KVR Audio

kitkonis · Post by **kitkonis** » Fri Jul 20, 2012 3:30 pm

I have some question about creating commercial loops for sale. Is it legal to create a loop with a arpeggiator + synth, so two vsts and use a preset of arpeggiator to triger the synth? Or do you must use a modified preset? what about synth presets that allready have arpeggiator presets? Can you use this to create loops? I realy don' know what is allowed and what not.... I have heard some loops on the market which are made of presets of synths i know.

whyterabbyt · Post by **whyterabbyt** » Fri Jul 20, 2012 3:45 pm

kitkonis wrote:I have some question about creating commercial loops for sale. Is it legal to create a loop with a arpeggiator + synth, so two vsts and use a preset of arpeggiator to triger the synth? Or do you must use a modified preset? what about synth presets that allready have arpeggiator presets? Can you use this to create loops? I realy don' know what is allowed and what not.... I have heard some loops on the market which are made of presets of synths i know.

generally, dont make samples of synth presets that you didnt make yourself, arperggiated or not.

Perimeter Sound · Post by **Perimeter Sound** » Fri Jul 20, 2012 3:59 pm

It's a valid question. I actually put a clause about it in the Eula for my Zebra patch sets - I reserve the right to use them in future loop sample collections myself. Since they are 'melodic' in nature, it seems somewhat likely that a court would uphold my copyright claim on them. Not that I can afford a lawyer just for that ha-ha. And that said, it would just make a person look bad if they sampled any obvious/known preset and word got around. I mean really, would you want to pay for that ? I doubt anyone would, and it could easily ruin your reputation if it was found out. Or look at it this way - where's the fun in just hitting render on someone else's creation ? Surely you and everyone else, can do better than that, even I usually can, and I'm nobody ha-ha.

ghettosynth · Post by **ghettosynth** » Fri Jul 20, 2012 5:02 pm

kitkonis wrote:I have some question about creating commercial loops for sale. Is it legal to create a loop with a arpeggiator + synth, so two vsts and use a preset of arpeggiator to triger the synth? Or do you must use a modified preset? what about synth presets that allready have arpeggiator presets? Can you use this to create loops? I realy don' know what is allowed and what not.... I have heard some loops on the market which are made of presets of synths i know.

Since nobody else is actually trying to answer the question, most likely, yes it is probably legal. I disagree with Perimeter Sound's "likely" defense. First, IANAL and this is not legal advice.

An arp preset is very much like a guitar riff in nature and I suspect that, like with most guitar riffs, a de-minimis defense can apply. It is not a "sound recording" so it is most likely not subject to the ruling that has eliminated the de-minimis defense and required licensing of any length sound. Note, this defense which library makers love so much is about "audio recordings" only. It doesn't apply to sampling any signal.

Copyright was not designed to protect every little insignificant expression, and yes, sorry if you're offended, but guitar riffs, beat patterns, arp presets, and dubstep bass patches, are, IMNSHO, insignificant expressions. It's not unlike trying to copyright a sentence, or more importantly, trying to win a copyright case based on one's claim of a copyright of a sentence.

Certainly, big companies like Roland can threaten action and you may find that the wiser course of action is to comply with their requests rather than becoming a test case, but that doesn't make an act specifically illegal.

Here are some examples taken from a Stanford page on the subject of fair use that indicate that de-minimis is alive and well in other areas of "sampling."

In some cases, the amount of material copied is so small (or "de minimis") that the court permits it without even conducting a fair use analysis. For example, in the motion picture Seven, several copyrighted photographs appeared in the film, prompting the copyright owner of the photographs to sue the producer of the movie. The court held that the photos "appear fleetingly and are obscured, severely out of focus, and virtually unidentifiable." The court excused the use of the photographs as "de minimis" and didn't require a fair use analysis. (Sandoval v. New Line Cinema Corp., 147 F.3d 215 (2d Cir. 1998).)

As with fair use, there is no bright line test for determining a de minimis use. For example, in another case, a court determined that the use of a copyrighted poster for a total of 27 seconds in the background of the TV show Roc was not de minimis. What distinguished the use of the poster from the use of the photographs in the Seven case? The court stated that the poster was clearly visible and recognizable with sufficient observable detail for the "average lay observer" to view the artist's imagery and colorful style. (Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70 (2d Cir. 1997).)

Note the opening sentence, this is not a "fair use" defense. Look, IANAL, but, it's fairly clear to me that the use of such presets isn't cut and dry.

So, if you make a substantial sample library, and a few samples are using someone else's arp preset which is a minor part of their copyrighted patch library, then, it's possible that a de-minimus defense may apply. Now, if their claim is that each individual patch, or tiny subsequence is, itself, subject to copyright independently of the overall work, then they may run the risk of finding out that their work isn't subject to protection at that level.

I'm quite sure that I don't need permission, for example, to play or record any of the guitar riffs found in any of the various "guitar blues bible" type books that I have. Many of those are far longer than most arp presets. As the Stanford site points out, however, you have to be careful with well known riffs. They use the "satisfaction" riff as an example.

I doubt that there's ever been a case of a preset being tested, let alone an arp preset, and so it is probably untested ground. The tendency on KVR is to err on the side of the library developer perspective. However, that doesn't make that particular point of view correct, unless, we are specifically talking about "sound recordings" which is the only area, AFAIK, where there has been an actual ruling that eliminates any de-minimis defense.

So, it's not necessarily explicitly illegal and the context under which it might be a violation of copyright would have to be determined by a court. If it's a fairly simple preset, a few notes, a modification of the typical up-down patterns, etc, there's good chance that any attempt to claim copyright on such an element would be dismissed. If it could be considered a composition in its own right, however, there may be a greater probability that it would be subject to protection. That doesn't mean that the practice is explicitly illegal, just that you might be found in violation of someone's copyright in that particular case.

tl; dr: Riffs and melodies are not subject to the same bright line rule that samples are subject to. It is not explicitly illegal for you to use them in your own work. Whether you are violating copyright is a function of many things that would have to be determined in court. There are examples of such use that has both been found to, and not to, violate copyright, IANAL, YMMV.

Perimeter Sound · Post by **Perimeter Sound** » Fri Jul 20, 2012 5:58 pm

I can't imagine anyone making enough $ off of it for me to care, legally speaking. My point is more, why would you do that as a goal ? If you just want to sell crap and make money, music is no place to waste your time on, X10 if you're wanting to go looking for legal loopholes and untested cases to find ways to cheat others with ha-ha.

In my Eula I state that I don't give that permission. If someone wants to "take" that from me, well then quite frankly, I hope they do make a ton of money off it. Cause then it would be worth my time to hire a lawyer to try and get my share. *shrug* But again, it's a fantasy, no preset arp is worth any real amount of money until someone gets it on the radio or whatever first, and by then it's copyrighted for sure, so problem more or less solved.

ghettosynth · Post by **ghettosynth** » Fri Jul 20, 2012 8:04 pm

Perimeter Sound wrote:I can't imagine anyone making enough $ off of it for me to care, legally speaking. My point is more, why would you do that as a goal ? If you just want to sell crap and make money, music is no place to waste your time on, X10 if you're wanting to go looking for legal loopholes and untested cases to find ways to cheat others with ha-ha.

First, I don't think that you have any evidence that the OP's contribution is crap simply because they asked about using arp presets. I think that it's a fair question. In a more general sense, it's not clear to me that one cannot take an insignificant work, such as an arp preset, and turn into into something that is more significant. But, let's be clear here, I'm not agreeing that just because any crap sample is protected by a bright line rule, that it's significant.

Second, it's not a legal loophole. It's simply the law. You do not have a bright line rule for works that are not an audio sample, so it is not necessarily illegal. That isn't a loophole that wasn't intended, that's the law. In fact, I would argue that the current bright line rule for samples is, in essence, a loophole being exploited where it was not intended. The case did not consider that the "copyrighted work" being sampled was anything but that which is already a substantial copyrighted work. I'd expect that if the case were over 909 hihat samples that there might have been a different result.

What I'm saying is, that the current legal environment provides significant protection for those creating sound sample libraries that is often far more protection than they actually deserve. Said differently, I don't think that sample library developers have any high horse to ride into town.

As far as insulting others wanting to use tools to create sounds, to take your perspective, why would you bother creating soundsets for other people's synths, when you could be so much more creative and make your own synth?

Clearly, without the hard work of others, some of your revenue stream would dry up as well. Conceptually, it's really no different, your soundsets earn you money off the backs of a derived work. My argument, whether it suits you or not, is that the common wisdom about using presets may not be as enshrined in law as developers here would like to believe. In fact, you may find that using an arp preset to create a "copyrighted sample" is no more a derived work than using someone else's synth to create your own "copyrighted patch."

In my Eula I state that I don't give that permission.

You can state whatever you want, we're talking about whether you have any right to enforce such statements. A synth dev could state that the license doesn't grant you the right to use it to make sample libraries even though there are no recorded samples, whether that would hold up in court is another matter entirely.

If someone wants to "take" that from me, well then quite frankly, I hope they do make a ton of money off it. Cause then it would be worth my time to hire a lawyer to try and get my share. *shrug* But again, it's a fantasy, no preset arp is worth any real amount of money until someone gets it on the radio or whatever first, and by then it's copyrighted for sure, so problem more or less solved.

This perspective is partly built into, at least the founding principles, of copyright in the first place. The reality is, in almost all cases, individual arp presets are not a significant work. Nobody is taking anything from you by using an arp preset to drive an arp to make a sample. They are using it as you intended. Whether you have the right to be compenstated to that depends on a lot of factors but DOES NOT depend on any bright line rule.

Of course, this is not the same, as for example, copying an entire preset library and trying to pass it off as your own. This would be very similar to the example I posted regarding the "guitar licks bible" type of book. I could use any lick that I wanted to in any record that I chose to make, including a sample library of such licks, but I can't copy the book.

Really, an arp is equivalent to a synthesizer in that it's a machine that generates a signal based on a set of input parameters. I think that one might be on shaky legal ground trying to claim individually, it's deserving of copyright protection.

The bottom line here is first, that legally, it's not clear to me that such trivial "works" can be copyrighted on masse, de-minimis applies; second, that the only people interested in making a big deal of trying to prevent others from using tools to create tools, probably don't have the legal/financial muscle to drive the test cases needed to escalate the problem to the level of a bright line rule.

I'm guessing that Yamaha/Roland/Korg could give a shit if you use their arps to drive your sample and put it in a sample library, there are probably dozens of such libraries. They care about their samples because they know that there is a bright line rule that they can rely on. They're not going to waste the money testing and "arp case" because there is significant risk of push back on the existing bright line rule. The concept of copyright on sound recordings was never intended to protect so much insignificant work. And again, to be clear, the bright line rule does not apply to anything that isn't a sound recording.

One thing that we've seen recently is some pushback on some of these draconian ideas, for example, a recent EU ruling, from the same case that's challenging license transfers, declares APIs non-copyrightable.

ksandvik · Post by **ksandvik** » Fri Jul 20, 2012 8:12 pm

Seriously, you tweak one single parameter and the sound is different... Or remove/add one note in the arp sequence...

ghettosynth · Post by **ghettosynth** » Fri Jul 20, 2012 8:31 pm

ksandvik wrote:Seriously, you tweak one single parameter and the sound is different... Or remove/add one note in the arp sequence...

If the original arp preset was significant enough that the melody would be worthy of compensation owing to infringement, then this won't change that fact, if the original arp preset is not that significant, then this isn't necessary.

Perimeter Sound · Post by **Perimeter Sound** » Fri Jul 20, 2012 8:49 pm

ghettosynth - I'm not really interested in argueing the whole concept with a lawyer, or you. I just don't see the point in sampling someone else's work for my own, why bother getting up in the morning. Legally or otherwise, that's my only concern, my work, my life, my interest in doing what I do. If someone can steal from me legally, then whatever I guess, I can't afford to defend it unless they steal a lot. So (if you're going to) steal from my work, then make sure to get on the radio, please ha-ha.

If someone changes say 2 notes in an arp patch of mine, then sure, it's no longer mine, go for it. The OP didn't specificy that he/she was changing anything, so I have to assume they meant no changes. Anyways, not worth argueing about, people will do what they will do, I'm just asking what's the point, because it's (currently) legal to steal from someone that makes it o.k. ? I mean, I have the original copyright, I said no, but you say yes, or you say you don't care ? Good luck in life to you then, that's not how I want to spend mine is all I'm saying.

That said, in my Eula(s), I give as many or more rights than any company does. It's not about hiding or protecting things other than the most obvious stuff anyways. I'm pretty open about my crap, email me if you have a "legal" question about usage, I can probably save you $200 an hour in consultation fees ha-ha.

kitkonis · Post by **kitkonis** » Fri Jul 20, 2012 10:12 pm

what can i say, tnx, i am really impressed with your long answer ghettosynth. that is really nice from you, i am glad I found this forum and you guys. I hope you two will not start a war because it was just a question

..

btw i was more pointing at arpeggiators vst-s who trigger other virtual instruments. I would never use a made preset from a synth as a loop, but when you make a loop using an external arpegiattor(who has no sounds) and trigger a synth with it, why not? you change some notes and there it is. tnx again for this information.

Perimeter Sound · Post by **Perimeter Sound** » Fri Jul 20, 2012 10:41 pm

kitkonis wrote:btw i was more pointing at arpeggiators vst-s who trigger other virtual instruments. I would never use a made preset from a synth as a loop, but when you make a loop using an external arpegiattor(who has no sounds) and trigger a synth with it, why not? you change some notes and there it is. tnx again for this information.

No war intended, just stating some opinions/questions of my own is all.

And for what you are (now more specifically) asking about, if it's a non-sample based synth, ie = Zebra or Sylenth (or any of hundreds of non-romplers) then it is fully legal as of a long time ago, no permission/worries needed. It's only with romplers that there are already at least some cease & desist/threatening legal issues with. A -synthetic- sound patch turned into an arp with your melodic/pitch/note choices is 99.9999999999% safe to sample, ie = I'm not aware of any cases where someone even bothered trying to sue over a programmed 2nd party-at-least patch used like that. And I do have a foot in the industry (of samples and patches etc.) knock on wood ha-ha.

Zombie Queen · Post by **Zombie Queen** » Fri Jul 20, 2012 11:49 pm

Some good posts Ghettosynth. This is going a bit off-topic, but it's really interesting issue and as I understand it, it all goes to question, 'is a single synthesizer patch/preset (one which does not contain a sample) a valid subject of copyright?'. It's not trivial question and (despite the general kvr-mood, which is well understandable) the answer is far from clear. As I see, nobody actually seen this issue tested in court? Personally I would say, it's not. It's just my opinion, but really do we have anything else than people's opinions here?

Hink · Post by **Hink** » Sat Jul 21, 2012 12:05 am

how would one go about proving what patch you used or for that matter what synth? What if you used a free synth? Some of the excellent points made by Ghettosynth make me thing of John Mayall's "Steppin Out" and Deep Purple's "Lazy".

ghettosynth · Post by **ghettosynth** » Sat Jul 21, 2012 2:52 am

Perimeter Sound wrote:ghettosynth - I'm not really interested in argueing the whole concept with a lawyer, or you. I just don't see the point in sampling someone else's work for my own, why bother getting up in the morning. Legally or otherwise, that's my only concern, my work, my life, my interest in doing what I do.

But you miss the point completely. Your work is derivative. You do not develop synthesizers, and if you did, you most likely don't create programming languages to create synthesizers, and if you did, you probably don't design computers to run the programming languages, and if you did, you probably are not a physicist or materials scientist developing the semiconductor technology necessary to build the computers...

You clearly see the point of using the work of others to create your own, you need their work to fuel your creative output, they do what you can't do and you add value by contributing what you can do. The point is that you, along with every other person on this planet, are incapable of creating anything truly original. In everything that you do you stand on the shoulders of giants.

So if someone sees some value in an arp preset to which they can add value, that is no different than what you do, seeing the value in an arp to which you add value.

The belief that your creative output is automatically protected by copyright no matter how insignificant is fallacious; that bright line rule exists ONLY for audio samples.

So the answer to the question that the OP asked, is not the answer that you gave, your answer is merely your opinion, and in my opinion, fails to acknowledge your own lack of originality. This is a general criticism that I see in many of the library vendors here on KVR, they seem very quick to point out how their work is protected but seldom, if ever, jump to acknowledge the rights that others, in fact, have to build on their creative output.

ghettosynth · Post by **ghettosynth** » Sat Jul 21, 2012 3:00 am

kitkonis wrote:what can i say, tnx, i am really impressed with your long answer ghettosynth. that is really nice from you, i am glad I found this forum and you guys. I hope you two will not start a war because it was just a question ..

btw i was more pointing at arpeggiators vst-s who trigger other virtual instruments. I would never use a made preset from a synth as a loop, but when you make a loop using an external arpegiattor(who has no sounds) and trigger a synth with it, why not? you change some notes and there it is. tnx again for this information.

Thanks, this is a subject that I'm very much interested in and I like to do my best to help stem the tide of misinformation. Again, however, I am not a lawyer, so for any significant business concern you should always seek the advice of an attorney.

So with respect to your question, first, your use case was clear to me from the get go, perhaps it wasn't to others. As for whether an arp preset itself can be subject to copyright protection, it is not automatically no, but in all likelihood, I can't imagine that there is any significant risk in using virtually any preset in such a fashion even if you don't change any notes.

Is it legal to create loops with arpegiattors?