless) musical pursuits you can fool (some) people (that you need to fool) into thinking you have created a genius piece of ambient underscore for instance, while your 'work' involved just a gentle index finger push on middle C and some spastic left hand work on the mod wheel, maybe tossing in some Pan and Filter Station. Works in realty teevee all the time, I'm sure. Your whole cue might be just a single 'Omnistem'™. _____ does not like that... and _____ still likes to be credited on the cover of your albums. Enforcing it? I don't think so. I also wonder how many commercially available sample libraries contain disguised raw material from Omnisphere. I'd be surprised if there were none.
Thanks, DGillespie for clarifying the differences between copyrights, patents and trademarks. This definitely seems to be a point of confusion, especially where software is involved.
Not sure how many here would agree, but I find software patents to be a very pernicious idea.
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