14 Oct
2003
14 Oct
'03
7:22 a.m.
On Tuesday 14 Oct 2003 8:29 am, Anahata wrote:
I know that laws requiring some sort of
artistic/aesthetic
judgement for their enforcement are on thin ice, but surely it's
easy to determine the intention here. [...] nobody produces a
recording of music with the *intention* that it should be sampled
and used in something else, unless it's something like a sound
effects cellection in which case that intention is quite clear and
the copyright statement would be worded accordingly.
Well, further down my email I asked: Is it just about intention?
Copyright law doesn't normally appear (as far as I can see) to take
intention into account, apart from in certain specific situations
such as fair use or parody. If you accidentally duplicate someone
else's tune, the fact that it was unintentional might mitigate the
damages but it won't save your case, as artists have discovered. And
the legal problem with sampling is not that you're using a recording
in a way other than what was intended, but that you're simply
violating copyright by recording and redistributing it at all.
Intention in the latter situation is surely only relevant in
determining whether someone is liable for actual damages.
A sample CD permits use by including an effective waiver of copyright
in certain situations, that works in the same sort of way as the GPL:
a statement that if you do certain things that would normally be
copyright violations, you won't be sued. Are you suggesting that the
only reason recordings of Rolands are permitted is that Roland are
similarly generously prepared to overlook the copyright violations
inherent in them and decline to take you to court? Or that synths
also need to come with a statement expressly permitting you to use
them as musical instruments, and that recording any synth without
such a license would technically be a copyright violation?
You see we're talking about two separate things here: the copyright
inherent in a "work" (in this case the sound of a synth) and any
additional rights granted or restricted by licence. The sounds in a
sample CD are probably copyrighted, but you have additional rights to
use them in certain ways. The question is: are the sounds in a synth
copyrighted at all? If so, where are the additional rights coming
from that permit me to record them in a commercial song?
Chris