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musicfan
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Derivative works - confusing question
« on: Jun 8th, 2007, 1:19pm »
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So, I understand that sampling another's musical work in a new work thus creates a derivative work.... yes?  I did come across a case where the new work was "not substantially enough" like the original work -- so it was then NOT a derivative work?  What would this then be considered?  
 
I know what I wrote there is confusing- long story short - does sampling another's musical work (in a recording) ALWAYS create a derivative work?  Or, are there exceptions?  And, if there are exceptions, what are these new works termed, if they are not really "derivative works"?  
 
I very much appreciate any responses or insights.  I can look up that case I did find, if anyone likes.
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Fred
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Re: Derivative works - confusing question
« Reply #1 on: Jun 8th, 2007, 3:59pm »
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Sampling might not result in a derivative work if the new work isn't "derivative"-- but that doesn't mean that the sampling automatically is not copyright infringement.  
 
An example: imagine sampling the stamp-stamp-clap rhythm from "We Will Rock You" by Queen, and putting a completely different melody with it.   The new song wouldn't be a derivative of the Queen song simply by virtue of using the same rhythm, but the copyright in the particular sound sampled from the Queen recording would belong to the band.  (Of course in this example, one could easily get around that problem by re-recording the "stamp-stamp-clap":  the beat in question is a standard one in Middle Eastern traditional music.)
 
Does that make sense?
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musicfan
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Re: Derivative works - confusing question
« Reply #2 on: Jun 13th, 2007, 10:07am »
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Thank you very much for your reply - I appreciate the example.  That absolutely makes sense.  And the example is great.
 
Just to play devil's advocate (and to be sure I completely understand), I have two questions:
 
- If I were to "re-play" on my guitar rather than sample an Aerosmith riff and use it in my song (that I plan to record and sell), I would not need to get permission from anyone?  Or, just the owner of the musical compositon? I just wanted to bring up a melodic example.  I completely understand the rhythm example.
 
- And, my other question: If I actually SAMPLE Aerosmith's recording, but my song is not ANYTHING like the original (I use software to alter the sample to another key, slow it down, etc. - to the point where it is not recognizable), is it then considered a derivative work?  
 
- On that note, for a work containing a sample to be considered an actual "derivative work", does the new work have to be BASED on the sample and "sound" like the original work?  Or, does any song that contains a sample that has not been altered (ex. a 4-second recognizable Aerosmith riff that is quoted once) also constitute a derivative work?
 
THANK YOU again in advance.  Again, any insights are greatly appreciated.  I'm a teacher of a music business class and copyright is a small part of the class, but the majority of questions I get are about sampling!  Trying to stay updated.  Any books you folks recommend for getting up-to-speed on sampling, specifically?  I found the Music Plagiarism Project online which has been great.
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Fred
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Re: Derivative works - confusing question
« Reply #3 on: Jun 13th, 2007, 8:00pm »
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You are correct about your example of a sampled Aerosmith riff.  If you play the song and make a "sample" of your own playing, you need permission from whoever owns the performance rights to the song.  If you sample the recording, you need permission from both whoever owns the rights to the recording as well as whoever owns the performance right to the song.  If you turn around and create a derivative work based on the original song, permission for that is separate from the right to perform it. The need to get separate permissions might be one of the reasons that Weird Al never uses samples of the original songs in his parodies.  (Because they are parodies, he doesn't need permission to create them, but my understanding is that he always gets permission anyway.)  He hires his own musicians, sometimes the same session musicians who were hired for the original recording, and if he needs a "sample" he makes it from scratch.
 
As a side point, maybe the college where you teach is connected with a law school; perhaps there is a law professor who would help you out with your course materials.  (I'd hate to think there are music students out there relying on me, heck, for all you know I'm a ****er spaniel with good typing skills.)  Or perhaps some local IP lawyer would like to give a guest lecture as a way of building community awareness of his or her practice and maybe get some business that way.  But I digress.
 
The copyright act defines a derivative work as follows:  
 
A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”.
 
Weird Al's parodies are derivative works.  "Touch and Go" by Emerson, Lake, and Palmer is a derivative work (of the 17th cent English folk song. "Lovely Joan").   The issue for the sample artist is to figure out who owns what.  Say you sample the riff in "Touch and Go" that follows the line ". . . pedal to the metal, blow by blow, when you're running with the devil it's touch and go."  (In my opinion that part is closest to the original folk song, but YMMV.)  You would need permission from the band and as well as the owner of the song itself.  But ELP does not own the folk melody.  So if you were to take that underlying melody and transform it into something else, ELP would have little to say about because it isn't their melody, it is in the public domain.  Just as Warner Brothers can't prevent you from making your own version of the Anvil Chorus just because Bugs Bunny performs it in one of their cartoons.  (Another derivative work . . .)
 
I recently heard a song, that I'm not hip enough to identify, that used the dah-dah-dah-da-da-DAH-dah line from the beginning of "Under Pressure" by the Police.  Even though it is a relatively small part of the original song, I think the new song is definitely a "derivative work," and I'd be very surprised if I were told that the creator of the new work did not get permission.
 
Your question about taking a sample of something and altering it is a more difficult question.  On the one hand, the rightsholder can argue that it is a copy, no matter how transformed.  And no matter how tiny a piece you take of something, it is still a copy.  (Fair use is a defense to copyright, not an exception.)  Taking only a few words from a book without permission potentially is copyright infringement.  If I were to, say, convert the series of numbers representing the colors of each pixel of a electronic picture of Mickey Mouse into a musical score and play it, it would be a derivative of the original Mickey Mouse picture in a sense.    On the other hand, if the sample has been transformed to the point of being totally unrecognizable, one might argue that it can't be a "copy" of something.  The folks who do collages have many of the same problems.
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Isaac
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Re: Derivative works - confusing question
« Reply #4 on: Jun 14th, 2007, 8:55am »
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on Jun 13th, 2007, 8:00pm, Fred wrote:
The need to get separate permissions might be one of the reasons that Weird Al never uses samples of the original songs in his parodies.  (Because they are parodies, he doesn't need permission to create them, but my understanding is that he always gets permission anyway.)

 
Defending parodies as non infringement rely on fair use.  Wierd Al's stuff isn't all parody.  Some of it is actually satire in which Al's work is commentary on some subject other than the orignal song.   For example "Like a surgeon" is probably a parody critique of Madonna and her song, while "I lost on Jeopardy" probably picks more fun at the game show than at the original song or Kihn.
 
The difference can be important to a fair use defense.   The Supreme Court seems to think it's easier to justify large amounts copying in a parody case than in a satire case.  See Acuff-Rose.   They also don't believe that all parodies are fair use.
 
Quote:
He hires his own musicians, sometimes the same session musicians who were hired for the original recording, and if he needs a "sample" he makes it from scratch.
 
 
I believe that hiring your own musicians rather than sampling allows you to use a mechanical license.
 
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Isaac
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