Category: Derivative Rights

Royalty Free Samples: A Peculiar Problem of Producing Music

Posted by Ari Good, JD LLM on with 1 Comment

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:

Royalty Free
DJ Equipment

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.

PLEASE NOTE:

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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The Six Rights of Copyright – Part III: The Right to Prepare Derivative Works

Posted by Ari Good, JD LLM on

This is the third part in our series on what makes a copyright.  If you’re just jumping in, take a look at the first two parts linked below to get caught up.  To refresh, the six parts of copyright are:

  • The right to reproduce the copyrighted work
  • The right to prepare derivative works based upon the work
  • The right to distribute copies of the work to the public
  • The right to publicly perform the copyrighted work
  • The right to publicly display the copyrighted work
  • (sound recording only) The right to digitally transmit to publicly perform the copyrighted work

To try to get behind the curtain of copyright, we’re individually exploring each of these six rights.  An understanding of each of these rights and how they operate will allow you, the creator, to be in a better position to take advantage of your copyright.

There are a couple words of caution.  First, the practical effect of these exclusive rights will depend on the type of copyrighted work (literary works, musical works, motion pictures, sound recordings, etc.).  Second, these are exclusive rights.  The law allows only the copyright holder to exercise these rights.

III.  The Right to Prepare Derivative Works

A derivative work starts with a pre-existing, copyrighted work.  A different author then recasts, transforms, or adapts it to create something new and original.  The exclusive right to prepare derivative works is also known as the adaptation right.  As an exclusive right, the copyright owner of the pre-existing work alone has authority to prepare derivative works.  Derivative rights also tend to overlap with the reproduction right because you’re reproducing a part of the original in the derivative work.  The derivative right exists primarily to prevent others from stealing your ideas for their gain.  It also works, however, to stop others from changing the meaning of an original work unless they have the author’s permission.

Derivative Rights
Mona Lisa with a Moustache – A Derivative Work

Derivative works come in many shapes and forms.  Mona Lisa with a Moustache is a famous scholarly example, but films from Harry Potter to the Godfather are ripped from the pages of books.  Hip hop is rife with beats, samples, and lyrics taken from earlier songs (although this musical practice has been going on for ages).  Even the popular Ecards with sarcastic messages on Facebook are derivative works.  Adaption may also occur when there is a:

      • Translation
        • Dramatization
  • Fictionalization
  • Editorial revisions
  • Annotations
  • Elaborations
  • Abridgment

Compilations (musical or factual) are NOT derivative works, but can still enjoy copyright protection under a different part of the law.

Copyright protection extends to derivative works, just as it does to the original work.  This protection, however, only covers the new and original material added to a pre-existing work. There must also be a substantial difference between the new and original work.  Creating a derivative work doesn’t give that creator any ownership over the original work.  It also doesn’t enlarge or extend the copyright protection of the original work.  The following is an example to illustrate the point:

Mario Puzzo originally penned The Godfather as a book in 1962 by Mario Puzzo.  The book Godfather has copyright protection.  Francis Ford Coppala and Mr. Puzzo took this pre-existing work, with Mr. Puzzo’s permission, and adapted it into a screenplay.  The screenplay Godfather also has copyright protection as a derivative work, but only for the new and original material.  Mr. Coppala did not gain ownership rights to the book, and Mr. Puzzo did not get added time for his copyright to the book.  The 1972 movie Godfather, in turn, was a derivative work of the pre-existing screenplay with its own copyright protection.  The two Godfather sequels also were derivative works of screenplays (these screenplays also being derivative works of the original Godfather film).

Derivative works are very common to the entertainment industry.  We could create an equally complex scenario as the Godfather example above for many musical works.

As a finale note, people can potentially invade your right to prepare derivative if they’re making Fair Use of your copyrighted work.  In plain English, people can make limited, derivative copies of pre-existing works if it’s legitimately done for educational, commentary, criticism, parody, or other similar reasons.  Technically speaking, Mona Lisa with a Moustache would be a potential example of a parody that is also fair use (if copyright protected the original Mona Lisa).

The world of derivative works is an extraordinarily complex area of law and this article only touches upon its diversity.  Artists file lawsuits everyday claiming copyright infringement and derivative rights are a big part of the reason.  Just ask the label for the Harlem Shake.

What other current and popular work out there can you think that may violate a creator’s derivative right?

–          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.