# Legality of sampling soft synths



## thesteelydane (Jan 25, 2021)

Hoping someone can shed some light on this. There’s loads of sample libraries out there that as sound source samples of hardware synths, either raw or further processed.

But what is the legality of sampling a software synth you own and selling those samples in a commercial product? Seems to me it’s the same situation as if you owned a hardware synth.

To be clear I’m not intending to use the sounds “raw” but rather as sound source for further processing and possibly combining them with recorded samples of acoustic instruments.

I looked at U-he’s eula, but couldn’t find anything.

I understand that using samples as a sound source for a new product is a big no-no, since you don’t own the samples, just a license to use them in music. I certainly wouldn’t want anyone doing it it with my products without securing a licensing deal with me first. But a soft synth is more like an instrument that you own, I think....


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## d.healey (Jan 25, 2021)

This has been asked a few times in different ways - https://vi-control.net/community/search/550225/?q=legality+of+sampling+synth&o=relevance

Basically if you're resampling samples it's a no no. If you're sampling the output of an algorithm then people have different opinions and it seems to be a fuzzy legal area so either ask a lawyer or don't do it.


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## thesteelydane (Jan 25, 2021)

d.healey said:


> This has been asked a few times in different ways - https://vi-control.net/community/search/550225/?q=legality+of+sampling+synth&o=relevance


Ah...thanks!


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## chillbot (Jan 25, 2021)

d.healey said:


> people have different opinions and it seems to be a fuzzy legal area so either ask a lawyer or don't do it.


Or hide it really well and don't tell anyone!


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## thesteelydane (Jan 25, 2021)

d.healey said:


> Basically if you're resampling samples it's a no no.


That I’m well aware of (I have updated the post). To me it comes down to the difference between a sample library, which are recordings you buy a license to use, and whether a soft synth can be considered an instrument you actually own, like I own my viola.


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## reborn579 (Jan 26, 2021)

thesteelydane said:


> That I’m well aware of (I have updated the post). To me it comes down to the difference between a sample library, which are recordings you buy a license to use, and whether a soft synth can be considered an instrument you actually own, like I own my viola.


i think as long as you create your own presets and make sure you've made the sounds really your own, it should be fine. 🤔


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## Daryl (Jan 26, 2021)

reborn579 said:


> i think as long as you create your own presets and make sure you've made the sounds really your own, it should be fine. 🤔


And you have to make sure that the original soft synths weren't created from samples.


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## reborn579 (Jan 26, 2021)

Daryl said:


> And you have to make sure that the original soft synths weren't created from samples.


well, wouldn't it depend on how much one modifies those sounds? if one would directly sample let's say a moog synth from arturia, yes, definitely not ok. but if one modifies that synth and makes it sound quite different - for example one creates a pad sound with added reverbs, delays, compression etc - wouldn't that be ok?

i wouldn't have the patience to create a sample library, but i do enjoy this theoretical exercise


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## thesteelydane (Jan 26, 2021)

@Daryl 
Well, I just learned that Omnisphere allows you to sample sounds you make with it, as long as you ONLY use the digital oscillators, and not the sampled content. This makes perfect sense to me.


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## Daryl (Jan 26, 2021)

reborn579 said:


> well, wouldn't it depend on how much one modifies those sounds? if one would directly sample let's say a moog synth from arturia, yes, definitely not ok. but if one modifies that synth and makes it sound quite different - for example one creates a pad sound with added reverbs, delays, compression etc - wouldn't that be ok?
> 
> i wouldn't have the patience to create a sample library, but i do enjoy this theoretical exercise


No, if the base sound is made using recordings, you are breaking copyright. It doesn't matter whether it sounds like it or not.


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## Polkasound (Jan 26, 2021)

reborn579 said:


> well, wouldn't it depend on how much one modifies those sounds?


@Daryl is correct. A copyright for an instrument sample is like a copyright for a band's CD. You can't rip a drum hit from a band's CD and freely use it, because even if you embellish it with EQ and reverb until it's unrecognizable, you're still redistributing copyrighted material. But you are welcome to recreate the sound of that drum hit using your own devices, because the sound itself is not copyrighted.

What @thesteelydane posted above about Omnisphere is so enlightening, it should almost be a sticky. A developer of one of the world's most popular soft synths is saying, "Yes, you may create samples from our product as long as prerecorded source material is not being used."

Some soft synth developers may not be as gracious as Spectrasonics, so it's important to read each developer's EULA. If the information you're looking for isn't in the EULA, reach out to the developer.


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## AceAudioHQ (Jan 26, 2021)

Polkasound said:


> A copyright for an instrument sample is like a copyright for a band's CD. You can't rip a drum hit from a band's CD and freely use it, because even if you embellish it with EQ and reverb until it's unrecognizable, you're still redistributing copyrighted material.


Doesnt the transformative use come into play in this case if it’s mangled unrecognizeable?


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## reborn579 (Jan 26, 2021)

Polkasound said:


> @Daryl is correct. A copyright for an instrument sample is like a copyright for a band's CD. You can't rip a drum hit from a band's CD and freely use it, because even if you embellish it with EQ and reverb until it's unrecognizable, you're still redistributing copyrighted material. But you are welcome to recreate the sound of that drum hit using your own devices, because the sound itself is not copyrighted.


well, i guess it's good to know


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## thesteelydane (Jan 26, 2021)

AceAudioHQ said:


> Doesnt the transformative use come into play in this case if it’s mangled unrecognizeable?


No, never with samples. I put hundreds of hours into recording, editing, mixing and programming Bunker Strings. Imagine how pissed I would be if someone piggybacked of that work to create a hybrid strings library by merely processing my recordings a bit. And that’s not even taking into consideration that I still own those recordings, I simply sell a license to use them.

I do have a couple of licensing deals with a couple people, who reached out and asked to use Bunker Strings as source material for libraries of their own. I get a cut of their sales, and that’s the way it should be.

Now if I buy a hardware synth that uses only analog oscillators to create sounds, obviously I can sample that the same way I can sample my viola. That’s why I wonder how that scenario transfers to softsynths that use digital oscillators.


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## Polkasound (Jan 26, 2021)

AceAudioHQ said:


> Doesnt the transformative use come into play in this case if it’s mangled unrecognizeable?


I'm no expert on sample copyrights, but I'd think whether a transformed sample falls inside or outside Fair Use wouldn't depend just on how transformed it is, but more importantly how it is used. For example, is the person creating a sample library to distribute or sell for profit, or are they playing the transformed sample in a vlog to express an opinion about the sample itself?


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## JEPA (Jan 26, 2021)

AFAIK Spectrasonics used for Omnisphere sources from different synths and soft synths included Legacy Propellerhead’s Reason (Malmström). I remember to have seen an extensive list of the sources on their webpage a long time ago..


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## Daryl (Jan 27, 2021)

AceAudioHQ said:


> Doesnt the transformative use come into play in this case if it’s mangled unrecognizeable?


There is no such thing. If you are using a recording that you don't own, you are breaching copyright.


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## Daryl (Jan 27, 2021)

Polkasound said:


> I'm no expert on sample copyrights, but I'd think whether a transformed sample falls inside or outside Fair Use wouldn't depend just on how transformed it is, but more importantly how it is used. For example, is the person creating a sample library to distribute or sell for profit, or are they playing the transformed sample in a vlog to express an opinion about the sample itself?


It actually doesn't really matter what you do to it, so it's realtively easy to understand. If you use a recording belonging to someone else, there are only certain uses that are legal, without first getting a licence. One of them is education, but you'd have to show that it was only a restricted part of the recording. In your example, you would have no access to the sample without actually buying (a licence) or being given a copy, so you would be using it legally anyway.


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## Nils Neumann (Jan 27, 2021)

thesteelydane said:


> No, never with samples. I put hundreds of hours into recording, editing, mixing and programming Bunker Strings. Imagine how pissed I would be if someone piggybacked of that work to create a hybrid strings library by merely processing my recordings a bit. And that’s not even taking into consideration that I still own those recordings, I simply sell a license to use them.


Just to entertain the thought. 

Developers of soft synths also put hundreds of hours into making their product. Same goes for a Luthier who builds your Viola.

I could imagine that they also could feel pissed if someone piggybacked their product and just sampled it.
Right?


I think this is all more a legal discussion, because the ethics a weird here.


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## DivingInSpace (Jan 27, 2021)

Honestly, i always saw soft synths as simply synths/instruments, so it surprises me that this should be a grey area. Nice to hear that Spectrasonics is down with people sampling their digital oscillators. I'll be following and seeing what other people say. 
I think that Sound Dust did a sampled version of his soundset for Zebra. Wondering if he cleared that with u-he or just went for it.


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## Daryl (Jan 27, 2021)

Nils Neumann said:


> Just to entertain the thought.
> 
> Developers of soft synths also put hundreds of hours into making their product. Same goes for a Luthier who builds your Viola.
> 
> ...


It's not about ethics, it's about breach of copyright. If you use someone else's recording, without permission, to make your own product, you are breaching copyright.


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## Nils Neumann (Jan 27, 2021)

Daryl said:


> It's not about ethics, it's about breach of copyright. If you use someone else's recording, without permission, to make your own product, you are breaching copyright.


I said "I think this is all more a legal discussion, because the ethics a weird here."

Edit:

I just thought the argument of "I put so many hours into this", therefore I would be pissed if somebody made easy money out of it flawed. I rephrased it how a Luthier would feel if the instrument he build is sampled.

And then I concluded that it is a legal question, as you then told me again.
The underlying ethnics are quit complex and also interesting, but as you and I said, it is a legal discussion.


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## thesteelydane (Jan 27, 2021)

Nils Neumann said:


> Just to entertain the thought.
> 
> Developers of soft synths also put hundreds of hours into making their product. Same goes for a Luthier who builds your Viola.
> 
> ...


Yes, of course, I completely agree. But there is a difference between selling sample libraries, which is selling a license to a recording you own, and making a synth which is akin to being an instrument builder. The fact that you can play my sounds like an instrument from a keyboard is irrelevant, because all you bought is a license to use sounds I created in your music. Synth makers don’t create sounds, they create tools to create sound, I.e. instruments.

In that regard, should the women who built my viola for me be upset that I have sampled it? No One bats an eyelid when people sample a hardware synth. Should the makers of that hardware synth be upset? How much like a real instrument is a software synth?

For the record I’m not talking about straight up sampling patches and releasing them as the sound of “that software synth”. I’m talking about processing that sound, and blending it with acoustic samples. Since I bought the soft synth, do I now own the sound that it played a part in creating. In other words, can I license that sound to others?

Being a developer myself, the last thing I want to do is rip of any soft synth creators. Maybe I’ll just buy a hardware synth and use that, no one will object to that...I think?


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## doctoremmet (Jan 27, 2021)

thesteelydane said:


> Maybe I’ll just buy a hardware synth and use that, no one will object to that...I think?


Hitting the nail on the head.


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## Crowe (Jan 27, 2021)

This stuff becomes rather complicated fast as there's such a thing as hardware wavetable synths that basically use recordings as oscillators. You're still allowed to sell music made with Romplers, even if you're not allowed to sell the samples themselves.

As far as synthesizers are concerned, my rule is to not use synths that straight up use samples to do the same thing I'm trying to use them for. So no 808 samplers, only algorithmic emulations.

If any company would like to sue me because I used their synth's sine wave to create a kick drum, I'll gladly go to court; I don't deal with bulls**t very well.


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## Anders Wall (Jan 27, 2021)

thesteelydane said:


> Maybe I’ll just buy a hardware synth and use that, no one will object to that...I think?


Couldn’t a processor, sound card, some code and something to control the code be a synth?
If so, isn’t a computer hardware?

I’d say most of us would have a hard time identifying a hardware sine/tri/saw-wave from a software. I know
I would. So unless the oscillators are trademarked you should be ok using a soft-synth.

Best of luck!
/Anders


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## doctoremmet (Jan 27, 2021)

Anders Wall said:


> Couldn’t a processor, sound card, some code and something to control the code be a synth?
> If so, isn’t a computer hardware?
> 
> I’d say most of us would have a hard time identifying a hardware sine/tri/saw-wave from a software. I know
> ...


Logic dictates that you and @Shiirai are right. But law and logic... don’t really match do they? I get Nikolaj’s concerns...


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## AceAudioHQ (Jan 27, 2021)

Daryl said:


> There is no such thing. If you are using a recording that you don't own, you are breaching copyright.


What do you mean? It’s mentioned in US Copyright law


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## Daryl (Jan 27, 2021)

AceAudioHQ said:


> What do you mean? It’s mentioned in US Copyright law


US Copyright law is only relevant to the US, and is not in the slightest bit relevant to using a recording which you have no rights to use.


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## ReleaseCandidate (Jan 27, 2021)

Daryl said:


> There is no such thing. If you are using a recording that you don't own, you are breaching copyright.


No that's wrong. Only as soon as it's recognizable, you're in trouble in the EU. Single note/drum-hit/... samples: no problem. Longer loops: depends, better be safe than sorry.



> The CJEU held that a phonogram producer’s exclusive right to reproduce and distribute his or her phonogram allowed him, in principle, “to prevent another person from taking a sound sample, even if very short,” and include it into another sound sequence. However, taking into account “freedom of the arts,” a phonogram producer could not assert any rights when that sample was included in a sound sequence “in a modified form unrecognisable to the ear.” What degree of modification is necessary to make a sound sample “unrecognsiable” and from whose angle (that of the average consumer or of someone with knowledge of music) was left open by the Court.
> 
> In another aspect of the decision, the CJEU emphasized that national EU legislators are not allowed to limit a phonogram producer’s rights beyond the scope of Art. 5 of the “InfoSoc Directive” (2001/29/EC). Therefore, it is unclear whether an exception to copyright can still apply in cases in which the appropriated part of a work disappears within the new creation (section 24 para. 1 of the German Copyright Act). However, the CJEU stated that the use of a sample may be covered by a “quotation” exception, provided that the use of the sample “has the intention of entering into dialogue with the work from which the sample was taken.”



There was that 22 year court court battle between Kraftwerk and Moses P. that started in Germany. Was a 2 second loop.








Court of Justice of the EU Rules on Copyright Implications of Sampling in Music


On 29 July 2019, the Court of Justice of the European Union (CJEU) ruled on the copyright implications of sampling in music and established criteria…




www.lexology.com





So, 30 years or so in the future we'll get a definitive answer to the question of softsynths


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## Polkasound (Jan 27, 2021)

Daryl said:


> It actually doesn't really matter what you do to it, so it's realtively easy to understand. If you use a recording belonging to someone else, there are only certain uses that are legal, without first getting a licence. One of them is education, but you'd have to show that it was only a restricted part of the recording. In your example, you would have no access to the sample without actually buying (a licence) or being given a copy, so you would be using it legally anyway.


Fair Use can protect your use of a copyrighted work depending on what you do _with_ it, transformed or not, but "transformative" is defined by what you do _to_ the copyrighted work. [Disclaimer: I know absolutely nothing of copyright law outside the U.S.]


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## Daryl (Jan 27, 2021)

ReleaseCandidate said:


> No that's wrong. Only as soon as it's recognizable, you're in trouble in the EU. Single note/drum-hit/... samples: no problem. Longer loops: depends, better be safe than sorry.
> 
> 
> 
> ...


Sorry, only just got a chance to reply to this. It's really dangerous to think that "a court" will sort this out, so you're safe. In the UK court cases start at around £100K to defend, so whatever the theoretical position, just don't go there. It is not a good practical position to be in.


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## Daryl (Jan 27, 2021)

Polkasound said:


> Fair Use can protect your use of a copyrighted work depending on what you do _with_ it, transformed or not, but "transformative" is defined by what you do _to_ the copyrighted work. [Disclaimer: I know absolutely nothing of copyright law outside the U.S.]


Fair Use is not the same in the EU or the UK as t is in the US.


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## ReleaseCandidate (Jan 27, 2021)

Daryl said:


> Sorry, only just got a chance to reply to this. It's really dangerous to think that "a court" will sort this out, so you're safe.


That's what I'm saying. 
I've just clarified, that it _is_ legal to sample from a recording of somebody else in the EU, as long as it's not recognizable or a quote (both of which definitions are quite uncertain, so you should better rest on the safe side). The 2s of Kraftwerk that Moses P used where recognizable enough but before 2002 you could legally sample more or less everything in Germany (So the question is, if the song from 1997 has been pressed after 2002).

In german:
https://www.wbs-law.de/urheberrecht/duerfen-musiker-samplings-nutzen-bgh-fragt-nun-eugh-nach-20-jahren-streit-22653/


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## thesteelydane (Jan 27, 2021)

Well, since the only softsynths I’m interested in potentially sampling as part of creating new sounds are from U-He, I will write them and ask what I can and can not do, and update everyone here.

I’m only doing it because I don’t actually own any hardware synths (yet), and I need some basic sounds for layering with my acoustic recordings for a new product.


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## Polkasound (Jan 27, 2021)

Nils Neumann said:


> The underlying ethnics are quit complex and also interesting


I think this is an interesting point worthy of discussion, because I'm sure that there are instrument manufacturers out there who do not want to see their instruments end up in sample libraries.

Imagine an independent instrument manufacturer creates a limited edition of five Fidwhackadoodles. Then someone borrows one from a friend, samples it, makes the sounds of the instrument available to the world for $20, and earns several thousand dollars in sales of which the manufacturer gets $0.

It's all legal, but the person who did the sampling is making his money on the unique sound crafted by the manufacturer, and people will have differing opinions on how ethical it is. Since there are only five Fidwhackadoodles in the world, should the person doing the sampling ask for permission? Should he offer to negotiate a cut of sales to the manufacturer? What if there were 1,000 Fidwhckadoodles in existence? 10,000? Does any of this change the ethics?

Good topic for conversation.


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## doctoremmet (Jan 27, 2021)

But what about that factory worker who made the Hitmaker? 






The Hitmaker - Wikipedia







en.m.wikipedia.org





“The New Musical Express reports that at one time an estimate of the value of the music played through the instrument was $2 billion.”


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## Mike Greene (Jan 27, 2021)

ReleaseCandidate said:


> No that's wrong. Only as soon as it's recognizable, you're in trouble in the EU. Single note/drum-hit/... samples: no problem. Longer loops: depends, better be safe than sorry.
> 
> 
> 
> ...


I would take some comfort in that (and similar U.S. cases) if I were producing records. (And I did, back when I was producing hip hop records.) Those rulings contend that art shouldn't be stifled for sake of nit-picky (as opposed to substantial) copyright "violations." Good rulings IMO, because otherwise, entire genres of music could never have been created.

The sample library business is a completely different game, though, since it's harder to claim we're creating "art." Mangling samples for our own music, sure. But mangling samples to sell to _other_ people as tools for _their_ art, when if they're truly creative artists, they should be doing those manglings themselves ... I don't think so. So I wouldn't rely on these cases for protection.

Even if I'm wrong, consider this: Years ago, BT was sued by someone claiming he used their samples in a beats collection he was selling. ("Breaks from the Nuskool.") BT won that case, but not before he spent a fortune on lawyers. The moral of the story being that you need to not only be right, but you want to be *_so*_ copyright-safe that people won't even challenge you, because as Daryl said (and as I can confirm), it costs $100k+ just to get started in a copyright case.


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## JEPA (Jan 27, 2021)

Mike Greene said:


> The moral of the story being that you need to not only be right, but you want to be *_so*_ copyright-safe that people won't even challenge you, ...


For me these are final words to keep in mind!


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## AnhrithmonGelasma (Jan 27, 2021)

Can the EULA supersede exceptions to copyright law, for example if there's a clause prohibiting redistribution in sample library form even if transformed beyond recognition? Or do "fair use" or similar principles take precedence over the EULA?


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## Big Tick (Jan 27, 2021)

Nils Neumann said:


> Just to entertain the thought.
> 
> Developers of soft synths also put hundreds of hours into making their product. Same goes for a Luthier who builds your Viola.
> 
> ...


We are pissed. That didn't prevent BestService from doing it, though.

Their Titan2 plugin (https://www.bestservice.com/titan_2.html) is proudly sampled from various softsynths, including my own. 

To add insult to the injury, they renamed the sources in a jokingly manner. Razur = Razor, Sylence = Sylenth, ..

The day they released that product was the day I lost all respect for that company.


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## peladio (Jan 27, 2021)

Nils Neumann said:


> Just to entertain the thought.
> 
> Developers of soft synths also put hundreds of hours into making their product. Same goes for a Luthier who builds your Viola.
> 
> ...


So by that logic sample vendors should build their own instruments and program their synths to sample them? This forum wouldn't exist in that case..because sample library industry wouldn't exist. I think that soft synth samples are very common in commercial libraries..you can't copyright artifically generated sounds..you just can't use presets by other people

So..sampling samples (sound recordings) is not permitted while artifically and acoustically generated sound is absolutely fine..

Here's an old but gold post that clears it up









KVR Forum: Legality of distributing sampled synths - Page 3 - Samplers, Sampling & Sample Libraries Forum


KVR Audio Forum - Legality of distributing sampled synths - Page 3 - Samplers, Sampling & Sample Libraries Forum




www.kvraudio.com





What's interesting that one could theoretically sample stuff like Pianoteq since it's entirely artifically generated if I'm not wrong..


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## Big Tick (Jan 27, 2021)

Because you legally can do something doesn't mean it is ethical. 
Sampling presets from softsynths and putting them together in a sample-playback library is just... cheap.


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## Nils Neumann (Jan 28, 2021)

Do sample libraries lose their copyright and become public domain like compositions when they are a 100 years old?


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## doctoremmet (Jan 28, 2021)

Nils Neumann said:


> Do sample libraries lose their copyright and become public domain like compositions when they are a 100 years old?


.... seriously ponders cryosleep options....


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## Daryl (Jan 28, 2021)

Nils Neumann said:


> Do sample libraries lose their copyright and become public domain like compositions when they are a 100 years old?


I think audio recordings is 50 years from the date of recording, but I may be wrong about that. Can't be bothered to check...!


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## Gerbil (Jan 28, 2021)

Big Tick said:


> Because you legally can do something doesn't mean it is ethical.
> Sampling presets from softsynths and putting them together in a sample-playback library is just... cheap.


So they sampled the actual presets from your synth rather than use the engine to create new sounds? Yeah I can see how that would annoy you.


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## rrichard63 (Jan 28, 2021)

Big Tick said:


> Sampling presets from softsynths and putting them together in a sample-playback library is just... cheap.


That's not at all what @thesteelydane is planning to do.


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## thesteelydane (Jan 28, 2021)

Big Tick said:


> We are pissed. That didn't prevent BestService from doing it, though.
> 
> Their Titan2 plugin (https://www.bestservice.com/titan_2.html) is proudly sampled from various softsynths, including my own.
> 
> ...





Big Tick said:


> Because you legally can do something doesn't mean it is ethical.
> Sampling presets from softsynths and putting them together in a sample-playback library is just... cheap.


Sampling presets it's not at all what I'm planning to do though. The synth sounds would only be a small part of the finished sample. What I'm after finding out is how much a soft synth is considered to be like a hardware synth: A musical instrument, that you can do whatever you want with, including sampling it.

I wish I had a collection of vintage synths to play with, and I would buy one if I could. Unfortunately I live in Vietnam, where none are available, and imported used electronics are seized at customs and destroyed. Whether you get your package is really down to the mood of the customs officer who processes your package, so buying stuff from eBay is impossible. The only stuff I can get here is a small selection of modern hardware synths and all the Behringer clones. This is why soft synths are so appealing to me.


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## doctoremmet (Jan 28, 2021)

thesteelydane said:


> Sampling presets it's not at all what I'm planning to do though. The synth sounds would only be a small part of the finished sample. What I'm after finding out is how much a soft synth is considered to be like a hardware synth: A musical instrument, that you can do whatever you want with, including sampling it.
> 
> I wish I had a collection of vintage synths to play with, and I would buy one if I could. Unfortunately I live in Vietnam, where none are available, and imported used electronics are seized at customs and destroyed. Whether you get your package is really down to the mood of the customs officer who processes your package, so buying stuff from eBay is impossible. The only stuff I can get here is a small selection of modern hardware synths and all the Behringer clones. This is why soft synths are so appealing to me.


I bet there are some smaller developers you could just reach out to, who are feeling you and would grant their permission to use a part of their work for a completely original Bunker Samples creation. People like Brian Clevinger of Rhizomatic, the guy that does the Aalto and Kaivo synths, Randy of Madrona Labs. My gut tells me they’d love what you’re doing and your next plans... Also the Cherry Audio guys, the Unfiltered Audio guys (Hetrick) and @[email protected]


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## Mike Greene (Jan 28, 2021)

thesteelydane said:


> What I'm after finding out is how much a soft synth is considered to be like a hardware synth: A musical instrument, that you can do whatever you want with, including sampling it.


I wouldn't worry about it. In fact, a lot of samples in Hip Hop Creator are from soft synths. As long as there are no underlying samples, you're fine, especially since you're not just sampling presets.


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## Polkasound (Jan 28, 2021)

Mike Greene said:


> The moral of the story being that you need to not only be right, but you want to be *_so*_ copyright-safe that people won't even challenge you


This is a key point in regard to Fair Use. It common for some people to think of Fair Use as an automatic umbrella of protection from a lawsuit. While it does offer some protection in that it decreases the odds of being sued in certain circumstances, Fair Use is really just a defense that can be used to help win a very financially-draining lawsuit.

When I released my parody of a classic Boston rock song last year, I could have released it for free and it probably would have fallen under Fair Use, but I went the proper route of getting permission and licensing terms from Tom Scholz and Universal Music Group. Even though it would be oddly satisfying spending thousands of dollars to win a music copyright infringement lawsuit, I'd much rather spend my money on virtual instruments.



thesteelydane said:


> imported used electronics are seized at customs and destroyed.


Yeah, I'm sure they're destroyed. This is what I imagine Christmas is like for Vietnamese kids whose parents work in customs: "Gee, it's _another_ box of a hundred MP3 players. Um, thanks."


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## Big Tick (Jan 28, 2021)

doctoremmet said:


> I bet there are some smaller developers you could just reach out to, who are feeling you and would grant their permission to use a part of their work for a completely original Bunker Samples creation. People like Brian Clevinger of Rhizomatic, the guy that does the Aalto and Kaivo synths, Randy of Madrona Labs. My gut tells me they’d love what you’re doing and your next plans... Also the Cherry Audio guys, the Unfiltered Audio guys (Hetrick) and @[email protected]



Absolutely. There's a big difference between helping another indie developer, and getting taken advantage of by a big name company.

As a matter of fact I'll even give you a license for Rhino (I can't do the 2getheraudio stuff because it's not just me, but it's very affordable anyway), and allow you to use presets if you mention so. Just PM me.


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## doctoremmet (Jan 28, 2021)

Big Tick said:


> Absolutely. There's a big difference between helping another indie developer, and getting taken advantage of by a big name company.
> 
> As a matter of fact I'll even give you a license for Rhino (I can't do the 2getheraudio stuff because it's not just me, but it's very affordable anyway), and allow you to use presets if you mention so. Just PM me.


Ah wait a minute, you’re the Opzilla “guy”. I bought it the other day. Very nicely laid out FM synth! Did Bestservice sample that one?


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## Big Tick (Jan 28, 2021)

doctoremmet said:


> Ah wait a minute, you’re the Opzilla “guy”. I bought it the other day. Very nicely laid out FM synth! Did Bestservice sample that one?


No, the BestService thing was more than 10 years ago.


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## thesteelydane (Jan 30, 2021)

Big Tick said:


> As a matter of fact I'll even give you a license for Rhino (I can't do the 2getheraudio stuff because it's not just me, but it's very affordable anyway), and allow you to use presets if you mention so. Just PM me.


Are you referring to me? If so, I genuinely appreciate the offer, but as a small developer I like to support other small developers, so I would prefer to pay for my license. And with your permission use it in a future sample library - I will not sample presets, and the sound will be blended with acoustic recordings - I just need a synth to add some weight and grit to my recordings.


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## Nils Neumann (Jan 30, 2021)

thesteelydane said:


> Are you referring to me? If so, I genuinely appreciate the offer, but as a small developer I like to support other small developers, so I would prefer to pay for my license. And with your permission use it in a future sample library - I will not sample presets, and the sound will be blended with acoustic recordings - I just need a synth to add some weight and grit to my recordings.


Really adore your approach to this! Kudos to that!


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## Wally Garten (Jan 30, 2021)

Daryl said:


> There is no such thing. If you are using a recording that you don't own, you are breaching copyright.


That's not correct. From the U.S. Copyright Office:

Additionally, “transformative” uses are more likely to be considered fair. Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work.​





More Information on Fair Use | U.S. Copyright Office







www.copyright.gov





And here's the Supreme Court in _Campbell v. Acuff-Rose Music_:

The first factor in a fair use enquiry is "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes." § 107(1). This factor draws on Justice Story's formulation, "the nature and objects of the selections made." _Folsom_ v. _Marsh_, 9 F. Cas., at 348. The enquiry here may be guided by the examples given in the preamble to § 107, looking to whether the use is for criticism, or comment, or news reporting, and the like, see § 107. The central purpose of this investigation is to see, in Justice Story's words, whether the new workmerely "supersede the objects" of the original creation, Folsom v. Marsh, supra, at 348; accord, Harper & Row, supra, at 562 ("supplanting" the original), or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is "transformative." Leval 1111. Although such transformative use is not absolutely necessary for a finding of fair use, Sony, supra, at 455, n. 40, [n.11] the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works thus lie at the heart of the fair use doctrine's guarantee of breathing space within the confines of copyright, see, e. g., Sony, supra, at 478-480 (Blackmun, J., dissenting), and the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.​

It's definitely risky, which is why many IP lawyers state things in the absolutist terms you did -- they're a risk-averse bunch. And a little EQ and reverb on a sample library probably won't do it. But it's just wrong to say "there's no such thing" as transformative use.


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## Big Tick (Jan 30, 2021)

thesteelydane said:


> Are you referring to me? If so, I genuinely appreciate the offer, but as a small developer I like to support other small developers, so I would prefer to pay for my license. And with your permission use it in a future sample library - I will not sample presets, and the sound will be blended with acoustic recordings - I just need a synth to add some weight and grit to my recordings.


I was referring to you. Your call, my offer still stands


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## thesteelydane (Jan 30, 2021)

Polkasound said:


> Yeah, I'm sure they're destroyed. This is what I imagine Christmas is like for Vietnamese kids whose parents work in customs: "Gee, it's _another_ box of a hundred MP3 players. Um, thanks."


You're partially right...I know people who tried to send a laptop from home, and it was destroyed in front of them when they refused to pay the exorbitant bribe. Not sure how a vintage synth would fare....


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## Wally Garten (Jan 30, 2021)

Daryl said:


> US Copyright law is only relevant to the US, and is not in the slightest bit relevant to using a recording which you have no rights to use.


I mean... it's relevant to both copyright holders in the U.S. and artists who would like to use copyrighted material in the U.S. If you have actual information or citations about EU or UK copyright law, that would certainly contribute to the discussion. But citation-free assertions that U.S. _copyright law_ is not relevant to a discussion of copyright law is, you know... less helpful.


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## Bman70 (Jan 30, 2021)

Big Tick said:


> Absolutely. There's a big difference between helping another indie developer, and getting taken advantage of by a big name company.
> 
> As a matter of fact I'll even give you a license for Rhino (I can't do the 2getheraudio stuff because it's not just me, but it's very affordable anyway), and allow you to use presets if you mention so. Just PM me.


Just from curiosity, how did you find out your synth was sampled (i.e., recorded) and not emulated? Their description mentions emulations of other synths... which is using their own synth's oscillators etc. to rebuild how they thought you did the sound, from scratch?


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## thesteelydane (Jan 30, 2021)

Big Tick said:


> I was referring to you. Your call, my offer still stands


I'm humbled by your offer, but I insist...I just bought Rhino, looking forward to learning it!


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## purple (Jan 30, 2021)

What makes a software sine wave different from an analog sine wave?


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## Bman70 (Jan 30, 2021)

If I understand the question correctly, you're wondering if just because a synth is software based, there are restrictions on selling sounds you create using it? I think the issue isn't hardware vs software, but whether you're using _presets _as your starting point, or starting with nothing but an init blank slate and building from there. Presets someone else designed shouldn't be the starting point. However, if you want to sell preset packs, that's a great option where you can tweak presets and sell them to people who already own the software. Because then you're just selling your time helping them use their software.


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## Big Tick (Jan 30, 2021)

purple said:


> What makes a software sine wave different from an analog sine wave?


Not much by themselves, but once you start adding things like FM modulation, even minute differences in the interpolation algorithms, approximations, ... yield different results.


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## Big Tick (Jan 30, 2021)

Bman70 said:


> Just from curiosity, how did you find out your synth was sampled (i.e., recorded) and not emulated? Their description mentions emulations of other synths... which is using their own synth's oscillators etc. to rebuild how they thought you did the sound, from scratch?


That was ages ago, but I think I recognized some preset names. I didn't look into it any further, as I have better things to do with my time than getting involved with lawyers. I just wrote off that company of "not worth doing business with".


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## thesteelydane (Jan 30, 2021)

purple said:


> What makes a software sine wave different from an analog sine wave?


I would guess the analog is less "perfect"? Apart from that you could argue when you buy a hardware synth you buy the actual components making the sine wave, whereas when you buy a soft synth you buy an algorithm making the sine wave - and that algorithm is the intellectual property of the people who wrote it?

Just playing devll's advocate here, arguing against my own best interest. I just want every stone turned on this issue, so that I can proceed or abandon my project with absolute confidence that I'm doing the right thing.


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## Wally Garten (Jan 30, 2021)

Big Tick said:


> We are pissed. That didn't prevent BestService from doing it, though.
> 
> Their Titan2 plugin (https://www.bestservice.com/titan_2.html) is proudly sampled from various softsynths, including my own.
> 
> ...


This is a really interesting perspective, and I'm glad I'm reading this thread. I had actually been considering making a sample library of designed sounds using things like physical-modeling software. Legalities aside, would you consider _all_ sample libraries that sample your soft-synth in some way to be unethical, or just the ones, like Titan, that are obviously trying to be a market substitute? For example, if someone released a pack of robot sounds that used, among other things, sounds made with your soft-synth, would that bother you? I ask because I respect your position, but the flip side of this is that it seems profoundly inefficient for sound designers to have to design their own tools in order to avoid tangling with/pissing off synth designers. 

Also, does it change your mind at all if the library is just a freebie for the community?


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## purple (Jan 30, 2021)

thesteelydane said:


> I would guess the analog is less "perfect"? Apart from that you could argue when you buy a hardware synth you buy the actual components making the sine wave, whereas when you buy a soft synth you buy an algorithm making the sine wave - and that algorithm is the intellectual property of the people who wrote it?


Is not the design of an analog synth also property of their creator? Why is software different here?


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## Big Tick (Jan 30, 2021)

Wally Garten said:


> This is a really interesting perspective, and I'm glad I'm reading this thread. I had actually been considering making a sample library of designed sounds using things like physical-modeling software. Legalities aside, would you consider _all_ sample libraries that sample your soft-synth in some way to be unethical, or just the ones, like Titan, that are obviously trying to be a market substitute? For example, if someone released a pack of robot sounds that used, among other things, sounds made with your soft-synth, would that bother you? I ask because I respect your position, but the flip side of this is that it seems profoundly inefficient for sound designers to have to design their own tools in order to avoid tangling with/pissing off synth designers.
> 
> Also, does it change your mind at all if the library is just a freebie for the community?


If it is sounds designed from scratch with my synth I have no problems whatsoever, I even encourage it.
If they take presets, sample them, and package them in a library... as I said, it might be legal, but I don't think it's ethical. I did pay a sound designer to make these presets in the first place.


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## Wally Garten (Jan 30, 2021)

Big Tick said:


> If it is sounds designed from scratch with my synth I have no problems whatsoever, I even encourage it.
> If they take presets, sample them, and package them in a library... as I said, it might be legal, but I don't think it's ethical. I did pay a sound designer to make these presets in the first place.


Ohhhh, I see! That makes total sense. Thanks!


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## thesteelydane (Jan 30, 2021)

purple said:


> Is not the design of an analog synth also property of their creator? Why is software different here?


Fair point, but compare it to traditional instruments: Violin makers to this day are ripping off the design of Stradivarius and Amati, because they discovered a set of proportions, age of wood, varnish etc... that just worked. We wouldn't have the history of synths, or any instruments for that matter, if each generation didn't stand on the shoulders of the previous.

No one can claim to own a copyright on the violin. Synths have been around long enough that they are getting into that territory too, I think.

And finally, sampling a synth is not the same as sampling it's design. What you're describing is ripping of code, which is obviously unethical. I'm interested in who owns the sounds the code makes, once you pay for the code.

EDIT: You're absolutely right, but that's not at all what we're talking about here. You're talking about the intellectual property of the designer, and I'm talking about the end user license agreement. Two completely different things.


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## purple (Jan 30, 2021)

thesteelydane said:


> Fair point, but compare it to traditional instruments: Violin makers to this day are ripping off the design of Stradivarius and Amati, because they discovered a set of proportions, age of wood, varnish etc... that just worked. We wouldn't have the history of synths, or any instruments for that matter, if each generation didn't stand on the shoulders of the previous.
> 
> No one can claim to own a copyright on the violin. Synths have been around long enough that they are getting into that territory too, I think.
> 
> ...


My thinking here is that a soft synth isn't using samples (unless that's what kind of synth it is), so you're not recording something that the people who coded it created. You're buying a tool and anything you create with that tool is your property like it would be with a hardware synth. So I don't see how it could legally be any different than sampling a hard synth. Both are simply tools.


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## DivingInSpace (Jan 31, 2021)

Big Tick said:


> If it is sounds designed from scratch with my synth I have no problems whatsoever, I even encourage it.
> If they take presets, sample them, and package them in a library... as I said, it might be legal, but I don't think it's ethical. I did pay a sound designer to make these presets in the first place.


I am glad you clarified this, as i was a bit puzzled by your reaction. I totally understand that sampling presets included with the synth is a shitty way to do it. I'd almost call it stealing to be honest, and can't imagine that it is legal. 
But i would have a really hard time seeing the problem with library developers doing patches from scratch and the sampling those, so it is nice to see that that wasn't your point.
I am currently working on a sample library like this, where i used Kilohearts Phase plant to generate a bunch of glitches, that i will hopefully arrange into a sample library and am currently mangling into loops that will be included too. As i made the preset used for generating these, it never occurred to me that the developer could have a problem with this.

Now, after reading through this thread, i will obviously be contacting them before releasing anything, to make sure that i am not stepping over their boundaries.


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## Bman70 (Jan 31, 2021)

It helps if you think about why you bought the plugin: Obviously, to be able to use the sounds it makes in your music. If you record those sounds in loops, and sell them to other musicians, you're essentially giving them access to the sounds you bought, without them having to buy the plugin. Which is sort of a reseller business. Selling music for use in media, online, TV, etc. is completely different from selling to musicians.


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## thesteelydane (Jan 31, 2021)

Bman70 said:


> It helps if you think about why you bought the plugin: Obviously, to be able to use the sounds it makes in your music. If you record those sounds in loops, and sell them to other musicians, you're essentially giving them access to the sounds you bought, without them having to buy the plugin. Which is sort of a reseller business. Selling music for use in media, online, TV, etc. is completely different from selling to musicians.


That’s not what I intend to do though. My intended use is to mangle the sounds of the soft synth and layer them with other sounds, resulting in the final sample. Think along the lines of Spitfire’s new CDT library. They sampled a Juno 6 and a Korg ms20 and processed the sounds - what I want to know is if I can do the same with the soft synths I own.

Sampling has always been a sort of reselling. When you buy a violin sample library, it saves you having to buy a violin, learning to play it, investing in recording equipment etc....or at the very least, it saves you having to pay a real musician, which is the part of this whole sampling thing that I dislike the most, and why I’m mostly interested in creating sampled instruments that go beyond simply re-creating real instruments.


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## Bman70 (Jan 31, 2021)

thesteelydane said:


> That’s not what I intend to do though. My intended use is to mangle the sounds of the soft synth and layer them with other sounds, resulting in the final sample. Think along the lines of Spitfire’s new CDT library. They sampled a Juno 6 and a Korg ms20 and processed the sounds - what I want to know is if I can do the same with the soft synths I own.
> 
> Sampling has always been a sort of reselling. When you buy a violin sample library, it saves you having to buy a violin, learning to play it, investing in recording equipment etc....or at the very least, it saves you having to pay a real musician, which is the part of this whole sampling thing that I dislike the most, and why I’m mostly interested in creating sampled instruments that go beyond simply re-creating real instruments.


Yes my comment was more directed to the comment above it, not to your usage specifically, which sounds legit and legal... as long as you're starting with the bare init and synth module components and not other designers' presets. 

Sampling a violin, to me, is great because everyone got paid: The violin player for the recording session; the sound designer for making patches out of it; and the library developer for selling the library.


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## DivingInSpace (Jan 31, 2021)

Bman70 said:


> Yes my comment was more directed to the comment above it, not to your usage specifically, which sounds legit and legal... as long as you're starting with the bare init and synth module components and not other designers' presets.


Referring to my comment? Because i was also talking about a preset i personally made from scratch, and the loops are not just me playing the preset/playing their presets. It is me chopping up the glitchy sounds i made (from scratch/init) with the synth, gluing them together and processing them, mangling them even more and making "drum" like beats with them.


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## Bman70 (Jan 31, 2021)

Personally, I think if you start with a nice sounding preset, and tweak it until it's unrecognizable, coming up with your own sound in the end, it's hard to see why that wouldn't be beneficial to art / music as a whole... or how it could be interpreted as disadvantaging any sound designer. I would rather have those creative colors exist, than be deleted because someone thought it wasn't legal.

Of course, you were still inspired by that person's sound design. It helped you get a starting point to make your own sound. Does that merit a credit or acknowledgement? I guess it depends on how much it helped, to have those filters and oscillators already set up to get that sound.


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## Bman70 (Jan 31, 2021)

DivingInSpace said:


> Referring to my comment? Because i was also talking about a preset i personally made from scratch, and the loops are not just me playing the preset/playing their presets. It is me chopping up the glitchy sounds i made (from scratch/init) with the synth, gluing them together and processing them, mangling them even more and making "drum" like beats with them.


I don't know enough detail to really think one way or the other about your case, so I was just adding food for thought.  I don't know what Kilohearts Phase Plant does.. but it sounds like you're recording glitches made using the plugin? To sell as loops? 

Interesting case, because is a glitch plugin a preset? Or does it generate unique glitches each time from an algorithm? If you sell a glitchy piano loop to a musician... and without that loop, the musician would have had to buy Kilohearts Phase Plant, to get that sound.. I'm not sure where that falls with regard to EULA.


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## DivingInSpace (Jan 31, 2021)

Bman70 said:


> I don't know enough detail to really think one way or the other about your case, so I was just adding food for thought.  I don't know what Kilohearts Phase Plant does.. but it sounds like you're recording glitches made using the plugin? To sell as loops?
> 
> Interesting case, because is a glitch plugin a preset? Or does it generate unique glitches each time from an algorithm? If you sell a glitchy piano loop to a musician... and without that loop, the musician would have had to buy Kilohearts Phase Plant, to get that sound.. I'm not sure where that falls with regard to EULA.


It is a synthesizer, the sounds are coming from a preset i made. They just sound "glitch" like. I think you were just misunderstanding what i was writing


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## Big Tick (Jan 31, 2021)

If you made the preset yourself it is absolutely fine.


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## vitocorleone123 (Jan 31, 2021)

Seems like some best practice tips so far include

1) NEVER sample something with samples somebody else sampled
2) If possible, get written permission from the creator of the instrument before sampling
3) Create your own sounds from scratch (probably the init/default is ok to start from?)
4) Be respectful and give credit despite having permission


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## Hunter123 (Jan 31, 2021)

What about making and selling a sample pack where you've recorded your own chord progression and melodies from a sampled based virtual instrument (for example Addictive Keys or Omnisphere sample based patches). Is this legally alright?


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## DivingInSpace (Feb 1, 2021)

Hunter123 said:


> What about making and selling a sample pack where you've recorded your own chord progression and melodies from a sampled based virtual instrument (for example Addictive Keys or Omnisphere sample based patches). Is this legally alright?


No, this one is definitely a no go. As everyone has been saying, as soon as it involves a sample that isn't yours, you are not allowed to sell a product using it.


Big Tick said:


> If you made the preset yourself it is absolutely fine.


Yeah, i was just clarifying for Bman70


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## Hunter123 (Feb 1, 2021)

DivingInSpace said:


> No, this one is definitely a no go. As everyone has been saying, as soon as it involves a sample that isn't yours, you are not allowed to sell a product using it.
> 
> Yeah, i was just clarifying for Bman70


The reason why a specifically asked this was because I've noticed lots of producers doing exactly this. For example check out this fairly recent video by a producer on how he makes his sample packs to sell.




I believe I've seen a lot of producers doing this (mostly beat making producers) and it's crazy that they're showing everyone how to do something that is completely illegal, unless I'm missing something?


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## DivingInSpace (Feb 1, 2021)

Hunter123 said:


> The reason why a specifically asked this was because I've noticed lots of producers doing exactly this. For example check out this fairly recent video by a producer on how he makes his sample packs to sell.
> 
> 
> 
> ...



I'd definitely say this is sketchy at best, and straight up illegal at worst. But i am not a lawyer so i might be wrong, but this clearly conflicts with most points that has been made in this thread imo. Would love to hear other people chip in on this.


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## Bman70 (Feb 1, 2021)

Yeah that's on the shady side. His website lists the samples / loops as "completely original compositions ready to be chopped up and looped." So maybe he's going with the angle it's a piece of music, not a sample. But, he's even selling the stems of each track.

Still, he is writing multitrack unique clips, which is the closest he gets to a loophole (pun?). If sold to a library like Audiojungle, that would be 100% legal, "stingers" or "bumpers," which are often only seconds long. The end user for clips like that is (supposedly) not musicians chopping it up for loops. It's for media and corporate companies. Of course AJ can't know that no one is sampling and looping.


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## thesteelydane (Feb 1, 2021)

So I just heard back from U-He, who gave me the go-ahead as long as the sounds are entirely my own creation and not based on their or 3rd party presets.

As I expected they mentioned the wave tables in Hive, which are audio recordings, but again very graciously allowed me to use them as long as I don’t sample them “raw” but as a creative part of my sound design process.

What a cool company!

So all good to go. I still want a hardware synth though...


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## Polkasound (Feb 1, 2021)

Hunter123 said:


> I believe I've seen a lot of producers doing this (mostly beat making producers) and it's crazy that they're showing everyone how to do something that is completely illegal, unless I'm missing something?


I wouldn't go so far as to deem what he does "illegal" but he does appear to be both toeing and crossing the line of breaking some EULAs. In my honest opinion, though, he's not doing it intentionally -- he's doing it ignorantly. Beatmaking is such a massive part of the music industry today, the idea that a library's EULA might prohibit its use for making loops never crosses a beatmaker's mind.


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## Hunter123 (Feb 1, 2021)

Polkasound said:


> I wouldn't go so far as to deem what he does "illegal" but he does appear to be both toeing and crossing the line of breaking some EULAs. In my honest opinion, though, he's not doing it intentionally -- he's doing it ignorantly. Beatmaking is such a massive part of the music industry today, the idea that a library's EULA might prohibit its use for making loops never crosses a beatmaker's mind.


I agree with this. Also, I probably shouldn't have worded it so definitively like that as being "illegal". I think this is actually pretty common among beat maker's selling sample packs.


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