Does copyright law cover samples used in industrial sound design?
January 24, 2013 11:37 PM   Subscribe

To what degree does copyright law cover the sounds objects make, when those sounds are actually samples? I know copyright law covers sampling in media; if I sample a song or other media, I need to check that my use of the sample aligns with various licenses. As far as I know, it doesn't cover the sounds of most other (non-media) objects: if I record the chiming sound a mechanical clock makes, as far as I know I don't need to ask anyone's permission. But what happens if my clock doesn't chime mechanically, but instead plays a sample of a chime? It's playing sound media; if I want to record it do I need to ask anyone's permission?

I'm doing a radio project on sonic skeuomorphs: sounds which objects don't really need to make but which they do because earlier iterations of the object made them. For example, the new streetcars in my city play a bell sound, just like the old ones do. But the new ones play a sample, where the old ones just rang a metal bell. It makes good sense for new trams to sound like the old ones, for safety reasons, but theoretically it could play anything. I'm interested in sounds like this, and have started recording them. A user on Freesound pointed out that they might be covered by copyright law, which I honestly hadn't considered.
posted by Michael Pulsford to Law & Government (10 answers total) 11 users marked this as a favorite
A) This is a really great idea for a project, and I'm looking forward to hearing the results.

B) All recordings are copyrighted, but if 'fair use' is to have any meaning at all, I'm fairly sure that your usage of it would fall under fair use. An actual lawyer can give you a better answer.
posted by empath at 12:02 AM on January 25, 2013 [2 favorites]

The chances of you getting in any kind of trouble for this are vanishingly small. I'd just do it, it sounds like a fascinating project.
posted by Ted Maul at 1:25 AM on January 25, 2013 [1 favorite]

Slightly related: when Japanese motorycle makers tried to duplicate Harley-Davidson's potato-potato-potato sound, HD tried to trademark the sound but eventually failed. It took 6 years though.
posted by elgilito at 1:50 AM on January 25, 2013 [2 favorites]

Best answer: Copyright pertains to "original works of authorship fixed in any tangible medium of expression". 17 U.S.C. 102. So your intuition that sounds produced by the actual operation of objects are not copyrighted seems correct. Because those sounds are not "fixed" in a "tangible medium of expression," they are not within the scope of copyright law.

Which makes your intuition that an audio file used to make sound in place of a mechanical chime would be subject to copyright also correct. That's "fixed" in a "tangible medium," and deliberately produced sound effects constitute "works of authorship." So yes, those are probably subject to copyright.

That being said, the odds that anyone is going to care about this is minimal. The fact that something is theoretically protected by copyright doesn't necessarily mean that it's worth anyone's while to enforce those protections. But know that there are reasons beyond just money that people decide to enforce copyrights. Copyright can also be used to control the usage of copyrighted material to prevent associations with things the copyright holder doesn't like or would simply rather not deal with. It's not just about the money.*

All of that being said, what you're describing seems like it might be a good argument for "fair use," which is effectively a compulsory license imposed by statute (17 U.S.C. 107) for certain kinds of use. But there are enough facts going on here that it's probably worth running this by a lawyer who does copyright practice and is licensed in your jurisdiction. Ideally, you're associated with an organization that needs these kinds of services and can run something like this by him without any cost to you. If not, I'd say you can probably find someone to write you a quick opinion for a few hundred bucks. I can make a recommendation, if you're interested.

*Relatedly, this is why major corporations tend to appear so aggressive about protecting their IP, both copyright and trademark. Failure to do so in minor cases can be used against them in major cases. So if they don't at least send a nastygram whenever they find a potential violation, they could find themselves in trouble later. The more responsible corporations are content to send a letter saying "Look, we think you're using our stuff. Be careful, or we could sue you." But there are plenty out there that adopt a zero tolerance approach. It's a real crap shoot.
posted by valkyryn at 4:10 AM on January 25, 2013 [6 favorites]

I agree- this sounds like fair use. Just like using a sample of a song in a bona fide review. The law pretty clearly states that such use is fine. But as valkyryn says, to be absolutely certain, you'd need to contact a lawyer.

Where it wouldn't be fair use, for example, would be if you were manufacturing a cell phone and included all the other manufacturers' copyrighted ringtones, even if the ringtone was just a recording of a bell. Because it is their recording and they didn't give permission, and you are using it for the same thing they are.
posted by gjc at 5:54 AM on January 25, 2013 [1 favorite]

To echo others, if your project is commenting on the use of these skeumorphs - using them as examples that illustrate your points - that is almost certainly fair use. If you were putting the chimes in your own clock, or using them as a cellphone ringtone (as gjc suggests), that would be different - that's not a transformative use. But you're allowed to use copyrighted material for the purpose of comment or critique.
posted by Ms. Toad at 5:59 AM on January 25, 2013 [2 favorites]

Whenever I've talked about fair use with a lawyer friend, he's made it clear that in his humble opinion, non-lawyers have very little idea of how fair use actually works. I'm confident enough to say yes, they are copyrighted, but not confident enough to say you're covered by fair use exemptions.
posted by jjwiseman at 8:47 AM on January 25, 2013 [1 favorite]

If you want to do some of your own reading/research on fair use, the Center for Social Media has a host of great, accessible documents. While none pertain specifically to radio, they do cover other related forms (documentary, journalism). This report in particular may be useful to you.

I'm not a lawyer, but I do study these issues and regularly make use of fair use, and feel pretty confident in the interpretations above. However, of course, just because you claim fair use doesn't mean you can't be sued or get a cease-and-desist notice. In your case, however, I think that's highly unlikely, but for radio broadcast you'd likely want to run your work by the station's (or network's) program director/legal representation. But, in general, consider all the copyrighted sounds used in any NPR reporting (assuming you're U.S.) - they're not getting permission for each of those sounds; it's covered under journalistic doctrines of fair use.
posted by Ms. Toad at 9:08 AM on January 25, 2013 [1 favorite]

non-lawyers have very little idea of how fair use actually works

As a lawyer myself, I can say that this is usually true. There are, of course, exceptions, but most people think that fair use is a lot broader than it actually is. Specifically, the mere fact that one is not generating revenue from alleged infringement is not anywhere near enough to constitute fair use under the statute.

posted by valkyryn at 1:48 PM on January 25, 2013 [2 favorites]

Response by poster: Hey all,

Thanks so much for taking the time to answer!

If I'm reading right the upshot is:

1. Yes, they're subject to copyright, but
2. It's likely to be fair use
2a. (though one's intuitive sense of fair use is a poor guide to whether it is or not)
3. No-one's likely to care
3a. (though there's a chance someone could crack down on me just to prevent a precedent being set)
4. I should go ahead and do it
4a. (though if I want to feel safe I really should talk to a proper lawyer)

It's interesting either way, for my purposes. The notion that our urban soundscape might gradually be replaced with an identical-sounding copy which is also a legal minefield of digitally-played samples is counterintuitive, and worth thinking about.
posted by Michael Pulsford at 12:05 AM on January 26, 2013 [3 favorites]

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