Legal Issues using movie samples

[ctmartin]

Keep in mind that the written, statutory law does not necessarily jive with the court's latest interpretation / adaptation based on precedent. Following the letter of the law does not guarantee you'll be cool.

-C

[Jeff Schmidt]

"Titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents"

<font size="2" face="Verdana, Arial">This covers print.

There's seperate law on "sound recordings" and it's not as liberal with "Fair Use".

Like sound recordings, movies are copywritten works.

The copyright protects everything including the performance and the recording of the performance.

It's not always about causing harm to the original work - it's about using (stealing) someone else's copywritten works (in whatever form) for your financial benefit without their permission.

Bottom line - It's sampling.

Whether you get a sound from a James Brown LP or a VHS of Citizen Kane makes no difference.

Every good sampler gets permission if they intend on publishing the work. [img]images/icons/cool.gif[/img]

[Freeheel]

Thanks Jeff, you took the words out of my mouth. The easiest rule I've come up with after looking at this for years is that you can't legally sample ANYTHING (for free and w/o permission) that is copyrighted- nothing, nada! All you can do is look at how likely it is that someone is going to sue you...

[MissHiss]

I'd have to say I somewhat disagree. A bit over a year ago I was working on a low budget movie project where a significant portion took place in a room where there was a TV on in the background. It would have been really exhausting to try to create realistic television audio in the background with ads and music, so we simply recorded about 30 minutes of television audio from several different cable networks. For the most part this stuff was low in the background and only an occasional few seconds here or there had audible words. But it was all copyrighted stuff. We called an attorney to determine the legality and were told it probably would fall under the fair use provision. He said at the time that if we were sued the plantiff(s) would have to either prove economic injury or that we were profiting directly from the copyrighted material.

There is, of course, a grey area, and it's actually quite a big grey area. One of the factors will actually be which court decides it, because different courts have interpreted it different ways. What dB is referring to is (I think) sometimes known as the "collage" issue. It's quite a controversy because, in general, there has been an acknowledgement that the basic principle of taking small samples for the creation of an artistic work is legitimate. But it seems to be impossible to define what is appropriate. Technically, you can be sued for sampling one note , but that doesn't mean the court will decide in the plantiffs favor. I do know that in the art world there is outrage that the law isn't more clear on the collage issue, and there is widespread agreement that congress needs to further define the fair use provision.

But beyond that, I know people who use samples all the time without paying royalties and have never been sued. Their work usually is restricted to a local audience, but that is, in fact, another dimension of the issue here. Samples used in a nationally, or internationally distributed work are far more likely to come to the attention of the original copyright holder.

I have used short samples on occasion myself. It's a judgement call. If I get sued, I'll cross that bridge when I come to it. But I'm not going to spend a whole day trying to track somebody down to get permission to use 3 seconds of audio. That's an absolutely ridiculous waste of time. If I was doing CDs for a major label or working on a TV network show, that would be a different story. But even then I might push the envelope a bit -- simply because the envelope needs to be pushed a bit in this case.

[Charles D. Ballard]

A few more thoughts:

Using recorded TV programs that you mush up in the background so it is no longer recognizable is abstraction. You can do that. However, if you recorded your local newscast and played it as is, even if it's just in the background, you are not within the law.

As far as "short phrases" go it's as simple as this: The phrase "here's looking at you kid." is not copyrightable, however the RECORDING of Bogie saying "Here's looking at you kid" IS copyrighted. So, if YOU say it and use it in your music, it's okay. If you sample Bogie saying it, and use it in a recognizable form without permission, you are breaking the law. However, if you sample Bogie saying it then throw it through your entire Waves bundle and end up with a strange sound that is unrecognizable from the original, you have created an abstraction and can use it.

Last, but not least, when recording actors voices, don't forget about trademarks and that whole new web of legal woes.

Will you get sued if you break copyright law? That depends on one thing: Does the copyright owner feel they can recover the cost of suing you.

-Charles

[rtcstudio]

Originally posted by MissHiss:

I have used short samples on occasion myself. It's a judgement call. If I get sued, I'll cross that bridge when I come to it. But I'm not going to spend a whole day trying to track somebody down to get permission to use 3 seconds of audio. That's an absolutely ridiculous waste of time.

<font size="2" face="Verdana, Arial">I hope you continue to luck out as you obviously have. You will think differently the first time somebody DOES decide to exercise their right to sue you. You act like this is a simple matter. It is not. It will invade your privacy. It will take time away from your work. It will drag on for months, even years. You will spend thousands of dollars defending yourself, even if you win. This does not even begin to account for the anxiety you will go through, affecting everything you do, making you less creative, because this court battle is pervading every day of your life until it is settled.

The TV in the background thing: Be glad it wasn't an NFL football broadcast. There are other examples of organizations that would NOT be forgiving.

Why anyone would take a chance on going through this because it is "GREY" is beyond my comprehension. You obviously do not know anyone who has had to go through this.

I still say check it out before you do it. It is much easier and cheaper to check first, and a lot quicker, than going through a lawsuit.

[Jeff Schmidt]

This reminds me of the Napster debate (is it really stealing or not??) Yes it is BTW. But I digress.

Ask yourself 1 question.

Do you believe your own original works fall under ANY kind of "help yourself" policy regarding sampling or republishing?

I don't know a single professional artist of ANY kind that does.

Sampling without permission is simply wrong and beyond that illegal, which as rtcstudio has said - can make it VERY expensive.

[Freeheel]

I just worked on a film (also low budget) and we spent two days recreating a hockey game, a game show and a "Friends" type sitcom - all for use in the background of a scene. Trying to buy the stuff would have wiped out the budget and our lawyer (who has to sign off on Errors and Omissions insurance) freaked out at even the IDEA of using the stuff without permission. When you have your production company, your lawyer, your distributor and your TV broadcaster in the line of fire, you do not want to make this kind of mistake. .