A common question from DJs and music producers is: “what right do I have to create and protect my own music using ‘royalty free’ samples, beats, and loops?” Can you copyright work that you derive from these sources? The simple answer is yes, if certain requirements are met. This situation is a textbook example of derivative works and rights (one of the six exclusive rights of copyright). Artists can copyright derivative musical works as long as they had the necessary permission to use the original source material. Let’s break down the issue in detail:
1. The source material must be “royalty free”, or really, “royalties paid”, for you to use them in your own music.
As a refresher, there are typically two parties in music business who own the bundle of rights we call “copyright” and would want a royalty if their music is used. The first are the owners of the musical compositions themselves (the arrangement, lyrics, etc.), typically music publishing companies, who have purchased these rights from the original musicians. The second are the owners of the master recordings, typically the record labels.
Say, for example, you wanted to use a sample from the Rolling Stones song Shattered from their studio album, Some Girls (and who wouldn’t?). You would need to obtain permission from (and pay royalties to): (1) the Rolling Stones’ music publisher, for the music composition, and (2) the Rolling Stones’ record label, for the master rights to the recording. (Quiz: if you recorded your own version of Shattered, you would only need to obtain permission from the Rolling Stones’ music publisher, since the master recording is no longer involved).
Now, in the case of commercially available loops and samples, it’s usually a bit of a misnomer that samples you purchase are royalty free. Rather, the company offering the loops has paid the necessary royalty or royalties that allows them to copy and resell the loops to you. You, as the loop buyer, may then use the loops to create derivative works. Getting beyond use, however, requires some additional steps.
2. In order to protect your new creation, the loop seller’s terms and conditions must grant you the right not only to use and make derivative works, but also to copy the royalty free source material.
You must have permission to copy and prepare derivative works from royalty free source material before you can copyright your new creation. The following is an example of terms and conditions that give you the right to use your loops to create derivative works and copy the material into your own, protectable creation:
The Sounds remain the property of its manufacturer and/or Loopmasters Limited. (Collectively, “Licensor”) and are licensed to you as the original end-user (“Licensee”), for use subject to the provisions below. All rights not expressly granted herein are reserved exclusively by Licensor.
The Sounds in a category of ‘Sample Pack’:
1. The Licensee may use the Sounds in combination with other sounds in music productions (which include soundtracks of such as films, video productions, radio/TV programs or commercials, computer games and multimedia presentations, library music), public performances, and other reasonable musical purposes within musical compositions.
English: You can use the loops in multiple ways, when combined with other music.
2. The Licensee may modify the Sounds and may use the Sounds for commercial purposes as part of a musical composition with other sounds.
English: You can alter the loops and use them in your own musical creations.
3. The Licensee MAY NOT use the Sounds in isolation as sound effects (i.e. a sequence of musical events) or within any competitive products that are sold or relicensed to multiple third parties. In these scenarios, the Licensee must arrange an extension with Loopmasters Limited.
English: You can’t just take our loops, then turn around and use them other than as something of your own. Also, you can’t just turn around and resell our loops again without talking to us first.
4. A right to use the sounds is granted only to the Licensee and is NOT transferable. This license expressly forbids resale, re-licensing or other distribution of the Sounds, either as they exist or any modification thereof. You cannot sell, loan, rent, lease, assign, upload to or download from any server, or transfer all or any of the enclosed sounds to another user, or for use in any competitive product.
English: Only you, not others, can use the loops.
5. Licensor will not be responsible if the sounds does not fit the particular purpose of the Licensee.
English: If you’re not happy with the loops, tough luck.
This is a general licence which covers all Loopmasters products, it may not apply to products from other labels that we represent at Loopmasters.com – if in doubt please email us or contact the label directly.
English: If you’re unsure that you’re using the loops properly, ask before that use.
You can only copyright musical derivative works if you have the necessary license for the royalty free source material.
3. The musical derivative work must be substantially different from the royalty free source material.
Although it’s common sense, a work must be noticeably different from the royalty free source material to be derivative. A purchased music sample is not a derivative work unless you somehow alter, transform, or adapt it. This is usually not a problem for DJs, who may merge multiple samples or layer their own musical ideas over the sample. Even the act of arranging different samples in a unique way is enough. Your editorial idea for the arrangement is the added element making it a new, derivative work.
You can only copyright derivative works if they are substantially different from the royalty free source material.
4. Derivative works do not have copyright over the royalty free source material.
It’s worth noting that creating a derivative work from royalty free samples, drum beats, or loops doesn’t give you copyright to the source material. You don’t become free to do whatever you want with the source material once you create a derivative work. This means that you can’t sell, give away, or publicly play the source material as a stand alone. Your rights to the source material only cover its use in your new creation.
If you have any questions about royalty free music that were not discussed, leave a comment and I’ll respond.
– Ari Good, Esq.
Ari Good, JD LLM, a tax, aviation and entertainment lawyer, is the Shareholder of Good Attorneys At Law, P.A. Ari Mr. Good received his BA, With Distinction, from the University of Michigan in 1993. He graduated from the DePaul University College of Law in 1997 and received his LL.M. in Taxation from the University of Florida. Ari represents DJs, live musicians, fashion models and other entertainers in copyright, licensing and contract matters.
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