Any lawyers familiar w/copywright protection?

[the kabuki]

Lawyers (or anyone else really) familiar with copywright protection? If a person's website has free sounds on it (speaking of small audio files such as "Werewolf howling", "Bats Flying" or "Glass Breaking" for halloween) and someone uses parts of those sounds, mixes them onto a CD and then sells said CD for profit, would that be illegal? Does copywright protection extend to "sounds"? Would it be considered stealing if the sounds were posted on-line as free to download?

Said website states:These Sounds Are Free, But Please Do Not Link Directly To The Sound Files! Either Right Click And "Save As" On PC, Or Transload On Webtv!

If a person were to mix these sounds in an original way (sounds currently available individually), then wouldn't that be unique, hence original?

DH and I were discussing this since I'm creating a Halloween CD for our haunt and both of us were curious as to the answer. Ran straight to the DIS with it of course.

 

[Kermit]

I'm not a lawyer, but I am a writer, and that would violate copyright laws. Sounds are protected (hence the whole Napster debate several years ago). You can't just mix up someone else's sounds; you have to create your own. You can, of course, email the owner of the site and see if it would be okay for you to do what you want to do.

BTW, the warning on the site about not linking isn't really because the owner is protecting his intelectual property. It's about bandwidth and not wanting people using his web space through other sites.

 

[the kabuki]

Like I said, DH & I were talking about this. He said "boy you should sell those" and the conversation went from there. I completely understand about the whole filesharing thing, but the part that had me stumped was the sounds. I mean, who owns a bat flapping his wings sound? That's where I couldn't answer him. Guess someone had to make up that sound, so it's protected?

What about when you hear songs on the radio that "borrow" snippets of other songs? Many rap songs will do this. I'll hear a snippet of a Beastie Boys' song in some rap song, does this mean they had to get permission to use that snippet? I thought I remember hearing somewhere that the portion of the song had to be a certain length before they had to pay the original artist?

It's all hypothetical anyways, not planning on mass marketing halloween cd's , just curious on a saturday night.

 

[bicker]

We traveled to Egypt with a fabric designer. He was there, sure, for the trip, but also to take photos of patterns and other unique visual elements. There are literally thousands of photos of each of these elements available, but he had to take his own photos, to establish ownership of the image he was going to use in his work. Copyrighted visual images like this are just like copyrighted sounds.

However, if there is no copyright notice, and instead a notice that the sounds are "free", I don't see the issue. The warning on that web site is a warning against deep linking -- the person is trying to ensure that s/he doesn't incur the cost of online bandwidth of you using the sounds anywhere but on his/her site. That's it. I don't see any indication there that the sounds themselves aren't provided into the public domain. Is there more to the terms and conditions of the use of that web site that you've outlined?

 

[ducklite]

I'm a photographer. I'm very generous, allowing people to use my work for class projects--even sending them the original hi-res images, for their computer desktops, and to use in their online signatures.

I had a similar issue as what you are proposing. Someone e-mailed me, asking if they could use several of my photo's for a project they were working on, a screensaver, that was for their own use. I agreed.

Then about a month later, someone e-mailed me to tell me this person was selling the screensaver they had created with my photo's. I had my lawyer send them a cease and desist letter, and then required them to pay me royalties on the screensavers they had sold. In the long run they lost money because standard royalty fees were higher than their profits, and they had to hire a lawyer on top of it. (Mine is a friend who I barter with so my out of pocket was zero) Basically we settled by them just giving me every penny they had gotten in sales. I could have gotten a lot more, but it wasn't worth fighting, the point was made.

I, as well as most artists, are rightfully fiercely protective of their property. I spent years developing my talent and contact list (that's the highest value in my business!), and not to mention thousands of dollars on equipment, and will not allow another person to profit from my hard work.

Anne

 

[Geoff_M]

Lawyers (or anyone else really) familiar with copywright protection? If a person's website has free sounds on it (speaking of small audio files such as "Werewolf howling", "Bats Flying" or "Glass Breaking" for halloween) and someone uses parts of those sounds, mixes them onto a CD and then sells said CD for profit, would that be illegal? Does copywright protection extend to "sounds"? Would it be considered stealing if the sounds were posted on-line as free to download?

I'm not a lawyer, but am familiar with copyright law (also through my photography).

1) Giving something away does not nullify someone's copyright protection. If I give away some of my photos as a goodwill gesture, that doesn't mean I've abandoned my ownership of the image. If someone scans one of those photos and starts selling copies on eBay, I can shut them down. Even though I gave them a copy, I still own the legal rights to commerically exploit my image.

2) Any sound recording, regardless of whether it's music, a sports broadcast, or merely "sounds", is a copyrightable work.

3) "Derivative" works (works that incorporate part of another work) are not considered "new" works. A rights holder may take action against someone who takes their copyrighted work and alters or using part of it in another work. As an example, there have been rap artists who have seen successfully sued when they've included "sampled" versions of other people's sound recordings into their songs.

4) Per US law, some thing is considered "copyrighted" when it's created. No special warning has to be attached to the work. HOWEVER, if you wish to seek damages against someone who has violated your right, you must first register the work with the US Copyright Office. This requires a simple form, a copy of the work, and a $30 fee. http://www.copyright.gov/register/sound.html There is also a time limit in which you must register your work after you've discovered the violation in order to seek damages.

The bottom line, if someone takes "free" sounds of of a web site, repackages them for commercial sale, and the creator of the original sounds can show that they were the originator of the recordings, then legal action can be taken against the second person selling the derivative work.

 

[bicker]

Just to be clear, while all of what Geoff says is true, IP owners can abrogate their ownership interest. A reasonable person can assume that if something is labeled as "free," with no rights reserved, then the IP owner is not asserting their ownership interest. Indeed, there are other ways a IP owner can lose their ownership interest, such as by failing to vigorously defending those rights, when violations are brought to the IP owner's attention. (That's why Disney has to prosecute day care centers who paint Disney characters on their walls -- if they don't, they run the risk of being unable to defend their ownership interest in a suit against some other abuser of the IP.)

 

[Geoff_M]

A reasonable person can assume that if something is "free," with no rights reserved, then the IP owner is not asserting their ownership interest. Indeed, there are other ways a IP owner can lose their ownership interest, such as by failing to vigorously defending those rights, when violations are brought to the IP owner's attention.

bicker, This is another misconception about copyright law. People sometimes confuse copyright law with trademark or trade secret laws. With those laws failure to take reasonable measures can result in loss of protection. However, that doesn't apply to copyrighted works:

"If you don't defend your copyright you lose it." -- "Somebody has that name copyrighted!"

False. Copyright is effectively never lost these days, unless explicitly given away. You also can't "copyright a name" or anything short like that, such as almost all titles. You may be thinking of trade marks, which apply to names, and can be weakened or lost if not defended.

You generally trademark terms by using them to refer to your brand of a generic type of product or service. Like an "Apple" computer. Apple Computer "owns" that word applied to computers, even though it is also an ordinary word. Apple Records owns it when applied to music. Neither owns the word on its own, only in context, and owning a mark doesn't mean complete control -- see a more detailed treatise on this law for details.

You can't use somebody else's trademark in a way that would steal the value of the mark, or in a way that might make people confuse you with the real owner of the mark, or which might allow you to profit from the mark's good name. For example, if I were giving advice on music videos, I would be very wary of trying to label my works with a name like "mtv." You can use marks to critcise or parody the holder, as long as it's clear you aren't the holder.

10 Big Myths About Copyright Explained

If the "reasonable protection" notion were true, then all of the artists that allow free track downloads on places like Amazon, with no IP warnings attached, could be viewed at abandoning their copyrights to the works.

 

[Lisa loves Pooh]

We traveled to Egypt with a fabric designer. He was there, sure, for the trip, but also to take photos of patterns and other unique visual elements. There are literally thousands of photos of each of these elements available, but he had to take his own photos, to establish ownership of the image he was going to use in his work. Copyrighted visual images like this are just like copyrighted sounds.

However, if there is no copyright notice, and instead a notice that the sounds are "free", I don't see the issue. The warning on that web site is a warning against deep linking -- the person is trying to ensure that s/he doesn't incur the cost of online bandwidth of you using the sounds anywhere but on his/her site. That's it. I don't see any indication there that the sounds themselves aren't provided into the public domain. Is there more to the terms and conditions of the use of that web site that you've outlined?

But just b/c it is free, does not mean their is no copyright attach.

It is important to get permission to use anything you wish to profit from.

Most often, when it is free--it is free for personal use and not for profit. Just b/c the website in question wishes to share the sounds with everyone for halloween...doesn't mean he meant to give his right to them away.

 

[bicker]

bicker, This is another misconception about copyright law.

Copyright is effectively never lost these days, unless explicitly given away.

This is what I was referring to Geoff. In this case, it appears that the IP was indeed being "given away."

But just b/c it is free, does not mean their is no copyright attach.

I'm a big defender of IP, but sorry, saying it's free does sound like abrogating the copyright protection. YMMV.

 

[Geoff_M]

This is what I was referring to Geoff. In this case, it appears that the IP was indeed being "given away."

You are confusing the "giving away" of the work with the "giving away" of the copyright. One does not imply the other. Let me give you a personal example of what the author is talking about. I shot the wedding of the daughter of a friend of mine. I was paid a flat fee for the job. Unless there is a "work for hire" agreement between the bride's family and me (there was none), the images I took at the wedding belong to me in terms of their copyright. However, I don't care in this case to try and sell prints to the newlyweds... so I gave "master" CDs of the images from the wedding to them. In order to prevent the couple from having problems with local labs when it comes to them ordering prints, I've given them a letter whereby I "expressly" release my copyright of the images to them. This is what the statement above is referring to.

In summary, there's only two ways the creator of a work can lose their rights to their creations:
1) Through a "work for hire" agreement whereby the employer owns any work created during the employment of the creator.
2) The creator "expressly" grants their rights to another party in the form of a legally recognizable acknowledgement of the passing of the rights.

One can't passively lose the copyright to a work by merely posting it to a web site. I have posted wallpaper sized images of some of my photos here before and told people they are welcome to use them on their PCs. That act does not jepordize my sole right to control the future use of the image or give others the right to commercially exploit it.

 

[bicker]

In the end, neither of us have seen the context of the statement made by the IP owner, first hand. Let's check that first, and then put that up against the yardstick of reasonable interpretation.

 

[Geoff_M]

bicker, one of your assertions in this thread was that a rights holder can passively lose their copyright if they give a work away for "free" and then not "vigorously defend" any rights that they may hold. That is a legal falsehood. No "reasonable interpretation" comes into play.

If you wish to talk about what a specific works creator has to say, that's another issue.

 

[CharlesTD]

Up here it is perfectly legal to do this as ruled by the supreme court of Canada we can download music etc from sites and share files and burn them as our own without a problem.

 

[bicker]

bicker, one of your assertions in this thread was that a rights holder can passively lose their copyright if they give a work away for "free" and then not "vigorously defend" any rights that they may hold.

I'm sorry, Geoff, for the confusion. I was referring specifically to the OP's situation, where the IP owner actually labeled the IP "These Sounds Are Free". Indeed, it isn't sufficient that they "be free" -- the IP owner needs to explicitly say so, as was the case in the OP's situation.

 

[Geoff_M]

Indeed, it isn't sufficient that they "be free" -- the IP owner needs to explicitly say so, as was the case in the OP's situation.

The OP said the site's owners stated: "These Sounds Are Free, But Please Do Not Link Directly To The Sound Files! Either Right Click And "Save As" On PC, Or Transload On Webtv!"

If your position is that someone can reasonably be seen as giving up their copyright by inviting others to download a work for "free" and placing no other explicit restrictions on the use of the download, then I have an idea to make a little money. I can go to Amazon.com and download a number of the full length songs from a number of artists I like, make a compilation CD, and start selling it on eBay! If you are correct, then no legal action can be taken by the originators of the recordings since I was invited to download the songs for "free" and no restriction on my use of the song is mentioned. Therefore, the artists have given up their copyright to the recordings, correct?

bicker, again you're confusing giving a work away with giving the copyright away. Likewise, not asserting a copyright isn't the same as giving it away. If I made the CD in the above paragraph, I'd legally be shut down in a heartbeat if any of the artists objected. Whether the artists would wish to take such action is a secondary question, but legally could they force me to stop?... you bet.

The OP asked:
1) Does copyright protection extend to "sounds"? (The answer is "yes").
2) If a person's website has free sounds on it and someone uses parts of those sounds, mixes them onto a CD and then sells said CD for profit, would that be illegal? (The answer would be "yes", as the CD would be a "derivative work" in the eyes of Federal copyright law.)
3) If a person were to mix these sounds in an original way (sounds currently available individually), then wouldn't that be unique, hence original? (It would not be original. Again, the CD would be a "derivative work" in the eyes of Federal copyright law... Just like the rap artists that were sued when they "mixed" the copyrighted work of others.)
4) Would it be considered stealing if the sounds were posted on-line as free to download? (Legal opinion is clear, posting something to the Internet doesn't make it a "public domain" work. But it's up to the rights holder to decide if and when to assert their right. Expressly giving something away for free also doesn't negate a copyright... Ducklite provides a classic example of this notion above. Whether Ducklite gave that image directly to the one person, or posted it on the DIS for anyone that wanted it wouldn't have legally changed anything. Once a use that was inconsistent with her wishes was found, she was legally able to step in and shut the use down and ask for compensation.)

If the OP were to proceed with the CD they have two options:
1) Seek the permission of the creator of the works beforehand. They may not care, or they may negotiate a fee and/or royalty.
2) Go ahead without permission and hope that the creator either: doesn't care, or doesn't find out about it.