I just finished a song using clips from the 80’s TV show Thundercats. Do you think this is covered by fair use? Is anyone else using copyrighted samples (TV/movie or musical)?
I am not an atomic playboy!
I wouldn’t worry about it unless you’re expecting the track to sell thousands of copies.
No, it’s not fair use. But, legally, you are about in the same area as pissing behind a dumpster behind a club. Can anyone see you? Do the people that could possibly see you care beyond saying ‘ewww’ or ‘haha!’? If they care, will they complain to someone about it? In your position, most likely people to see you and care are the club owners (soundcloud). So…
Unless… are you are setting up and advertising a pissing behind the dumpster peepshow and attempting to charge admission? Oh, you didn’t put it on beatport, ok. Well…
What spacecult and esp81 said. I use any samples I want because I know I’m never going to sell my music. As long as Soundcloud doesn’t autodetect anything there’s no fuss.
From a moral standpoint, as long as what you’ve created is an expression of your own ideas and creativity, don’t feel restricted in what you use to make it. If your song accomplishes something that the original sample(s) didn’t, it’s original in that way.
Not making the content downloadable usually also works in your advantage. I believe this is not done automatically on Soundcloud. (Which means if you enable it:you have purposely allowed distributing the content)
So the group opinion is, it is baisically a violation of copyright, but as long as the violation is small it will not impact the copyright holder. Just for curiousity, at what point would folks consider the use of copyrighted material as fair use? I am sure the laws are different in different countries and the law is vague in the US, however here are the guidlines from this law site http://fairuse.stanford.edu/overview/fair-use/four-factors/
The four factors judges consider are:
the purpose and character of your use
the nature of the copyrighted work
the amount and substantiality of the portion taken, and
the effect of the use upon the potential market.
I guess I was thinking that digital music could fall under the purpose and character of use being different than the original TV show. However, if I was sampling other music then the purpose and character would not change and I probably wouldn’t have Fair Use protection. I know that mashup artists like Girl Talk are likely not Fair Use, but the record companies are not suing - perhaps due to PR, perhaps because they treat indie mash ups as a form of internet advertising, but perhaps because if they lose and mash-ups of existing music are considered transformative and thus fair use, then they lose revenue from folks willing to pay for sampling royalties.
All sampling is illegal. You need to get permission for any sampling. The end.
There’s no “fair use” in your case, most especially if you are based in the USA.
But, no one cares until you are a big enough target to sue.
Girl talk is taking a risk. He is doing it on purpose. It’s the same as a graffiti artist who throws up walls in public spaces. Some get beaten up by security guards. Others become Banksy.
It’s all about hustle.
The frustrating thing about sampling is this: sometimes you just have an idea, right out of the blue, and it seems like the most awesome thing you’ve thought of in a while. Sometimes that idea involves “taking liberties” with someone else’s work. Sure, you can sit down and bang out this awesome remix/mashup/reworking/beatstrumental, but then how do you share it with other people who would also think it’s awesome without getting pinched?
Always respect the original artist /publisher by giving them credits in the first place. “Samples used on courtesy of [original artis/original publisher]”.
You always have the risk of a publisher suing the hell out of you, but they usually know if you don’t have dope, there is not much to demand so in the majority of cases you or the web-content provider gets a DCMA take down notice in a worst case scenario (which is where they still may sue you when you do comply but this may also depend on if you had offended the publisher/author before in similar or the same manner).