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RE: [microsound] what is the legal position?




for releasing a non-profit album full of uncleared samples?

I'm not a lawyer, but I've spoken to a couple of copyright lawyers about this type of thing. This is my understanding of the legal situation, but it's obviously not a pro legal opinion, and could be wrong on one or more counts:


The fact that your project is non-profit isn't particularly important. The salient legal issue is the 'moral rights' of the author, i.e. the author's right to preserve the integrity of his or her work, and to control its dissemination. If you were sued, the claim would be for damage to artistic reputation and/or damage to the integrity of the artwork, and the damages sought wouldn't be correlated with the money you earned from the album. While it's very unlikely to succeed in court unless you had a brilliant lawyer, it may be possible to claim 'fair use' depending on your use of samples (and while 'fair use' is terminology specific to US law, as far as I understand, related provisions exist in other countries- the law varies a lot in the details from country to country). Limited quotation for the purpose of criticism (among other purposes) is, in theory, protected in American law, but I believe that particular provision was intended to cover textual quotation, not musical quotation.

Now, whether anyone would find out about your work, or care enough to pursue legal action, is another question entirely. But John Oswald, Negativland, et al, probably expected to fly below the radar as well, and that's not quite what happened (although Craig Baldwin was litigation-free last I heard).

all the best,
Ian



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