Can I use the "thud" sound from "Lost"?

September 23, 2005 1:23 PM

Can sound effects be trademarked?

Easy example: the gavel clunk from "Law & Order." Or, perhaps, the sound of light sabers in "Star Wars." In many of these cases, the techniques used to create the sound are well known, and easily reproducible. So can they be trademarked, or subject to copyright, or basically protected to prevent, say, using the "Law & Order" gavel clunk in your indie movie's courtroom scene? Is it's familiarity a factor, and perhaps a gray area (since you may be venturing toward "parody")?

I'm putting together a fan podcast for "Lost," and am really only looking to use the show's signature signoff "thud" sound. It sounds very much to me like a basic bang, slowed down and with bass amplified for added oomph. Is this kosher?

Does it just fall into the fuzzy area that all fan sites and other fan products do when it comes to reproducing various media - i.e. go ahead and do it unless they tell you not to?

posted by pzarquon to media & arts (14 comments total)

Some background material
posted by sad_otter at 1:28 PM on September 23, 2005

Dr. Dre apparently wanted to use the THX "Deep Note" signature sound as the opener to his album "Dr. Dre: 2001." After being refused by Lucasarts, the sound ended up on his record anyway. Voila, lawsuit. Dre claimed that he had, after being rejected, recreated the sound himself from scratch in the studio. True or no, I can't find what eventually happened with the suit, but less-than-sure sources say that it was settled.

In conclusion, to be on the safe side try to get permission to use any "signature" noises in commercial products.

Or throw some satire in there, what with fair use and all.
posted by plexiwatt at 1:31 PM on September 23, 2005

Fair use doesn't necessarily require satire.

Fair use FAQ. You should be able to use a clip for the purpose of commentary (the canonical example given is a book review).

I assume you're in the USA. Laws vary by country, YMMV, etc.
posted by GuyZero at 1:36 PM on September 23, 2005

I'm pretty sure the "opening" sounds on both Windows and Macintoshes are copyrighted, if not trademarked.
posted by Thorzdad at 1:47 PM on September 23, 2005

Harley Davidson has trademarked the sound of their bikes, and they have sued people for recording the sound for use in songs without their permission. Mention of this is frequently made by Steven St. Croix in Mix magazine.
posted by ZenMasterThis at 1:55 PM on September 23, 2005

Harley Davidson's Roar Trademark
posted by ericb at 1:56 PM on September 23, 2005

Brian Eno created "the Microsoft Startup Sound."
posted by ericb at 1:57 PM on September 23, 2005

Eno on the Microsoft Sound.
posted by ericb at 1:58 PM on September 23, 2005

THX "Deep Note" made by Dr. James 'Andy' Moorer.
posted by ericb at 2:02 PM on September 23, 2005

IANAL, but I doubt fair use applies. I'd be willing to bet that if you use their sound (or an approximation thereof), the "Lost" people would object on the grounds that it would lead people to believe that your project was associated / funded / condoned by the creators.
posted by grateful at 2:03 PM on September 23, 2005

The original question (but not the Harley issue) sounds to me like one of copyright, not of trademark. Being their artistic creation, the sound is copyrighted, so you don't have any automatic rights to use it, just like you couldn't use show dialogue. You could probably come up with a fair use defense to use the "thud" in something about Lost if you were talking about the "thud". If you are using it because you want your podcast to sound the same as the show, and that's the only reason, a fair use defense would be a stretch.

In either case, at this scale you are more concerned about whether they will ever find out than whether they will prevail in court. If you think they will find out, the time and money involved in defending yourself even if there is a valid fair use defense would make it not worth the trouble. If you don't think they will ever find out then whether or not a fair use defense would succeed is irrelevant.
posted by mendel at 2:03 PM on September 23, 2005

A little Google work indicates that this sort of thing is referred to as a "sound mark" (and of course Wikipedia has an article about them). The best known one I can think of is the "Intel Inside" four-note thing... "dah-ding-dah-DING!" See the article for more explanation of the legalities than I can give.
posted by letourneau at 3:09 PM on September 23, 2005

have they actually trademarked it? ... if not, and you can produce the sound with your resources, i'd say go ahead ... you might want to consider making it slightly different, just in case ...

we'd all better hope that hustler magazine doesn't trademark heavy breathing ...
posted by pyramid termite at 5:47 PM on September 23, 2005

Thanks, all. There are other "Lost" podcasts out there using music, dialogue, and other huge swaths of the show, so I think I'll let them be the guinea pigs. Me, I'll just stick with the sound of my wife's voice and mine (and some cheesy stuff I put together in GarageBand).
posted by pzarquon at 1:24 AM on September 26, 2005