Okay to use non-musical samples in music?
April 21, 2006 3:04 PM   Subscribe

Is it okay, legally speaking, to use non-musical audio samples in a musical recording?

I know you're probably not a lawyer, but a general idea would be good to have. For instance, if phrases of speech were recorded from the television, radio, or a movie and used in a song, is that actionable?

Such use of samples is widespread, but is it because there's no legal ground for complaint of such use, or because most of the samplees don't know or care about the samples?

My band's "thing" is making very liberal use of such material. We've always distributed our music for free, but we're submitting to the MeFi compilation album, and it would be good to know that there would be no issues arising because of this.

Specifically, I wish to know if the audio in the KFC radio commercial outtakes available here could be sampled for a music piece without worrying about Colonel Sanders' crack team of lawyers frying our figurative chicken.
posted by Durhey to Law & Government (25 answers total) 1 user marked this as a favorite
Where do you live?
posted by davejay at 3:06 PM on April 21, 2006

(duh, should have checked your profile first. Sorry.)

Okay, in the US, I believe the general rule is that samples can be used if they're less than a certain duration or number of beats, whichever comes first. That's about as general as I can get. :)
posted by davejay at 3:07 PM on April 21, 2006

I stand corrected. From Wikipedia:
The most recent significant copyright case involving sampling held that even sampling three notes could constitute copyright infringement. Bridgeport Music Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005). This case was roundly criticized by many in the music industry, including the RIAA.
Much better, though, check out this page.

That answers your question, I believe.
posted by davejay at 3:10 PM on April 21, 2006

In this case, I believe the issue is with some samples that are strictly non-musical—outtakes from a KFC commercial recording session with Col. Sanders, etc.
posted by cortex at 3:30 PM on April 21, 2006

Response by poster: Precisely, with musical sampling, I understand it's all infringing, since musical recordings are not only copywritten, the music itself is also copywritten. I am concerned specifically about sampling non-musical audio for musical purposes, which is a much less clear legal domain.
posted by Durhey at 3:35 PM on April 21, 2006

The Bloodhound Gang are the first group think of when I think of "non-musical" samples, and for good reason - almost every song of theirs contains a clip from a TV show, movie, commercial or the like. I've followed the band and read their website for years now, and I know of no legal action taken against them for such usage.

That said, I expect the legal ramifications of using these types of samples is heavily dependant on the specifics. a 2-second clip might be more acceptible than a 10-second clip; a clip of someone using a catchphrase might be more objectionable than a clip of the same person just saying any old thing; a reference to a company or organization would likely be more acceptible if it's not defamatory.

I can think of dozens of songs that use small non-musical samples from other sources, and I've never read anything specifically about a group being fined or sued for doing so, but for all I know the artists of every song I'm thinking of got permission in advance.
posted by chudmonkey at 3:39 PM on April 21, 2006

KFC, Yum brands and their ad agency are the copyright holders in that case. Musical or not, you're using their material. You'd need to legally clear that sample the way you would any other unless it's satire.

INAL, but...
- Would what you're doing really come to their attention?
- Would it be detrimental to the brand?
- Are you going to be selling in on unchangable media? Or is it something you can pull when you get the Cease & Desist?
posted by Gucky at 4:24 PM on April 21, 2006

CBS stopped Steinski & Mass Media from using samples of Walter Cronkite reporting the assassination and death of JFK -- an event very much in the public domain, CBS's contention was that because Cronkite was working for them, then his voice during those times he was on the air were their property, to control as they saw fit.

I'd be wary of sampling anybody that has a lawyer on a leash...

[that said, i think it's bogus beyond measure that Cronkite's reportage of a public event is somehow their "property" but I'm sure some legal eagle can explain to me why I'm "wrong"]
posted by I, Credulous at 4:26 PM on April 21, 2006

Response by poster: Generally, we just distribute mp3's via our website, which we could certainly take down if C&D'd. Though our material is presented in a humorous manner, nor it is not disparaging of products, nor does it have the names of products in it.

In this specific instance, it's a piece being considered for the mefi compilation, which may or may not come to the attention of KFC.
posted by Durhey at 4:28 PM on April 21, 2006

As always, the four-factor fair use test is what a judge would use to decide whether it is fair use or not.

Here you are making a noncommercial transformative use of a small part of a copyrighted work which would not affect the market for the original work. The only thing that weighs in against fair use is that the original work was creative, rather than factual. So it might be fair use.

But I doubt this is settled law, and as a practical matter if I were running the compilation I don't think I would allow this work to be included unless permission was obtained. I just wouldn't want to face liability myself or face having to end the community project.
posted by grouse at 4:44 PM on April 21, 2006

I, Credulous, CBS almost certainly has a valid copyright (I am not going to use the misleading term "property" for a copyright) on Cronkite's reportage. The fact that it concerned a factual and public event only shifts the balance towards fair use. But it would have been a difficult and expensive court battle to fight.
posted by grouse at 4:52 PM on April 21, 2006

From my earlier link:
Sampling potentially violates the law regarding two separate copyrights, the copyright of the musical composition (the PA Copyright) and the copyright of the sound recording (SR Copyright). You need to obtain the permission of those copyright holders before using the original song or master. The process of getting that permission is known as clearing the sample.
Since it's not a music sample, the musical composition copyright wouldn't apply, but the sound recording copyright most certainly would, and so the information on that page remains relevant.
posted by davejay at 5:03 PM on April 21, 2006

Wilco was sued by the compiler of the Conet Project for using an extended sample of a non-musical numbers station -- a spy transmission simply recorded off of the radio, involving no original creativity other than pressing record and compling it onto a compact disc. The suit was settled out of court, giving Iridial the majority of royalties for the song the sample appeared in. There is more detail in this Wired News article.
posted by zsazsa at 9:13 PM on April 21, 2006

Best answer: davejay writes "(duh, should have checked your profile first. Sorry.)

"Okay, in the US, I believe the general rule is that samples can be used if they're less than a certain duration or number of beats, whichever comes first. That's about as general as I can get. :)"

Bzzt! Wrong. Sampling--even microsampling--is an infringement of copyright. Unless the sample source clearly states that you can use them (e.g. commercial sample CD's, and even many of those can be limited in use; see the licence), you're breaking the law. There is no limitation on length of the sample whatsoever.

So, on the one hand, you're not likely to get caught. I can think of dozens of electronic tracks that sample from movies etc. While they are infringing the copyright, it's just not worth it for the movie/TV production company to go after them. They'd never recoup their legal costs, let alone damages.

But it's probably not worth taking that risk, especially since doing so would affect MetaFilter directly.
posted by dirtynumbangelboy at 7:09 AM on April 22, 2006

I've been reading up on this sample, as I'm the guy stuck with the ultimate use-it-or-don't decision regarding the compilation.

Interesting history: aside from being available all over the damned internet, the Colonel Sanders Outtakes sample was featured on a 1998 Negativland album, Happy Heroes (amazon writeup). The track is called "Chicken Diction"—you can hear a sample at that link. (And their treatment is, frankly, a lot less listenable than Durhey's.)

Which is not to say that Negativland's use is necessarily any sort of protective precedent—not that I'd know, as IA very definitely NAL—but it is interesting. This is the same band that got all sorts of legal attention from U2 seven years prior (details), and so in a sense they are a very visible test of the liability of a given sample: an established, easy target for anyone wanting to jump on the lawsuit bandwagon.

I'm glad Durhey asked, and I'm glad to have learned what I have from the answers you've all provided. Hasn't made my job any easier, but it has made it more interesting.
posted by cortex at 8:22 AM on April 22, 2006

Well, is the sample being used in a negative fashion? Could it reflect poorly on KFC? If not, it's altogether possible they may licence it.

If not, I really wouldn't take the risk. IANAL, of course, but is it worth opening yourself, and by extension MeFi and #1, to legal strongarming from YUM?
posted by dirtynumbangelboy at 8:26 AM on April 22, 2006

The sample could not, really, ever be used in a positive fashion. It's a reel of Col. Sanders sounding mumbly and befuddled during ad narration taping.

On the other hand, the Mefi Comp Album is not officially tied to #1 or the site—it's a community effort that is essentially independent and coincident to Metafilter proper at this point.

Which doesn't make me any less cautious. Exposing the compilation project to liability is something I very much want to avoid, within reason.
posted by cortex at 8:31 AM on April 22, 2006

A smarmy good lawyer could probably make the argument that the compilation is tied to MeFi. Whether or not it succeded, that argument would cause headaches on top of headaches for everyone concerned.

Seriously, dude... using illegal samples is just a bad idea. Doubly so since there is now a digital trail showing that you knew, unequivocally, that they infringe copyright.

To put the whole copyright debate in simpler terms: everything is automagically copyrighted at creation, unless the creator specifically renounces or limits the terms of the copyright. Using the sample in a piece of music will not, nine times out of ten, come under the heading of 'fair use'.

You're opening yourself up to the possibility of a world of pain if you include it.
posted by dirtynumbangelboy at 12:35 PM on April 22, 2006

Using the sample in a piece of music will not, nine times out of ten, come under the heading of 'fair use'.

As I see it, the real issue is not even whether or not it's fair use—it's whether or not one wants to risk having to even argue it in court, etc.

The short answer is that, yes—if any question remains, don't do it.
posted by cortex at 3:16 PM on April 22, 2006

Bzzt! Wrong. Sampling--even microsampling--is an infringement of copyright.

Actually, that depends on which circuit the court case will be heard in.
posted by grouse at 3:26 PM on April 22, 2006

Not sure how it works, but Future Sound of London sampled part of Aliens in one of their commercial tracks on the "ISDN" album... gave me the shivers watching the film last night and hearing Lt. Gorman saying "Alright - everybody online, looking good." as I didn't realise where it was from.

I'll have a look in the liner notes to see if there is any accreditation to the sample, but I suspect not, and that dirtynumbangelboy has nailed the point...
posted by Chunder at 3:55 AM on April 24, 2006

I'll have a look in the liner notes to see if there is any accreditation to the sample, but I suspect not,

If it's not in the liner notes, that doesn't mean that they didn't pay for a license anyway.
posted by grouse at 6:20 AM on April 24, 2006

Small follow-up: There's no mention of the use of the Aliens sample in the inlay - but there are three or four references to songs and people who've allowed their samples to be used. Strangely inconsistent...
posted by Chunder at 2:58 AM on April 27, 2006

grouse writes "I'll have a look in the liner notes to see if there is any accreditation to the sample, but I suspect not,

"If it's not in the liner notes, that doesn't mean that they didn't pay for a license anyway."

It would be in the copyright information, for obvious reasons. It's possible they just happened to get away with it. I remember reading an interview with Orbital a couple years back; they said that if anyone figured out where half their samples came from they'd (paraphrase) 'get sued so much our great-grandchildren would still be paying it off'.

Sometimes it's more time and money than it's worth to go after someone for doing that.
posted by dirtynumbangelboy at 8:56 PM on April 29, 2006

It would be in the copyright information, for obvious reasons.

Obvious to you, perhaps.
posted by grouse at 8:30 AM on April 30, 2006

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