Legality of sampling for fun
October 18, 2011 11:40 AM   Subscribe

Theoretically: If a musician doesn't make any money/ask for any money (no merch, no money for playing shows, no cds pressed) can they sample anything (from music and movies) they want for use in their works?
posted by drezdn to Media & Arts (17 answers total)
 
No.
posted by Jairus at 11:42 AM on October 18, 2011 [2 favorites]


When you say "no money for playing shows," does that mean they only play private gigs, or that they go on stage in actual venues that profit off the show?
posted by griphus at 11:45 AM on October 18, 2011


In a legal sense, you have the right to make use of other works as long as it qualifies under parody, education, commentary, and other categories that fall under 'fair use'. Whether you earn any money on it or not doesn't really enter into the equation.

For stuff that's licensed under creative commons, it does make a difference whether it's for a commercial purpose or not, depending on the license the original work was offered under.

In a practical sense, however, if you aren't making any money from it, you're a lot less likely to get sued over it. The worst you'll get, usually, is a letter from a laywer asking you to knock it off.
posted by empath at 11:46 AM on October 18, 2011 [2 favorites]


No, because you're still using someone else's work without permission. If it's educational in nature, or a parody, or commentary, and doesn't use the entirety of the work, then it might be okay. In the U.S. there are a lot of grey areas in copyright law.

You ask permission, and they may or may not charge - that's up to them.
posted by rtha at 11:47 AM on October 18, 2011


No. Profit-making is one condition for evaluating fair-use, but it is nowhere near being the hall pass your question implies. Plus, "performance rights" and "recording rights" are handled separately in the music industry as well, so if a musician gets permission to record a song, they may not have the right to perform it in public, regardless of payment involved.
posted by AzraelBrown at 11:48 AM on October 18, 2011


Response by poster: This theoretical situation would be something like playing very small clubs and posting to places like music.metafilter. How do people like The Kleptones avoid legal trouble?
posted by drezdn at 12:01 PM on October 18, 2011


How do people like The Kleptones avoid legal trouble?

The Kleptones admit they have no right to use others' material. So far, looks like they've just been lucky in that no one has bothered to sue them yet. MeFi's own waxpancake got a cease and desist letter for hosting the material.
posted by grouse at 12:09 PM on October 18, 2011


You need to understand the difference between "not legally allowed" and "not likely to get sued."

This is not legal, but it's unlikely to draw significant action, because it's just not worth it. And the first step (and likely the only step) in any action would be a cease-and-desist order, which is easy to comply with on a case-by-case basis.

Moreover, the Kleptones guy is British, which likely makes for an interesting overseas legal hassle for the parties involved.

Now, there's another shade to this, and that's performance licensing, in the case of a DJ at a nightclub. The DJ can mash up an existing recording all he wants, provided an ASCAP/BMI license is in place (usually handled by the club itself) to allow for the live performance in the first place.
posted by Cool Papa Bell at 12:11 PM on October 18, 2011


Now, there's another shade to this, and that's performance licensing, in the case of a DJ at a nightclub. The DJ can mash up an existing recording all he wants, provided an ASCAP/BMI license is in place (usually handled by the club itself) to allow for the live performance in the first place.

The DJ can mash up an existing recording all he wants in that venue, as part of his performance. But he can't post that mix online and distribute it.
posted by Jairus at 12:12 PM on October 18, 2011


I think it would be pretty difficult to actually be sued and lose, depending on how good your lawyer was. Gregg Gillis, the man behind the sampling band Girl Talk, makes money off his work, which has significant sampling from copyrighted work. So far, nobody has sued him. His record label is even named 'Illegal Art."

http://paidcontent.org/article/419-why-the-music-industry-isnt-suing-mashup-star-girl-talk/
posted by ajackson at 12:20 PM on October 18, 2011 [3 favorites]


I've got a bunch of DJ mixes on my soundcloud page, which i don't post tracklistings for because I don't want them to be googleable by record companies with too much spare time.

I've had friends get C&D orders to have their dj mixes taken down, but it seems like record companies have pretty much given up on enforcing that these days.

I think generally, you are okay as long as you are significantly transforming the work, but you should be aware that some artists (Prince, for example) are a lot more likely to send take-down notices than others.
posted by empath at 12:24 PM on October 18, 2011


But he can't post that mix online and distribute it.

Legally, sure, but that horse is well out of the barn at this point. There are approximately 80 zillion mix cds online right now and very, very, very, very few of them paid a license to anyone.
posted by empath at 12:29 PM on October 18, 2011


Legally, sure, but that horse is well out of the barn at this point.

Oh for sure -- you don't need to tell me that. I make sample-based music, and I post DJ mixes. But the question isn't "should I do this", it's about the legality of doing it. And it's totally not legal.
posted by Jairus at 1:11 PM on October 18, 2011


If a musician doesn't make any money/ask for any money (no merch, no money for playing shows, no cds pressed) can they sample anything (from music and movies) they want for use in their works?

There are so many things that need to be defined here that it hurts my head.

First off...define "musician". Is this a guy playing his sax in the bedroom, or is this the guy playing a violin for free...at a restaurant for customers? Context matters in terms of commercial stuff. You gotta look beyond the "not getting money" to make sure its purely non-commercial.

Now...that wouldn't necessarily make it ethical...but it COULD prevent you from being busted for benefiting from other people's work.

Also..."their works". Now are you saying that you would claim some type of ownership to this? You are saying that you will be using other people's work...and you are also saying that you will lay a ownership claim to it?

Not cool, zeus.
posted by hal_c_on at 1:25 PM on October 18, 2011


The DJ can mash up an existing recording all he wants in that venue, as part of his performance.

Yes, exactly. Moreover, he can make that mash-up at home, bring it to the venue and play it there.
posted by Cool Papa Bell at 3:54 PM on October 18, 2011


Samplers say it's legal, record labels say it isn't. Until there's a case, no one knows. That's how our crazy legal system works!
posted by miyabo at 6:52 PM on October 18, 2011


There have been plenty of legal cases. It's pretty much illegal.
posted by chrchr at 7:52 PM on October 18, 2011 [1 favorite]


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