Monday, October 15, 2012

He Wants to Use B-Horror Movie Samples

Dear Rich: I have two questions but if you guys are too busy then I think the first one is the most important. I'm recording an EP with my band and we've been considering the idea of using audio samples from maybe a few horror B-movies. I've tried searching the blog for a similar question but no luck so far. I've heard that maybe a few seconds doesn't count as infringement? Our other concern is: A few months ago we found a picture which is basically a scene from a very popular movie. We edited a lot and placed the band name on top of it and then joked about making a limited run of T-shirts with that image on it. Turns out people did like them and asked if we were going to make them. Some say that since we edited the image that we now own that image, but It doesn't really reassure us that much. Would we get in trouble if we sold a few or even give them away? The blog already has helped us a lot and I'm thinking of buying your Music Law book on Amazon. Hmm... You're thinking of buying our Music Law book? Is that a passive-aggressive incentive? Will we close the sale by answering? (Or perhaps if we do answer, will you be less likely to buy?)
Right, you had two questions. It is infringement to copy audio samples from B-movies. Taking a few seconds may qualify as a fair use -- though keep in mind that at least one court has (perhaps illogically) held that taking any audio sample (regardless of its size) violates the sound recording copyright. You're okay to use the samples if the film is in the public domain. (Note, even in public domain films, composers have claimed separate musical copyright.) You may be able to defend your activities depending on the fair use factors. But as we always point out, you can only "win" a fair use argument if you're prepared to fight it in court. Considering the vast amount of unchecked sampling, we think the bigger issue is whether the owner of the B-movie rights will ever learn of your use, or will care if they find it.
Using the movie picture on a t-shirt. If you edited the image you can stop others from using your modifications. But you don't "own" the image. You only own what you added. The owner of the underlying copyright can still stop your derivative use. We don't know if you would get it trouble for using the image -- BTW, it wouldn't make any difference whether you sold them or gave them away for free. Again, that's a matter of anticipating the likelihood that the film's copyright owner would spot your use and care. Our guess is that you'll fly below the radar. (We answered a related question in a previous entry.)

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