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Etch-A-Sketch 9th January 2019 10:51 PM

COMPOSERS: DO NOT USE SPLICE [Public Service Announcement]
 
Hi Everyone,

This issue just came up with me and so I figured I'd share with everyone.

If you are writing music for use in Film/TV licensing or for any sort of work-for-hire agreements... DO NOT USE SPLICE.

When asking splice about using their loops/samples in musical compositions, they wrote back and said:

Quote:

If you layer with another sample or augment the original that would constitute a derivative work.
A DERIVATIVE WORK!!! SPLICE IS NOT BUYOUT!!!! Anything you create using splice content, splice still owns and you have to negotiate a percentage split with them and include them as co-composers on any deals you do.

Just to be clear for everyone...

Quote:

...the copyright in a derivative work includes and covers only the new additions, changes, and added material in the derivative work. The copyright in the derivative work does not give the author of the derivative work any rights in or to the borrowed copyrightable elements of the original.

Copyright Ownership in Derivative Works – Susan Spann, Mystery Author
Anyway... I remember seeing a thread a little while ago about some people starting to try out and use Splice. Just letting you know it is a very bad idea for anything you are going to try and sell or license commercially.

Cheers!

JohnFulford 9th January 2019 11:05 PM

How does this fare (fair?) against their user agreement which states...

c. Ownership. You are free to register a copyright in a derivative work you create using a Sound (“Your Work”). However, you do not own the copyright in the Sound, and if you submit a takedown notice to any third party sites for Your Work, then you are responsible for ensuring that such takedown notice is not being issued for a different work on the basis that the different work includes the same Sound. Submitting a takedown notice in violation of The Digital Millennium Copyright Act of 1998 (the “DMCA”) may subject you to liability for damages under Section 512(f) of the U.S. Copyright Act.

Etch-A-Sketch 9th January 2019 11:38 PM

Exactly, you have to register it as a derivative work. You never own it 100%. Splice owns it and if you ever decide to sell it to a library you need to negotiate the percentage split between you and splice and then the library has to contract and pay splice as a co-writer.

Or if you write it yourself and then try to license it on your own, you cannot negotiate on behalf of splice so you have to turn the license over to splice and they negotiate their money on their own for the license.

It’s kind of a nightmare, actually. It is no different than using a sample from Queen or any other famous artist.

ehrenebbage 10th January 2019 12:14 AM

How is this different from any other sample/loop library license? We never take ownership of the copyright of the original sound. I wonder if they're just being clumsy with the term 'derivative work'?

Etch-A-Sketch 10th January 2019 12:23 AM

Quote:

Originally Posted by ehrenebbage (Post 13729758)
How is this different from any other sample/loop library license? We never take ownership of the copyright of the original sound. I wonder if they're just being clumsy with the term 'derivative work'?

With other loop/sample libraries it is considered a buyout... so long as you do not release the loops “as is” in isolation but use them as part of a musical work, the new musical work IS NOT a derivative work but considered a completely new copyright.

ehrenebbage 10th January 2019 12:35 AM

Quote:

Originally Posted by Etch-A-Sketch (Post 13729776)
With other loop/sample libraries it is considered a buyout... so long as you do not release the loops “as is” in isolation but use them as part of a musical work, the new musical work IS NOT a derivative work but considered a completely new copyright.

Interesting. I suspect they're being clumsy. From the Splice FAQ:


"You have a broad royalty-free license for every sample that you download from Splice Sounds. This means you can use, reuse, remix, and otherwise modify and mangle downloaded samples in any of your productions, including commercial projects, from block bangers to movie scores to voicemails."

This is from the Spitfire EULA, and my guess is that this is what Splice means:

"This license expressly forbids resale or other distribution of the Products or their derivatives, either as they exist in the library, reformatted for use in another sampler, or mixed, combined, filtered, re-synthesised or otherwise edited, for use as sounds, multi-sounds, samples, multi-samples, sound sets, programmes or patches in a sampler, microchip, computer or any sample playback device."


I could be wrong. I often am : )

Etch-A-Sketch 10th January 2019 12:52 AM

Quote:

Originally Posted by ehrenebbage (Post 13729791)
Interesting. I suspect they're being clumsy. From the Splice FAQ:


"You have a broad royalty-free license for every sample that you download from Splice Sounds. This means you can use, reuse, remix, and otherwise modify and mangle downloaded samples in any of your productions, including commercial projects, from block bangers to movie scores to voicemails."

This is from the Spitfire EULA, and my guess is that this is what Splice means:

"This license expressly forbids resale or other distribution of the Products or their derivatives, either as they exist in the library, reformatted for use in another sampler, or mixed, combined, filtered, re-synthesised or otherwise edited, for use as sounds, multi-sounds, samples, multi-samples, sound sets, programmes or patches in a sampler, microchip, computer or any sample playback device."


I could be wrong. I often am : )

Yeah the problem comes into play with the use of the wording "register as a derivative work".

When asking Splice about time compression/expansion, pitch shifting, effects mangling, layering with other sounds, etc... they said it doesn't matter, it still needs to be registered as a derivative work.

Any derivative work is a combination of copyrights. Any new content created for the work is owned by the new composer, any original content used to write on top of is still owned by the original copyright holder... and the new content owner and original content owner have to negotiate back and forth between themselves as to the percentage splits. how much of the new work is the original and how much of it is new? Did you just add a shaker on top of a Splice loop that has Bass, keys, guitars and drumset in it? Ok, so now you and Splice have to negotiate back and forth as to how much your contribution of a shaker is worth to the overall new Derivative work.

Then once that is agreed upon... if you try to enter into any contract with this new derivative work, a contract must also be done with the other rights holders since a derivative work does not give you the right to negotiate and control the rights of the original work.

I've talked to Spectrasonics and Big Fish Audio about this in the past. they have both said so long as there are 3 or 4 additional MUSICAL layers added on top of their sample/loop, and those additional layers do not come from the same product, then it is a completely new composition and they do not consider it a derivative work. Splice doesn't look at it that way. If you are making new product using their product it's always a derivative work... which means you have to list them as a co-writer and negotiate splits and then any deal you do they also have to agree to the deal.

Whether or not they are being clumsy with the wording, you can tell by reading their EULA that it was written by some sort of lawyer... which makes me wonder if a few years from now after there are tons of derivatives out there using their samples that aren't registered as derivatives if they are going to start going after the big ones... "Hey, that Drake song and that Weeknd song that were #1 hits... yeah, we own most of that actually so pay us our money..." and so on...

Etch-A-Sketch 10th January 2019 12:55 AM

Quote:

Originally Posted by ehrenebbage (Post 13729791)
This is from the Spitfire EULA, and my guess is that this is what Splice means:

"This license expressly forbids resale or other distribution of the Products or their derivatives, either as they exist in the library, reformatted for use in another sampler, or mixed, combined, filtered, re-synthesised or otherwise edited, for use as sounds, multi-sounds, samples, multi-samples, sound sets, programmes or patches in a sampler, microchip, computer or any sample playback device."


I could be wrong. I often am : )

Also, just thought I would point out... nowhere in the spitfire section you quoted does it say anything about musical works. It is basically saying you are not legally allowed to use any Spitfire product to make other sounds, multi-sounds, samples, multi-samples, sound sets, programs, or patches in a Sampler, microchip, computer or any sample playback device. You CAN use Spitfire to make musical works. And when you use Spitfire to make musical works they are not required to be registered as Derivative Works, the way Splice does.

Etch-A-Sketch 10th January 2019 01:10 AM

Quote:

Originally Posted by JohnFulford (Post 13729655)
How does this fare (fair?) against their user agreement which states...

c. Ownership. You are free to register a copyright in a derivative work you create using a Sound (“Your Work”). However, you do not own the copyright in the Sound, and if you submit a takedown notice to any third party sites for Your Work, then you are responsible for ensuring that such takedown notice is not being issued for a different work on the basis that the different work includes the same Sound. Submitting a takedown notice in violation of The Digital Millennium Copyright Act of 1998 (the “DMCA”) may subject you to liability for damages under Section 512(f) of the U.S. Copyright Act.

the other thing to point out... once you show this section of Splice's EULA to any music library, they are going to say "hell no". This basically makes it impossible for them to police and collect royalties on the composer's behalf and on their own behalf. And it says if they do try they themselves are liable for an damages under Section 512(f) of the US Copyright Act!?!?!!!??

Let me explain that to you... let's say for example a well known brand, like AT&T or Ford using a piece of music licensed from a library in a commercial. But that piece of music was mainly a Splice loop. A second library also has a track that mainly uses that same splice loop. In Tunesat and BMAT and SoundMouse that commercial might get flagged as an unreported use for the SECOND LIBRARY.

The second library issues a cease and desist to the brand, the ad agency the brand used to make the spot and to the library that licensed the track to the agency...

then it comes out that it's a Splice loop and neither library has a claim over it since it is technically owned by Splice and Splice is entitled to the majority of the royalties...

So the first library loses their royalty revenue and potentially has to give up the license money to Splice from Ad sync license. The Ad agency is no longer using the first library now because of this issue and so the first library has lost a significant amount of potential new wages because of this claim... The second library could now technically be held liable for those lost wages of the first library and could have to pay the first library $$$ if they decided to sue.

So you can see how this is a HUGE red flag and no publisher in there right mind would ever touch anything from splice with a 10 foot pole?! The potential for problems is huge and the risk in using music with samples from splice is super high.

Even if they change their EULA in the future... all the uses that have fallen under the current EULA so far are still bound by it and it's derivative work claims.

So beware. Even if it is their own ignorance (which in reading how the EULA is worded, it was definitely written by an attorney that knew what they were talking about so i don't think it was written this out out of ignorance), the law is the law. Ignorance is not a justifiable defense in a copyright dispute.

ehrenebbage 10th January 2019 01:11 AM

Quote:

Originally Posted by Etch-A-Sketch (Post 13729829)
Also, just thought I would point out... nowhere in the spitfire section you quoted does it say anything about musical works. It is basically saying you are not legally allowed to use any Spitfire product to make other sounds, multi-sounds, samples, multi-samples, sound sets, programs, or patches in a Sampler, microchip, computer or any sample playback device. You CAN use Spitfire to make musical works. And when you use Spitfire to make musical works they are not required to be registered as Derivative Works, the way Splice does.

I pulled the Spitfire EULA up as an example of what I suspect Splice is trying to say...it's a different use of the word 'derivative.'

Splice doesn't offer any guidance for how to register or who to contact to negotiate song splits, licenses, etc.

They also make it clear that the use of their sounds is royalty free for any commercial purpose other than repackaging or reselling.

It's easy to imagine how they could be clumsy with the term 'derivative'.

It's hard to imagine how they'd make any claim when it's clearly advertised as being royalty free. It's also hard to imagine that they're actually set up to handle the huge number of inquiries, song split negotiations, license negotiations, etc. that they'd need to accommodate if this were their business model.

I totally understand that you're correct re: registration of derivative works if that's what they mean. I just can't picture how a company could take that approach and expect to stay in business.

Audio Child 10th January 2019 01:11 AM

thnx for the heads up Derek! besides spectrasonics and big fish is there any other of similar nature ?

SWAN808 10th January 2019 01:19 AM

oh dear...I have a splice subscription...seems like a bit of a cop out...

ehrenebbage 10th January 2019 01:21 AM

Here's a Splice blog post making it crystal clear that they intend for this to be a completely royalty free source of sounds:

Samples: What it means to be Royalty-Free - Blog | Splice


Derek, your comment re:potential conflict with the use of the same identifiable loop is a great point, but how is that different from any other loop library?

The same issue could arise between advertisers with a Big Fish loop, a Samplephonics loop, etc., etc. A media composer using an identifiable loop as a key element in a tune is asking for trouble no matter who they get it from.

Mechanikproject 10th January 2019 10:39 AM

Well F* me.
I've been using Splice for long time and really thought that completely royalty-free means completely royalty-free.

"c. Ownership. You are free to register a copyright in a derivative work you create using a Sound (“Your Work”). However, you do not own the copyright in the Sound, and if you submit a takedown notice to any third party sites for Your Work, then you are responsible for ensuring that such takedown notice is not being issued for a different work on the basis that the different work includes the same Sound. Submitting a takedown notice in violation of The Digital Millennium Copyright Act of 1998 (the “DMCA”) may subject you to liability for damages under Section 512(f) of the U.S. Copyright Act. "

I can copyright my work, but I cannot copyright the sounds or loops from Splice. Also I cannot submit a takedown notice to anyone who just happens to use the same sound/loop that I am.

So my conclusion in this is, that it doesn´t actually change anything, but maybe need to ask the carification from the Splice.

If it is like that, then I sure will cancel my subscription.

ehrenebbage 10th January 2019 04:54 PM

Splice support's response when I asked if they require registering tunes as derivative works and naming them as owner of the copyrighted material:

"We do not ask for co-writer credentials, nor do we stake claim for a percentage of your master.

As mentioned in our terms, this simply means you can use, reuse, remix, and otherwise modify and mangle downloaded samples in any of your productions."

As the copyright holder they can authorize use according to their own terms. In this case, their license grants the ability to use sounds for any commercial purpose but (of course) doesn't transfer ownership of sounds. Their use of the term 'derivative work' is confusing, but their license doesn't specifically state that they must be recognized as copyright holder of a sound used in a song registered as a derivative work. They make it clear that their sounds are royalty free.

"However, you do not own the copyright in the Sound, and if you submit a takedown notice to any third party sites for Your Work, then you are responsible for ensuring that such takedown notice is not being issued for a different work on the basis that the different work includes the same Sound."

This seems clear, and it would apply to any sample or loop from any source. You can't use a sample and then issue a takedown notice to someone else because they rightfully use the same sound in their own work.


Derek has good cause for alarm; if composers are using identifiable loops as key elements of tunes it could cause enormous confusion for a publisher. But using a shaker loop or a drum one shot from Splice is the same as using one from any other sample library...I guess it's up to the publisher to decide if that's acceptable or not.

Jeff Hayat 10th January 2019 04:58 PM

Can someone please tell me what "Splice" is? I went to the site, but still don't know what they provide.

ehrenebbage 10th January 2019 05:31 PM

Quote:

Originally Posted by Jeff Hayat (Post 13731017)
Can someone please tell me what "Splice" is? I went to the site, but still don't know what they provide.

They do a few things, but we're talking about their sample/loop library subscription. Subscribe to their service and you get access to their sounds.

Jeff Hayat 10th January 2019 06:07 PM

Quote:

Originally Posted by ehrenebbage (Post 13731076)
They do a few things, but we're talking about their sample/loop library subscription. Subscribe to their service and you get access to their sounds.

So, they are a sample library, like EWQL, Cinesamples, etc?

Paul Biondi 10th January 2019 06:32 PM

thanks for bringing this up Etch-A-Sketch. I did a quick search - a Splice vocal artist pack used in a single by David Guetta. On the song credits there were four songwriters and two producers listed, but none were the Splice artist / Splice sound artist.

Etch-A-Sketch 10th January 2019 07:25 PM

Quote:

Originally Posted by Paul Biondi (Post 13731197)
thanks for bringing this up Etch-A-Sketch. I did a quick search - a Splice vocal artist pack used in a single by David Guetta. On the song credits there were four songwriters and two producers listed, but none were the Splice artist / Splice sound artist.

and we will wait for the lawsuit to ensue.

ehrenebbage 10th January 2019 07:27 PM

Quote:

Originally Posted by Jeff Hayat (Post 13731157)
So, they are a sample library, like EWQL, Cinesamples, etc?

Kind of. They're not providing sample-based instruments, they're providing one shots and loops. It's just like Big Fish Audio, Samplephonics, Prime Loops, etc., except it's a subscription model.

Etch-A-Sketch 10th January 2019 07:35 PM

Splice

Read through section 5 and 6... but as pertains to this topic...

5a(vii) states...

“Use” means to reproduce, distribute, publicly display, transmit, synchronize, communicate to the public, make available, publicly perform (including by means of digital audio transmissions) on a through-to-the audience basis, create derivative works from, transmit to Third Party Sites, and otherwise use and exploit.


6a states....

Sounds are licensed, not sold, to you. Subject to Section 6.b below, you are granted a non-exclusive, non-transferable, perpetual right to use Sounds you obtain through Splice Sounds in combination with other sounds in music productions to create derivative works. This means that, subject to Section 6.b, you may modify, reproduce, publicly perform, distribute, transmit, communicate to the public and otherwise use Sounds, including for commercial purposes.


and 6b states...

You may not (i) use the Sounds in isolation as sound effects or as loops, (ii) use Sounds in a manner competitive to Company or its licensors, or (iii), sell, loan, share, lend, broadcast, rent, lease, assign, distribute, or transfer all of the Sounds to a third party except as incorporated into a derivative music production. Additionally, for clarity, you may not use the name, image, or likeness of the artist associated with a Sound in any way without that artist’s express written permission.


6c states....

You are free to register a copyright in a derivative work you create using a Sound (“Your Work”). However, you do not own the copyright in the Sound, and if you submit a takedown notice to any third party sites for Your Work, then you are responsible for ensuring that such takedown notice is not being issued for a different work on the basis that the different work includes the same Sound. Submitting a takedown notice in violation of The Digital Millennium Copyright Act of 1998 (the “DMCA”) may subject you to liability for damages under Section 512(f) of the U.S. Copyright Act.


For those that do not understand what a derivative work is... please look it up and learn about it.

Using a splice sound and then registering the song as your own 100% completely original music is against the EULA and is copyright infringement...

Look at it this way... You contact Rick James' Estate and Publisher as well as his record label and you get permission to sample "Superfreak" and make a new song from it... BUT THEN YOU REGISTER THE COPYRIGHT AS 100% YOUR OWN, excluding Rick James completely. Is that allowed? Is that legal? Do you think Rick's estate, publisher and label will just let that slide?

After getting permission, you then need to register the song as a DERIVATIVE WORK. You also need to negotiate the percentage split between the samples you got permission to use and the new music you've added on top. That creates the new composer splits for the song you just wrote using the sample.

Make sense?

Splice is saying any music you create using splice loops/samples needs to be a derivative work. That means you need to split ownership with whoever created the sample through splice. You do not own nor control 100% of that new song you just created. Any deals you want to do with it, also have to be pitched and negotiated with your splice cowriters and you are then basically at their mercy.

ehrenebbage 10th January 2019 07:35 PM

Quote:

Originally Posted by Etch-A-Sketch (Post 13731290)
and we will wait for the lawsuit to ensue.

I wrote back to Splice to triple check what they mean by 'derivative' and they responded:

"This is not saying that you'd need to register as a derivative work, it's saying you may not (i) use the Sounds in isolation as sound effects or as loops, (ii) use Sounds in a manner competitive to Company or its licensors, or (iii), sell, loan, share, lend, broadcast, rent, lease, assign, distribute, or transfer all of the Sounds to a third party except as incorporated into a derivative music production. Basically, if you use a sample is a larger composition with other elements it's not a derivative work."

I think they're using the term 'derivative' in a general sense, not in the US copyright law sense. I totally get what you're saying and I understand the meaning of 'derivative work' as it applies to US copyright law, but Splice makes it clear that use of their samples is royalty free, and they don't intend for songs to be registered as derivative works.

It's clunky for sure, but every other bit of information they've provided leads me to this conclusion.

Etch-A-Sketch 10th January 2019 07:38 PM

Quote:

Originally Posted by ehrenebbage (Post 13729872)
Here's a Splice blog post making it crystal clear that they intend for this to be a completely royalty free source of sounds:

Samples: What it means to be Royalty-Free - Blog | Splice


Derek, your comment re:potential conflict with the use of the same identifiable loop is a great point, but how is that different from any other loop library?

The same issue could arise between advertisers with a Big Fish loop, a Samplephonics loop, etc., etc. A media composer using an identifiable loop as a key element in a tune is asking for trouble no matter who they get it from.

This has nothing to do with royalties... whether it is royalty free or not is irrelevant. This has to do with the ownership of the copyright and control of the copyright.

Imagine if you had to list Eric Persing as co-composer and Spectrasonics as co-publisher on every song you ever wrote using Omnisphere. THAT is what the splice EULA says you have to do. That is NOT what the Spectrasonics EULA says you have to do.

Why? Because Spectrasonics says nothing about having to register the new music as a derivative work of the original Omnisphere masters. Using Omnisphere samples to write a new piece of music, their EULA says that new piece of music is yours 100%. Splice says it is not yours 100% and you have to split ownership with the creators of the samples you used through splice.

Etch-A-Sketch 10th January 2019 07:41 PM

as a side note... when you go to sign these tracks over to a library, somewhere in the contract it always says something to the effect of "you certify that you own and control 100% of all copyrightable material within all the music referenced in this contract and you have the right to assign the copyright over to other entities..."

It's usually part of the indemnity clause.

When using splice loops you CANNOT agree to that because you do not have 100% control and ownership... because every song you create with splice is a derivative work partially owned by the sample creators.

Etch-A-Sketch 10th January 2019 07:47 PM

Quote:

Originally Posted by ehrenebbage (Post 13731313)
I wrote back to Splice to triple check what they mean by 'derivative' and they responded:

"This is not saying that you'd need to register as a derivative work, it's saying you may not (i) use the Sounds in isolation as sound effects or as loops, (ii) use Sounds in a manner competitive to Company or its licensors, or (iii), sell, loan, share, lend, broadcast, rent, lease, assign, distribute, or transfer all of the Sounds to a third party except as incorporated into a derivative music production. Basically, if you use a sample is a larger composition with other elements it's not a derivative work."

I think they're using the term 'derivative' in a general sense, not in the US copyright law sense. I totally get what you're saying and I understand the meaning of 'derivative work' as it applies to US copyright law, but Splice makes it clear that use of their samples is royalty free, and they don't intend for songs to be registered as derivative works.

It's clunky for sure, but every other bit of information they've provided leads me to this conclusion.

Ehren, it really doesn't matter what someone from their tech support department says... they do not have the legal authority to change the meaning of the word "derivative work" as it is written in the US Copyright Act of 1976.

Their EULA was written by an entertainment attorney and references specific parts of the US Copyright Act of 1976. You are now asking some kid who is not legally allowed to practice law or give legal advice, what the lawyer really "meant" when it said "Derivative Work".

Your "well their tech support said this..." defense would not stand up in a copyright dispute case.

A derivative work is a derivative work... period.

Etch-A-Sketch 10th January 2019 07:55 PM

The other thing to point out which I guess I am not making really clear...

Splice is a crowd sourced service. You join splice... you can then upload your own samples... and you can download other people's samples. I believe they also have "Splice" packaged product too that comes directly from the company, or so it seems.

When I refer to having to give ownership back to splice... I am referring to the creator of that work... But Splice if very vague about what happens to the publishing rights of material you upload. they basically say they get to use it and control it... but they don't just come flat out and say they retain the publishing of anything you post... so that is a grey area.

Most of the time when talking with composers who use splice, they don't even know who made/posted the samples they are using... which is why I always refer to giving a percentage ownership back to "splice" because splice will then have to try and determine who created it so you can credit them and seek permission from them to do anything with the track.

Splice says you do not own the samples you are using... the original creator owns them... anything you create with them are derivative works of the original samples... but then it goes on to say that by posting music to splice the poster is granting an automatic permission for others to use the sample to create derivative works... it NEVER says you get to keep 100% ownership of those samples in any works you create with them.

So you could technically hunt down the people who created the samples, negotiate composer percentage splits with them... and then register it as a derivative work... but then when you try to sell it to a music library nobody is going to touch it because it is a derivative work and you can't say that you can pass 100% ownership over... because there could be 100 other songs out there that are also derivative works of this same sample that you used.

ehrenebbage 10th January 2019 08:03 PM

Quote:

Originally Posted by Etch-A-Sketch (Post 13731341)
Ehren, it really doesn't matter what someone from their tech support department says... they do not have the legal authority to change the meaning of the word "derivative work" as it is written in the US Copyright Act of 1976.

Their EULA was written by an entertainment attorney and references specific parts of the US Copyright Act of 1976. You are now asking some kid who is not legally allowed to practice law or give legal advice, what the lawyer really "meant" when it said "Derivative Work".

Your "well their tech support said this..." defense would not stand up in a copyright dispute case.

A derivative work is a derivative work... period.

My theory is that they're using 'derivative' in a general sense, same as Spitfire does in their EULA.

I'm not taking tech support responses as having any legal authority, but I would expect them to know if their entire business model were as you describe. They'd be fielding song split and license questions all day every day.

Everything, from their marketing to their website FAQ to their tech support points to this being the case.

Here's an excerpt from some recent press covering the use of a Splice sound in a Demi Lovato song:

"You could argue that it wasn’t a great deal for Martocci and Splice, since they are missing out on the upside from a giant hit. But Martocci figures that running the musical equivalent of a stock photo service could be a big business, without trying to own a piece of the output."

Splice music sample service raises $35 million - Recode


Here's an excerpt from the Big Fish Audio EULA, using 'derivative' in the same way Splice does:

"The samples contained herein are licensed, not sold to you, the individual end user, by Big Fish Audio. This non-exclusive, non-transferable license is granted only to the individual end user who has purchased a lawfully made copy of this product from Big Fish Audio or a distributor authorized by Big Fish Audio. All samples remain the property of Big Fish Audio and are licensed only for use in the creation of a live or recorded performance that includes the licensed samples as part of a derivative musical work created by the licensed end user. This license expressly forbids resale, rental, loan, gift, or transfer of these samples in any format or via any medium, except as part of a derivative musical work."

norfolk martin 10th January 2019 08:08 PM

How else are they supposed to operate?

"You are free to register a copyright in a derivative work you create using a Sound (“Your Work”). However, you do not own the copyright in the Sound, and if you submit a takedown notice to any third party sites for Your Work, then you are responsible for ensuring that such takedown notice is not being issued for a different work on the basis that the different work includes the same Sound. Submitting a takedown notice in violation of The Digital Millennium Copyright Act of 1998 (the “DMCA”) may subject you to liability for damages under Section 512(f) of the U.S. Copyright Act."


It's fairly clear to me the what this paragraph means. The agreement grants you a licence to use the Splice sounds in derivative works royalty free, but does not grant a you a copyright in those sounds. You may register a copyright in your individual creative work that overlays the Splice sounds that you have used. You (or any other user of the Splice sounds) may not register a copyright in the underlying sounds for totally obvious reasons -if you have a copyright on the Splice sounds, you can sue anyone else that produces a work using the same sounds.

The use of the phrase "derivative works" is a bit confusing because it has an established legal meaning, but it is the terms of the contract that will control, not the accepted definition of the word outside the contract.

the only question that comes to mind is this: Splice appears to have granted YOU a royalty-free license to use the sounds in derivative works. if you then transfer the rights to YOUR work to third party, does this also transfer the rights to uses the Splice sound royalty free?

Etch-A-Sketch 10th January 2019 08:09 PM

Quote:

Originally Posted by ehrenebbage (Post 13731313)
I wrote back to Splice to triple check what they mean by 'derivative' and they responded:

"This is not saying that you'd need to register as a derivative work, it's saying you may not (i) use the Sounds in isolation as sound effects or as loops, (ii) use Sounds in a manner competitive to Company or its licensors, or (iii), sell, loan, share, lend, broadcast, rent, lease, assign, distribute, or transfer all of the Sounds to a third party except as incorporated into a derivative music production. Basically, if you use a sample is a larger composition with other elements it's not a derivative work."

I think they're using the term 'derivative' in a general sense, not in the US copyright law sense. I totally get what you're saying and I understand the meaning of 'derivative work' as it applies to US copyright law, but Splice makes it clear that use of their samples is royalty free, and they don't intend for songs to be registered as derivative works.

It's clunky for sure, but every other bit of information they've provided leads me to this conclusion.

look at what he wrote back to you...

Quote:

"This is not saying that you'd need to register as a derivative work, it's saying you may not (i) use the Sounds in isolation as sound effects or as loops, (ii) use Sounds in a manner competitive to Company or its licensors, or (iii), sell, loan, share, lend, broadcast, rent, lease, assign, distribute, or transfer all of the Sounds to a third party except as incorporated into a derivative music production. Basically, if you use a sample is a larger composition with other elements it's not a derivative work."
Please notice the...

Quote:

...except as incorporated into a derivative music production...

he tells you you don't have to register it as a derivative work but in the sentence literally right before this he said their samples have to be part of a derivative work... do you not realize he just told you, you have to register it as a derivative work but he himself doesn't understand what that means you he thinks you are fine if you don't. LOL

My lawyer would have a field day with this! Hahahaha