# The legality of sampling audio from films?



## Studio E (Aug 5, 2021)

Does anyone have an answer to this that I can understand? I abhor trying to understand legalese in regard to my passion, music. The context would be, lifting some basic sounds, could be anything, from previous films, in order to use them for sound design. For instance, making knocking sounds, door squeaks, axe swings, or any other Foley type of thing, into samples for further sound design or making rhythmic loops. It's not that the source is important from a practical manner. I have more sounds and the ability to make more sounds than what a person could audition in a lifetime, but it would be a conceptual idea, to use the sounds of previous films of the same genre, in the one I am about to work on, as an homage to the films that set the tone and pace of the genre in general. I really don't imagine ever using something in a way that it would be recognizable in context, but I also don't want to open the door to legal troubles.

Any knowledge on this would be really appreciated. Thank you.


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## Studio E (Aug 5, 2021)

Henrik B. Jensen said:


> There are companies that specialize in producing SFX, for example:
> 
> 
> 
> ...


Oh I understand that. But the point would be to have a direct connection to the films of the genre. It's not necessary, but just from a creative standpoint, it would bear meaning to integrate those actual elements, even if they aren't recognized as such. If anyone knows what can be done, if anything, legally, I'd love to hear it. Thanks.


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## MartinH. (Aug 5, 2021)

Studio E said:


> Oh I understand that. But the point would be to have a direct connection to the films of the genre. It's not necessary, but just from a creative standpoint, it would bear meaning to integrate those actual elements, even if they aren't recognized as such. If anyone knows what can be done, if anything, legally, I'd love to hear it. Thanks.



If they had their sound effects from a library that you can still purchase the sounds from, then that would be a legal and easy way. If not, imho you'd need to get permission for the use of the samples. I don't think you can just take them.


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## Daren Audio (Aug 5, 2021)

I'd definitely reach out to their PR or legal team and get written permission. State that the final sample won't be identical but a derivative. The worst they can say is "No." Their legal/PR team are usually listed in the end credits of the film (use LinkedIN and IMdb Pro to facilliate additional lines of communication). You may need to get permission from multiple individuals depending on the rights management structure but I'm sure their legal/PR team will handle that.


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## Stephen Limbaugh (Aug 5, 2021)

Studio E said:


> For instance, making knocking sounds, door squeaks, axe swings, or any other Foley type of thing, into samples for further sound design or making rhythmic loops.


(If this is American jurisprudence.)

Legal. Some dipshit LA “entertainment” lawyers will advise prudence, but the fact is that there is a long-standing principle of transformativness which would cover you legally via fair use. This is completely different than sampling old music into new music where 4 criteria are applied to discern whether or not “market infringement” has taken place and things like that. You are taking foley sounds that are INHERENTLY NOT MUSICAL then turning them into music. Campbells would own Warhol if the opposite were true. I will fight anyone who disagrees. 🤙🏻😎

edit: btw this is a VERY cool idea! Would love to hear the final product.


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## RonOrchComp (Aug 5, 2021)

Studio E said:


> Does anyone have an answer to this that I can understand? I abhor trying to understand legalese in regard to my passion, music. The context would be, lifting some basic sounds, could be anything, from previous films, in order to use them for sound design. For instance, making knocking sounds, door squeaks, axe swings, or any other Foley type of thing, into samples for further sound design or making rhythmic loops. It's not that the source is important from a practical manner. I have more sounds and the ability to make more sounds than what a person could audition in a lifetime, but it would be a conceptual idea, to use the sounds of previous films of the same genre, in the one I am about to work on, as an homage to the films that set the tone and pace of the genre in general. I really don't imagine ever using something in a way that it would be recognizable in context, but I also don't want to open the door to legal troubles.
> 
> Any knowledge on this would be really appreciated. Thank you.


Definitely not legal, if you are doing this for profit. You can not just lift some sounds from a film, in order to use them for sound design in your project. Even non-profit maybe a no-no.

If I lifted the first chord hit from the opening fanfare from Star Wars, and used that in my own score, would that be legal? No. I can use that chord, orchestrated the same way, but I can't lift and use the recording from the film. What if I warped it and processed it, and made a loop out of it to where it was indistinguishable from the original, would that be legal? No. The chances of anyone noticing might be slim to none, but that doesn't make it legal.

Depending on the usage, it might be fair use, but that might be a stretch. Fair use law does protect you here in certain instances, but you have to meet rather stringent criteria.


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## Stephen Limbaugh (Aug 5, 2021)

Ron and I shall fight. Ron, he isn’t making a derivative work out of existing music.

…even then did Berio owe Mahler’s estate money?


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## NekujaK (Aug 5, 2021)

A film's copyright encompasses all visual and auditory material in the film. Period. So technically, it's illegal. However, if it's a generic-sounding sample or one that you extensively manipulate and modify, then yeah, you probably can get away with it and no one will ever notice or care. But technically, when it comes down to dotting i's and crossing t's, it's illegal.

That said, there are hundreds of public domain films out there you can sample till the cows come home and no one will bother you


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## Stephen Limbaugh (Aug 6, 2021)

NekujaK said:


> A film's copyright encompasses all visual and auditory material in the film. Period. So technically, it's illegal.


Absolutely not true because of fair use exceptions such as transformativness, which is pertinent here. There's legal precedent that's quite easy via internet search on which to become educated... tons of case law.


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## Daryl (Aug 6, 2021)

Studio E said:


> Does anyone have an answer to this that I can understand? I abhor trying to understand legalese in regard to my passion, music. The context would be, lifting some basic sounds, could be anything, from previous films, in order to use them for sound design. For instance, making knocking sounds, door squeaks, axe swings, or any other Foley type of thing, into samples for further sound design or making rhythmic loops. It's not that the source is important from a practical manner. I have more sounds and the ability to make more sounds than what a person could audition in a lifetime, but it would be a conceptual idea, to use the sounds of previous films of the same genre, in the one I am about to work on, as an homage to the films that set the tone and pace of the genre in general. I really don't imagine ever using something in a way that it would be recognizable in context, but I also don't want to open the door to legal troubles.
> 
> Any knowledge on this would be really appreciated. Thank you.


Don't do it. It's illegal.


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## d.healey (Aug 6, 2021)

If the film is in the public domain or released under a Creative Commons type license then it's almost certainly fine. Anything else is copyright infringment.


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## GtrString (Aug 6, 2021)

I wouldn’t do anything of the sort, without getting the samples cleared by the publisher of the work. These times, as revenue goes down, and detection software gets better, copyright holders can make more from lawsuits than the actual work. So don’t think it will pass, you are looking for trouble, and it may hit you back. Just don’t do it.


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## DoubleTap (Aug 6, 2021)

Studio E said:


> Oh I understand that. But the point would be to have a direct connection to the films of the genre. It's not necessary, but just from a creative standpoint, it would bear meaning to integrate those actual elements, even if they aren't recognized as such. If anyone knows what can be done, if anything, legally, I'd love to hear it. Thanks.


It's been touched on slightly but just to be explicit, a lot of sound in films is designed rather than found. So if you're taking any sounds that seem to be part of the action, even things that seem entirely natural may have been Foley created by someone, in which case, is there any creative difference if you use free library sounds that may even have been made by the same designer?

I take your point about meaning, but that means you'll probably have to go through the front door and ask permission, if you ever want to communicate that meaning.

Like, (and Stephen Limbaugh might tell me I'm wrong about this) I could take Mel Brooks saying "Darth Helmet" and turn it into a wavetable then make a heavy hi hat out of it, and I'd probably get away with that. But as soon as I publicised that by telling people "hey, that heavy hat is actually a heavy helmet, aren't I funny" not only would they say no, but Mel Brooks (is he still with us?) wouldn't even have to try to prove copyright infringement , which is one of the hardest parts of the whole exercise for the copyright holder.


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## Studio E (Aug 6, 2021)

Man, thanks for all the input. I'll see what's in the public domain, and look for permission as well. I really appreciate all the information/opinion on this. It's obviously clear as mud, haha. I just assumed that since the music industry had set guidelines for legal use, that the film industry may have as well.


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## creativeforge (Aug 6, 2021)

Good point about "created" sound effects, too. A lot of these sounds are not found but produced using all sorts of kitchen or barn tools. A guy taps his feet on the floor beside a microphone and slowly moves away to create the illusion of walking away. This gets edited in the soundtrack for emphasis. 

Thunder sound with aluminum sheets. Horses hoofs galloping on turf sounds like they are in concrete. Women screams (the actress wasn't hitting it so it gets edited in from another source created for the purpose. A guy is peeing in a pub's toilet. He can't be doing this for an hour to catch the "right" audio. Etc.

Since your project is to publish these with the original movie reference as a marketing tease, I would definitely do the hard work of research. Those who grant you the rights, that could be a fascinating library.

Good luck!


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## Studio E (Aug 6, 2021)

In case I didn’t make my intention clear, I’d be using these non-musical, non-dialogue sounds, for my own sound design to then be used in my own music for another film. Not as a library or anything like that. Just wanted to clarify.


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## Daryl (Aug 6, 2021)

The recording of a film is subject to copyright. Therefore, under most circumstances, you can't sample anything and use it for your own purposes. It's no different from taking a chunk of a commercial recording of a piece of music.


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## creativeforge (Aug 6, 2021)

Studio E said:


> In case I didn’t make my intention clear, I’d be using these non-musical, non-dialogue sounds, for my own sound design to then be used in my own music for another film. Not as a library or anything like that. Just wanted to clarify.


Ah, thanks for clarifying. That could actually help your case in your negotiations with copyright holders.


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## DoubleTap (Aug 6, 2021)

Studio E said:


> In case I didn’t make my intention clear, I’d be using these non-musical, non-dialogue sounds, for my own sound design to then be used in my own music for another film. Not as a library or anything like that. Just wanted to clarify.


Sorry for forumsplaining your job to you! I'm sure you know a lot more about it than me.


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## rrichard63 (Aug 6, 2021)

Two questions. First, does fair use apply to films in the same (or a similar) way it does to text (articles and books)? Second, is fair use defined in the same (or a similar) way in all countries?

Someone already used the expression "clear as mud". I think there are two alternatives. Get permission, or hire a (very expensive) lawyer.


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## NekujaK (Aug 6, 2021)

This is excerpted from the US Copyright Office fair use page:

_*Nature of the copyrighted work*_: This factor analyzes the degree to which the work that was used relates to copyright’s purpose of encouraging creative expression. Thus, using a more creative or imaginative work (such as a novel, movie, or song) is less likely to support a claim of a fair use than using a factual work (such as a technical article or news item). In addition, use of an unpublished work is less likely to be considered fair.
Ultimately, the problem with fair use is that it is open to interpretation, which means even if your particular usage of a movie sample is deemed fair use, it requires a judge to make it so, and that usually only happens as a result of lawsuit and potentially expensive legal battle.


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## averystemmler (Aug 6, 2021)

NekujaK said:


> it requires a judge to make it so, and that usually only happens as a result of lawsuit and potentially expensive legal battle.



This thread is full of good points, but I think this is the best take-away. My understanding is that Fair Use can be a valid defence, but that doesn't stop you from being sued in the first place. If you're getting into a gray area and aren't prepared to fight it out, "prudence" might really be the best policy.

Be especially careful since you're creating this music for another film. I'm not sure how/if that changes the legal case at all, but it certainly raises the stakes and drags more people into the mess with you.

And under no circumstances use anything owned by Disney.


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## Polkasound (Aug 6, 2021)

NekujaK said:


> Ultimately, the problem with fair use is that it is open to interpretation, which means even if your particular usage of a movie sample is deemed fair use, it requires a judge to make it so, and that usually only happens as a result of lawsuit and potentially expensive legal battle.


This is an important point. Fair Use does not guarantee protection from a lawsuit, but rather it's a defense strategy used in the event of a lawsuit.


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## Wally Garten (Aug 6, 2021)

@NekujaK , @Polkasound , and @averystemmler are correct. The fair use doctrine (which is what the "transformativeness" argument would fall under) is an "affirmative defense," meaning that you assert it in litigation after the copyright claimant makes their initial case. Litigation is expensive and can be ruinous. Also, even then, it's a roll of the dice. Copyright rulings are notoriously inconsistent and ad hoc: whether you get the result you want is less about the application of a clear set of rules and more about a judge's personal idiosyncratic judgment call. Unless you are bankrolled by a label, or I suppose some think tank that wants to make a point about IP, it's absolutely not worth it. 

Even if it never gets to litigation, most digital platforms respond pretty aggressively to copyright claims, and if you challenge the claim on fair use grounds, well, their judgment of what constitutes fair use is, to say the least, unpredictable. (Remember that Google's lawyers' job is to protect Google, not to make the internet as free and fair as possible.)

@NekujaK is also right that if you're subtle about it you will probably never get caught. Foley, in particular, seems far less likely to be identified by the algorithms or otherwise flagged for action than dialogue or music. But.... 



Studio E said:


> the point would be to have a direct connection to the films of the genre. It's not necessary, but just from a creative standpoint, it would bear meaning to integrate those actual elements, even if they aren't recognized as such.


If the "direct connection" to genre is something you would just feel privately, no big deal. But if it's a selling point of the music itself, then it seems like you're more likely to attract attention.

IMO, if you can find foley effects from public domain films in the genre you like, that's the best route.

I am not your lawyer, etc.


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## Wally Garten (Aug 6, 2021)

rrichard63 said:


> First, does fair use apply to films in the same (or a similar) way it does to text (articles and books)? Second, is fair use defined in the same (or a similar) way in all countries?


The answer to the first question is yes -- US copyright doctrine applies more-or-less the same way to all copyrightable materials.

The answer to the second question I do not know, and it's an important point. If @Studio E is outside the US, different laws may apply. Though, even then, digital platforms applying US law may still take down your stuff to cover their own a***s.


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## Stephen Limbaugh (Aug 6, 2021)

…or just take the cease and desist to a judge and get a declaratory judgement to avoid a lawsuit in clear fair use cases. 🤙🏻


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## Wally Garten (Aug 6, 2021)

Stephen Limbaugh said:


> …or just take the cease and desist to a judge and get a declaratory judgement to avoid a lawsuit in clear fair use cases. 🤙🏻


Right, so... litigation. See above. And nothing about this is likely to be "clear."

But, hey, as the kids say... f**k around and find out!


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## marclawsonmusic (Aug 6, 2021)

Stephen Limbaugh said:


> …or just take the cease and desist to a judge and get a declaratory judgement to avoid a lawsuit in clear fair use cases. 🤙🏻


You sound like someone who has never spent a moment in court. It's never that easy. Even in Magistrate Court, presenting evidence requires some know-how (of legal process), or the judge will throw it out.

Back to the OP, I don't think this is a good idea. If at any point someone gets the idea your music isn't fully cleared, they might yank it, or it might otherwise harm the director in some way. Too risky.


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## Stephen Limbaugh (Aug 6, 2021)

marclawsonmusic said:


> You sound like someone who has never spent a moment in court


Ha! This tends to be the case with those who abide by the law. Truthfully though, there are other reasons why I have a pretty keen insight on American jurisprudence. Finding a buddy to file a bunch of motions isn’t difficult. 👀😉


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## Tralen (Aug 6, 2021)

Looking from an artistic perspective:

It is your music, your work and passion, do you want to risk it being removed from distribution, from being listened, for the sake of a special effect?

If you answer "yes", then that special effect has become more important than the music itself and in that case, the copyright holders are right in suing you.


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## Wally Garten (Aug 6, 2021)

Wally Garten said:


> Right, so... litigation. See above. And nothing about this is likely to be "clear."
> 
> But, hey, as the kids say... f**k around and find out!


Actually, I'm going to expand on this for OP's benefit and the benefit of anyone who reads this thread later. 

If you go to a judge and ask for declaratory judgment on the basis of fair use (assuming you have actually been threatened with a lawsuit and so have standing to do so), the copyright claimant will very likely counterclaim for copyright infringement. Neither of you is likely to win without costly rounds of motion practice and perhaps discovery (i.e., they have a right to demand your records -- for example, your project files, they have a right to depose you, etc.). Depending on how ambiguous the "transformation" is, you could be looking at the other side bringing in an expert to analyze your work. Which means you need an expert, too. 

None of this is free -- or, if you try to do it for free, your chances of winning fall dramatically.

I am not saying this is fair or just, let alone ideal. Personally, I think "fair use" should cover a lot more than the courts have so far determined it does -- including a reasonable use of sampling in music. I'd like to see a concerted effort in this vein by the artistic community -- though I tend to think that lobbying to clarify the copyright statute (including by shortening the term of copyright) would be more fruitful than litigation. But the bottom line is that there is a reason more people don't mount these challenges more often.

Also, to the extent that this is someone else's film, you should absolutely be above-board with them if you decided to use uncleared samples, so they are aware of the risk.


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## Stephen Limbaugh (Aug 6, 2021)

Yes Wally, but we aren’t talking about $82million in revenue and a famously litigious estate like Gaye’s. This is a score for a horror movie. What Hollywood lawyer is gonna advise they spend $1.7m to potentially make $64,000?

Your point on being above board with the production company that this is the musical plan is right on though. Totally agreed there on transparency.


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## Crowe (Aug 6, 2021)

Stephen Limbaugh said:


> Yes Wally, but we aren’t talking about $82million in revenue and a famously litigious estate like Gaye’s. This is a score for a horror movie. What Hollywood lawyer is gonna advise they spend $1.7m to potentially make $64,000?


Ehm. To protect their copyright? They may. One might say that they must. If they do not, they may lose their right to their copyright as not doing so will set precedent. Copyright must be actively defended.


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## Stephen Limbaugh (Aug 6, 2021)

averystemmler said:


> And under no circumstances use anything owned by Disney.


Btw sidebar…

I always wanted to collaborate with a big Youtube channel and rewrite the words to Once Upon a Dream… troll YouTube’s algorithm into a copyright notice, and see if Disney’s philistine cubicle goblins would attempt to pursue it, get it taken down off of distro, etc. Then troll them with a lawsuit since the melody of that song is by Tchaikovsky 😂


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## Studio E (Aug 6, 2021)

Again, thanks everyone. Whether it’s feasible or not, I would say I’ve been scared enough to not attempt it at this point. It’s too bad really. I mean, with the best of intentions and all, it kind of stinks, and is mildly irritating, as it seems silly considering. All good though. I will move forward and perhaps just dig a little deeper to find that connective tissue that goes beyond the notes.


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## Stephen Limbaugh (Aug 6, 2021)

Crowe said:


> Ehm. To protect their copyright? They may. One might say that they must. If they do not, they may lose their right to their copyright as not doing so will set precedent. Copyright must be actively defended.


Nah. They didn’t with Frank Ocean’s mixtape.


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## Crowe (Aug 6, 2021)

Stephen Limbaugh said:


> Nah. They didn’t with Frank Ocean’s mixtape.


When did 'Nah it didn't happen that one time' become equal to 'nah that never happens'?

Especially since it happens all the time.

I don't particularly want to start a back and forth but I think advising people to do things that can get them into legal trouble is bad form.


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## Stephen Limbaugh (Aug 6, 2021)

Crowe person, dude it’s not just “one time.” It’s an illustration that instances where there aren’t significant damages do not invite expensive litigation from mega corporations. It’s not only common sense to come to this conclusion, but it exists this way _in practice_.


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## Wally Garten (Aug 6, 2021)

Stephen Limbaugh said:


> Yes Wally, but we aren’t talking about $82million in revenue and a famously litigious estate like Gaye’s. This is a score for a horror movie. What Hollywood lawyer is gonna advise they spend $1.7m to potentially make $64,000?


Sure! I agree it's entirely likely that nothing would happen, because (a) it never gets noticed, or (b) it's not worth it to sue. (Of course, one risk you run is that your little horror movie becomes a runaway hit. Then suing you may become more attractive.)

But the specific scenario I was responding to was that there was already a C&D letter and OP went to court to get a declaratory judgment -- in which case I think a Hollywood lawyer would absolutely recommend that their client respond in kind. (At that point it's not even about the specific amount at issue -- you just don't want to develop a reputation for being a soft target for aggressive infringers.)


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## Stephen Limbaugh (Aug 6, 2021)

Wally Garten said:


> Sure! I agree it's entirely likely that nothing would happen, because (a) it never gets noticed, or (b) it's not worth it to sue. (Of course, one risk you run is that your little horror movie becomes a runaway hit. Then suing you may become more attractive.)
> 
> But the specific scenario I was responding to was that there was already a C&D letter and OP went to court to get a declaratory judgment -- in which case I think a Hollywood lawyer would absolutely recommend that their client respond in kind. (At that point it's not even about the specific amount at issue -- you just don't want to develop a reputation for being a soft target for aggressive infringers.)


Ahh ah ah I see what you’re saying. Hard to disagree they would respond in kind.


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## Wally Garten (Aug 6, 2021)

Studio E said:


> Again, thanks everyone. Whether it’s feasible or not, I would say I’ve been scared enough to not attempt it at this point. It’s too bad really. I mean, with the best of intentions and all, it kind of stinks, and is mildly irritating, as it seems silly considering. All good though. I will move forward and perhaps just dig a little deeper to find that connective tissue that goes beyond the notes.


Just to reiterate -- you could still absolutely do this with public domain films, of which there are a lot. I've definitely used dialogue samples from Orson Welles' _The Trial_ before, and there are other films, like _Night of the Living Dead_, that are out of copyright due to mistakes. The Library of Congress has some public domain films available for free use, including Ida Lupino's _The Hitch-Hiker_, and you can find lots of others. It's a little tricky figuring this stuff out on the internet. I wouldn't give up yet -- there are definitely options! (Unless it's like, you need _The Godfather_ specifically.)


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## Stephen Limbaugh (Aug 6, 2021)

One clarification on my opinion in seeking declaratory relief… that’s a strategy to take as opposed to just responding to/ignoring a cease and desist, which would cause rounds of discovery and all kinds of motion filing, etc. The strategy here would be to become a total pain in the ass to corporate counsel who are extremely risk averse (and lazy to be honest). The likelihood of them backing down from their takedown demands greatly increases, in my view, if you are the one initiating litigation, and their copyright claim is dubious from their standpoint anyway!


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## RonOrchComp (Aug 6, 2021)

Studio E said:


> I’d be using these non-musical, non-dialogue sounds, for my own sound design to then be used in my own music for another film.


You absolutely can not do this without clearing the material first.


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## marclawsonmusic (Aug 6, 2021)

Stephen Limbaugh said:


> One clarification on my opinion in seeking declaratory relief… that’s a strategy to take as opposed to just responding to/ignoring a cease and desist, which would cause rounds of discovery and all kinds of motion filing, etc. The strategy here would be to become a total pain in the ass to corporate counsel who are extremely risk averse (and lazy to be honest). The likelihood of them backing down from their takedown demands greatly increases, in my view, if you are the one initiating litigation, and their copyright claim is dubious from their standpoint anyway!


Yep - it's all a Perry Mason game until you are paying the lawyers. Please, stop giving legal advice. Please.


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## Stephen Limbaugh (Aug 6, 2021)

marclawsonmusic said:


> Yep - it's all a Perry Mason game until you are paying the lawyers. Please, stop giving legal advice. Please.


It’s not advice. It is a categorical fact that transformative musical works are covered by fair use.


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## RonOrchComp (Aug 6, 2021)

Stephen Limbaugh said:


> It’s not advice. It is a categorical fact that transformative musical works are covered by fair use.


What studioe is describing is not a transformative musical work.





__





Fair Use: What Is Transformative?


The fair use doctrine is a defense that allows an "infringer" to may make limited use of an original author's work without asking permission. One of the factors weig




www.nolo.com













Transformative Use and Copyright Infringement


Determining whether an alleged infringer's use of a copyrighted work was transformative is one of the main components of the fair use doctrine.




www.justia.com





_no infringement occurred because the defendant added a new meaning and message rather than simply superseding the original work._

What studioe is describing *is* superseding the original work.









Derivative work - Wikipedia







en.wikipedia.org





_ the transformativeness is the new insight that readers, listeners, or viewers gain from the parodic treatment of the original work. As the Court pointed out, the words of the parody "derisively demonstrat[e] how bland and banal the Orbison [Pretty Woman] song" is.

Arriba's use of thumbnails was transformative because "Arriba's use of the images served a different function than Kelly's use — improving access to information on the Internet versus artistic expression."_

*Now please, just stop.*


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## marclawsonmusic (Aug 6, 2021)

Stephen Limbaugh said:


> It’s not advice. It is a categorical fact that transformative musical works are covered by fair use.


I understand that is your opinion, and clearly you have an axe to grind about this topic.

I also understand you have a buddy who can file briefs and write letters on your behalf. Not everyone has that luxury.

The truth is that, to prove anything in court, it takes an attorney... and to hire an attorney costs a minimum $5K retainer. 

All this posturing you are talking about costs real people money. I understand that may not impact _you _- because you have a buddy who can just write up legal shit for you - but if we're talking about 'musicians helping musicians', telling other folks to lawyer up just to prove a point is not very nice or helpful.

Maybe you missed your calling? Have you considered being a lawyer?


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## JDK88 (Aug 6, 2021)

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## Chris Harper (Aug 6, 2021)

I agree with the advice not to use any such material without permission. While a Fair Use defense can always be attempted, the 4 Fair Use factors will be applied differently in every case, and the issue can ultimately only be decided by whichever random judge hears the case in whichever jurisdiction you are sued. Making a Fair Use defense for something you used in a film that is (I presume) primarily for a commercial purpose already places you on the wrong side of one of those factors.

Just as an aside, I did find the decision in Campbell v Acuff-Rose to be particularly entertaining to read. I can’t imagine Justice Souter writing this decision without laughing out loud:

“Here, the District Court held, and the Court of Appeals assumed, that 2 Live Crew's "Pretty Woman" contains parody, commenting on and criticizing the original work, whatever it may have to say about society at large. As the District Court remarked, the words of 2 Live Crew's song copy the original's first line, but then "quickly degenerat[e] into a play on words, substituting predictable lyrics with shocking ones . . . [that] derisively demonstrat[e] how bland and banal the Orbison song seems to them." 754 F. Supp., at 1155 (footnote omitted). Judge Nelson, dissenting below, came to the same conclusion, that the 2 Live Crew song "was clearly intended to ridicule the white bread original" and "reminds us that sexual congress with nameless streetwalkers is not necessarily the stuff of romance and is not necessarily without its consequences. The singers (there are several) have the same thing on their minds as did the lonely man with the nasal voice, but here there is no hint of wine and roses." 972 F. 2d, at 1442. Although the majority below had difficulty discerning any criticism of the original in 2 Live Crew's song, it assumed for purposes of its opinion that there was some. _Id._, at 1435-1436, and n. 8.”


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## Stephen Limbaugh (Aug 6, 2021)

RonOrchComp said:


> What studioe is describing is not a transformative musical work.
> 
> 
> 
> ...


You should look up a case about a piece called “I Need A Jew.” That’s bringing new meaning to a work and that melody is ripped off note for note.

This issue here concerns taking *non musical sound recordings* and creating original music out of them. That is not new music derivative of preexisting music. A collage of corporate trademarks reappropriated in a Banksy mural is not infringement, just like what Berio did was not. Is a different purpose not present than the original copyrighted material? Are new aesthetics not present? Can a listener not potentially glean new insights from it? Does the presence of such attributes not enrich society?


Edit: btw, mods if that first sentence gets flagged by some fussy user, please Google that case before moderating… it’s the actual name of the song from _Family Guy_. 😊


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## Stephen Limbaugh (Aug 6, 2021)

marclawsonmusic said:


> Maybe you missed your calling? Have you considered being a lawyer?


You may not know why this question is so so so funny 😂


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## Nova (Aug 6, 2021)

I was a huge industrial music fan back in the 80's and always wondered if bands like Skinny Puppy and Ministry paid for the rights to use dialogue from movie clips. Did Uncle Al pay for the rights to Full Metal Jacket?


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## RonOrchComp (Aug 7, 2021)

Stephen Limbaugh said:


> You should look up a case about a piece called “I Need A Jew.” That’s bringing new meaning to a work and that melody is ripped off note for note.


Ok, just did









"Family Guy" wins court battle over song


Creators of the U.S. television show "Family Guy" did not infringe copyright when they transformed the song "When You Wish Upon a Star" for comical use in an episode, a U.S. judge ruled on Monday.




www.reuters.com





That is a different use than what studioe is doing, as I previously mentioned. But you do not want to seem to get that.


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## Stephen Limbaugh (Aug 7, 2021)

RonOrchComp said:


> That is a different use than what studioe is doing, as I previously mentioned. But you do not want to seem to get that.


“_That’s bringing new meaning to a work and that melody is ripped off note for note.

This issue here…_”

When a point is made followed by a phrase like “the issue here,” it demarcates a distinction/dissimilarity between the two. Missing simple rhetorical devices such as will make it extremely difficult for you to follow this subject and contribute in a meaningful way. 🤷🏻‍♂️


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## RonOrchComp (Aug 7, 2021)

Stephen Limbaugh said:


> When a point is made followed by a phrase like “the issue here,” it demarcates a distinction/dissimilarity between the two. Missing simple rhetorical devices such as will make it extremely difficult for you to follow this subject and contribute in a meaningful way.


“_That’s bringing new meaning to a work and that melody is ripped off note for note._

Yep - saw that. But that does not apply here, as that is not what studioe is doing.

What you are doing there, is using the age-old childish and immature tactic of hurling an insult at someone because you do not have a valid and meaningful response. Furthermore, your response tells me that you aren't paying attention to anything you really don't want to.



Stephen Limbaugh said:


> Ron and I shall fight.



Nice, dude.


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## Peter Williams (Aug 7, 2021)

An interesting discussion. I would always have to run this kind of action through my own ethical filter first. If there is any doubt after that (about legality..not the ethical issue), I'd want some legal guidance just for my own peace of mind. And I don't think a website such as this one could offer the final word. We are living in the most litigious culture on the planet, so we must take care.


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## Stephen Limbaugh (Aug 7, 2021)

Ron do you have a counter argument for the Bansky example?


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## RonOrchComp (Aug 7, 2021)

Stephen Limbaugh said:


> Ron do you have a counter argument for the Bansky example?



Man, you really enjoy being combative don't you?

Refresh my memory here - what is the 'Bansky example'?


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## Stephen Limbaugh (Aug 7, 2021)

Stephen Limbaugh said:


> A collage of corporate trademarks reappropriated in a Banksy mural


Transformative?


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## pinki (Aug 7, 2021)

God this thread is so toxic. I wish I hadn't read it. A simple request for support turns into this. I need a break from V.I Control, it's such a grumpy, male, middle aged miserable place.
Over and out.


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## Stephen Limbaugh (Aug 7, 2021)

pinki said:


> God this thread is so toxic. I wish I hadn't read it. A simple request for support turns into this. I need a break from V.I Control, it's such a grumpy, male, middle aged miserable place.
> Over and out.


Yeah, well, the ”middle aged” guys are the ones still clinging on to some 1990s Donald Passman/UCLA Extension/blogger view of copyright. Us millennials have a cheeky phrase for that: “Ok Boomer.” 

The discussion of fair use amongst creators is extremely important and will no doubt continue to be fiercely debated here and elsewhere. The “_promot[tion of] the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries_” necessitates an artist’s reappropriation of *tiny elements* of existing artistic works that are transformed into new and wonderful creations that enrich society.

This is NOT an argument that anyone can/should lift other’s work without any sort of rigid standards — quite the opposite. Sampling tiny non musical foley effects and turning them into a musical work is a creation that was completely inconceivable 100 years ago, and certainly to the framers of the constitution. It is why such a radical idea not only deserves fair use protections, but should be immediately evoking our praise as artists! Courts have affirmed the visual analogs of this concept, and “high art” composers such as Berio have already written these collage-type works, though not with foley effects and suffered no legal consequences (because there’s no case).

But the sad and surprising part are the number of artists frozen with risk aversion. No doubt an outcropping of an overly litigious society, but cowardice is no virtue. Alas, there’s not much use in talking an artist outside of the box in which he has put himself. 

If anyone has trouble handling sharp criticism, then it probably is a good idea to take a break. Also probably a good idea to avoid any threads I have started concerning errant parallel motion, orchestration, that the Yamaha grand at Ocean Way is a piece of shit (lol), or why it’s bad that Berlin Strings force incoherent string changes on intervals that should be played on one string.


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## averystemmler (Aug 7, 2021)

Stephen Limbaugh said:


> Yeah, well, the ”middle aged” guys are the ones still clinging on to some 1990s Donald Passman/UCLA Extension/blogger view of copyright. Us millennials have a cheeky phrase for that: “Ok Boomer.”


I must have been too busy killing Applebees and wasting my life savings on avocado toast to sign up for the Fair Use crusade. You go on ahead, I'll catch up once we finish blasting Jeff Bezos off to space.

But seriously, the thread is about whether or not there is a legal risk, and the answer was a near-unanimous "possibly." "Possibly" is more of a risk than most of us can afford, and calling it "cowardice" is cruel and, frankly, absurd in the context of current events.


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## Stephen Limbaugh (Aug 7, 2021)

Well, making more than 7 figures in music is a legal risk… being anywhere on the billboard charts is a legal risk. If a decent amount has been earned, there’s risk that some schmo somewhere might sue. Consider the risk of being famous for having authored a well-received piece of art: who comes after the artist‘s past, and for what reason, legitimate or illegitimate.

Is being wealthy or famous musician a risk that most cannot afford?


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## averystemmler (Aug 8, 2021)

Stephen Limbaugh said:


> Well, making more than 7 figures in music is a legal risk… being anywhere on the billboard charts is a legal risk. If a decent amount has been earned, there’s risk that some schmo somewhere might sue. Consider the risk of being famous for having authored a well-received piece of art: who comes after the artist‘s past, and for what reason, legitimate or illegitimate.
> 
> Is being wealthy or famous musician a risk that most cannot afford?


Being wealthy is expensive, sure. Thankfully, once you're wealthy, you're wealthy.

Maybe I'm being presumptuous, but I don't think anyone in this thread is wealthy.


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## Stephen Limbaugh (Aug 8, 2021)

averystemmler said:


> Being wealthy is expensive, sure. Thankfully, once you're wealthy, you're wealthy.
> 
> Maybe I'm being presumptuous, but I don't think anyone in this thread is wealthy.


I don’t know either. Just making the point that financially ruinous risks are “possible” when making music that could become famous or lucrative.

Was attempting to illustrate my view that avoiding artistic pursuits based on risk assessment can be applied to any work of art, derivative or not, because once there is success, lawsuits inevitably follow. So, why worry if the outcome is going to be the same regardless?


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## averystemmler (Aug 8, 2021)

Stephen Limbaugh said:


> I don’t know either. Just making the point that financially ruinous risks are “possible” when making music that could become famous or lucrative.
> 
> Was attempting to illustrate my view that avoiding artistic pursuits based on risk assessment can be applied to any work of art, derivative or not, because once there is success, lawsuits inevitably follow. So, why worry if the outcome is going to be the same regardless?


Risk is additive. Using copyrighted material - whether or not it falls under Fair Use - adds an additional layer of risk to the baseline that comes with the job. Whether or not the artistic rewards are worth the increased risk is not my call, or yours. Studio E wouldn't have started this thread if he weren't concerned about infringing on copyright, and becoming wealthy and famous is entirely out of scope with the question he asked. Thankfully, I think he got the information he needed to make an informed decision.


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## rrichard63 (Aug 8, 2021)

averystemmler said:


> ... the thread is about whether or not there is a legal risk, and the answer was a near-unanimous "possibly." "Possibly" is more of a risk than most of us can afford ...


This sums it up very well.


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## Soundbed (Aug 8, 2021)

It’s only ok if you’re using the Wilhelm scream. /sarcasm


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## Stephen Limbaugh (Aug 8, 2021)

averystemmler said:


> Risk is additive. Using copyrighted material - whether or not it falls under Fair Use - adds an additional layer of risk to the baseline that comes with the job. Whether or not the artistic rewards are worth the increased risk is not my call, or yours. Studio E wouldn't have started this thread if he weren't concerned about infringing on copyright, and becoming wealthy and famous is entirely out of scope with the question he asked. Thankfully, I think he got the information he needed to make an informed decision.


Maybe this rationale works for consulting agencies/corporate departments tasked with mitigating liability for Wall St. firms or Fortune 500 companies, but it's a bit of a stretch to claim this is a reasonable standard to apply to individual *creative* endeavors of *highly* *transformative* output.

A person can _claim_ they are reducing their risk of an automobile accident if they give up their car and ride a bike. However, it is just as likely that person could be involved in an automobile accident on their bike so long as they use it to traverse the town. The risk "baseline" may appear on paper as reduced, but in practice it is not.

There is an incalculable amount of risk (conventionally ascertained, that is) assumed when one makes the choice to be an artist. If a sudden God-given spark of inspiration is immediately squashed by a powerful left-brained risk narrative, there is a question of the degree to which one can actually call themselves an artist. Artists by definition must give up the false hope of certainty.

All that said, the issue at this point is not my assessment of StudioE's fair use exemption, but *other people's fear* of *frivolous* lawsuits being the basis for abandoning a good idea. Put that way, fear sounds pretty irrational doesn't it?


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## averystemmler (Aug 8, 2021)

Stephen Limbaugh said:


> Maybe this rationale works for consulting agencies/corporate departments tasked with mitigating liability for Wall St. firms or Fortune 500 companies, but it's a bit of a stretch to claim this is a reasonable standard to apply to individual *creative* endeavors of *highly* *transformative* output.
> 
> A person can _claim_ they are reducing their risk of an automobile accident if they give up their car and ride a bike. However, it is just as likely that person could be involved in an automobile accident on their bike so long as they use it to traverse the town. The risk "baseline" may appear on paper as reduced, but in practice it is not.


Simple addition needn't be relegated to the rich. 1 risk + 1 risk = 2 risks. 2 risks > 1 risk.

As someone who rode a bike in the city for years, I sure hope your theoretical biker is wearing a helmet. Biking is far more dangerous than driving a car, and he should take *sensible precautions*. It's possible that he'll just get flattened by a truck and it won't matter, but if he doesn't, he'll be thankful he acted with forethought and didn't add the unnecessary risk of a traumatic brain injury to his already treacherous commute.



Stephen Limbaugh said:


> If a sudden God-given spark of inspiration is immediately squashed by a powerful left-brained risk narrative, there is a question of the degree to which one can actually call themselves an artist. Artists by definition must give up the false hope of certainty.


Really not sure where you got this definition. History's greatest artists worked under far more restrictive circumstances than we're discussing here. You could even argue that the left-brained risk narrative defined the art in the first place. I just watched a video about the lengths to which Shostakovich would go to keep in Stalin's good graces, and I think you'd be hard pressed to find a great work of art that wasn't affected by the frivolous limitations of the society it was created in. Sometimes in compliance with them, sometimes straining against them, but never free of them. At the end of the day, it's the artist that gets to decide how much they're willing to put on the line.



Stephen Limbaugh said:


> All that said, the issue at this point is not my assessment of StudioE's fair use exemption, but *other people's fear* of *frivolous* lawsuits being the basis for abandoning a good idea. Put that way, fear sounds pretty irrational doesn't it?


We can twist the semantics back and forth, but no, it does not sound irrational to me in the slightest. We make decisions based on other people's knowledge, opinions, and fears constantly. Sometimes we even make posts on forums, specifically seeking them.


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## Stephen Limbaugh (Aug 8, 2021)

averystemmler said:


> I just watched a video about the lengths to which Shostakovich would go to keep in Stalin's good graces


🤔 ....you've listened to Shostakovich's music before, right?

Regardless, there's a big difference between "I _shall_ send you to the gulag if you engage in X" and enduring the potential a cease and desist order argued on dubious grounds. Totalitarian regimes offer creators if/then choices. That's completely different than risk assessment, which has to do with *possibilities*.

As to the first point, the math isn't applied correctly for artistic endeavors. If John reads two orchestration books, and Sally reads one orchestration book, John doesn't necessarily have double the orchestration knowledge of Sally. There are innumerable reasons why Sally may have more orchestration knowledge not related to the mere act of reading books. Apply this to the concept that there is any more or less legal risk when limiting oneself the opportunity to create derivative works protected by fair use.

StudioE writes a piece with tiny bits of foley. 
You write a piece containing the pitch sequence _do do do sol me me do._ 

You really believe that one is at less legal risk than the other if either earn a bunch of money?

My general opposition has argued to avoid anything that could invite *a* lawsuit, meritless or not. My contention is that *everything does* so long as it has become either famous or earned a lot of money. The outcome being *inevitable*, risk assessment isn't even really applicable.


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## averystemmler (Aug 8, 2021)

Stephen Limbaugh said:


> 🤔 ....you've listened to Shostakovich's music before, right?


Yes?



Stephen Limbaugh said:


> Totalitarian regimes offer creators if/then choices.


They offer intimidation, which doesn't always come with a contract. But this isn't a tangent worth either of our time.



Stephen Limbaugh said:


> As to the first point, the math isn't applied correctly for artistic endeavors. If John reads two orchestration books, and Sally reads one orchestration book, John doesn't necessarily have double the orchestration knowledge of Sally. There are innumerable reasons why Sally may have more orchestration knowledge not related to the mere act of reading books. Apply this to the concept that there is any more or less legal risk when limiting oneself the opportunity to create derivative works protected by fair use.


I understand what you're getting at, but the analogies aren't helping, and I suppose my stupid math one isn't either. I'm not saying that all risks are equal, that would be absurd. I'm saying that the sum of two risks is always going to be greater than either risk individually.



Stephen Limbaugh said:


> StudioE writes a piece with tiny bits of foley.
> You write a piece containing the pitch sequence _do do do sol me me do._
> 
> You really believe that one is at less legal risk than the other if either earn a bunch of money?


So, to my point above, there are three completely independent risks here. The risk of infringing on copyrighted foley. The risk of writing a contentious pitch sequence. The risk of being famous.

Each of these could possibly get you sued. The risk that comes with being famous might dwarf the others, but you're still more likely to get sued if you're famous AND you've lifted someone else's foley, than if you're just famous.



Stephen Limbaugh said:


> My general opposition has argued to avoid anything that could invite *a* lawsuit, meritless or not. My contention is that *everything does* so long as it has become either famous or earned a lot of money. The outcome being *inevitable*, risk assessment isn't even really applicable.


No offense to the original poster, but I'd hardly call the work becoming famous inevitable. But, if it did, it also wouldn't immediately guarantee a lawsuit. Unless of course it's clearly infringing on someone's copyright.

Overall, I don't see the general advice in this thread as being overly fretful, just answering the original question. Lifting copyrighted material is something you can be sued for. You argued for transformativeness under fair use, and we pointed out that that's not necessarily going be a meaningful protection, and certainly isn't going to stop things like DMCA takedown requests. That alone could be enough to scare filmmakers away. It sucks, but the original poster should be made aware of it.


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## averystemmler (Aug 8, 2021)

Henrik B. Jensen said:


> Let’s all meet behind the barn after dinner - we need to settle this once and for all.


We can record some farm Foley while we're there.


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## Daryl (Aug 9, 2021)

This is all getting very off topic. The topic is can one just use a recording, for which you have no right to use. The answer is almost always "no". It's a s simple as that.


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## Mike Greene (Aug 13, 2021)

Stephen Limbaugh said:


> Suppose John Williams' original Star Wars score was written in and recorded for the first time in 2021, and Korngold was still alive. A lawyer at the studio, then the producers would order a rewrite because it would be "too risky" to open themselves up to a *potential* lawsuit. Humanity would have lost one of its most cherished works due to legal fears DESPITE the fact that there is clearly no infringement.


Similarly, Andy Warhol would have never painted his Campbell's soup cans. Rap would probably not exist. All sorts of classic songs ("Happy Birthday" or the "Star Spangled Banner") use borrowed melodies. And I doubt Yes cleared the orch hits in "Owner of a Lonely Heart." They're all art, and scofflaws that they may be, I'm glad we have all of them.

Copyright law exists to encourage/incentivize art, not stifle it. Once the lawyers get involved, then stifling becomes the focus, because that's what lawyers do. But that's not why the laws were created.

To be clear, I agree that technically speaking, taking a sample off a film is almost surely a copyright violation. (My personal opinion is it wouldn't qualify as fair use.)  Either way, though, we're not talking about blatant song copying, so I'm with Stephen that the bigger priority is to _make the art_. Might you get sued? Maybe, but I'd rather be Cypress Hill and pay a few settlements than remain an unknown rap trio in South L.A.

You only get sued if you make enough money to get sued for, by the way. Stevie Wonder isn't suing anybody for using "Isn't She Lovely" in their Facebook videos of their newborns. And even if you do get sued, I've never heard of anyone paying a bigger settlement than the profits they made. (Rappers usually would just lose the publishing, for instance. They keep everything else.)

So especially in Eric's case (the OP) where it sounds to me like there's true creative benefit to bending the rules a bit, I say go for it and make your art. I'll even bet if the creators of those films (who undoubtedly understand what it's like to have an artistic vision) could answer off the record, they'd say go for it, too.


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## Loïc D (Aug 13, 2021)

You could do it and if troubles come, pretend afterward that it comes from an old Fairlight floppy disk


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## Daryl (Aug 15, 2021)

Stephen Limbaugh said:


> It's not off topic to discuss *fair use*, which you obviously have no concept of, to aid in answering a question concerning copyright.


OK, in the OP's case, what fair use exists by ripping someone else's recording, and using it yourself?


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## AudioLoco (Aug 15, 2021)

Legally... might be risky. Especially as many SFX are designed, by other people.
Artistically... Yawn... done already heard already.... A million times...
Morally.... Just make your own sounds to "sample" or pay for ready made ones


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