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Am I allowed to use other peoples instruments in my music?

Law Asked by newbieya on January 19, 2021

I’m new to creating music and trying to understand how everything works.
I have been trying to look for instruments I like and I just can not find any good download packs. I have even bought a couple expensive ones but it’s just not what I want.

I have recently found out about “stems” and some songs I really like have some stems available to download.
I would like to download these stems and take the instrument they use in it. For example If they use a trumpet I will take the trumpet track, cut out 1 trumpet note and re-pitch and edit it to however I like and put that in my song.

No, I do not want to make a remix. I am not taking the WHOLE track. I am ONLY interested in the instrument they use. If this is not possible then could I go onto youtube, download a video where someone plays their guitar, take one note they play on that guitar and edit it and put that in my song?

Is this legal? Do other people do this?

4 Answers

Yes. Instruments are not protected under copyright law. They're too simple.

He said instruments, not melody or something that is protected.

Answered by jgh fun-run on January 19, 2021

This seems not to be actually about taking a tiny amount of music from a music recording, but about getting a sample of a music instrument. There are people recording say individual trumpet notes, likely in various degrees of loudness, and creating an "instrument" that can be used by a synthesizer so a keyboard player can create something that sounds remarkably like a trumpet.

If I create a record and want some trumpet music on it but not hire a trumpet player, I can pay for such an artificial "trumpet". I pay a license fee, and that will give me the right to use this recording in my own music. The creator of the (digital) instrument has the copyright. My music recording is a derived work (with plenty of my own copyrighted components obviously), but with a proper license, so I am fine.

The OP isn't actually interested in a copy of my music. He wants to get the notes from the "trumpet" instrument. That's what he expressly said at the beginning of the post. Extracting the instrument will be copyright infringement, and it will be most definitely not "fair use" or "de minimis" because what he is doing is directly destroying the livelihood of the instrument creator.

Answered by gnasher729 on January 19, 2021

I can fill out with more detail later, but the Sixth Circuit held in Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005) that basically any sampling of a sound recording, no matter how short, is an infringing use.

Despite that, you may still be able to establish a fair use defense, but that's going to be very fact-specific.

Answered by bdb484 on January 19, 2021

Your question is whether you can copy instrumental portions of recorded music, and modify it to create a new work, without permission. The answer is that this is illegal. This would be creating a "derivative work", and under copyright law, only the copyright holder has the right to authorize creation of a derivative work. Whether or not you have paid for a copy of a recording, you would still need a separate license to legally extract and use part of a recording. This includes taking just one instrument, and includes taking just a part of one instrument. Material on Youtube is subject to different licenses: in some cases items are free of restrictions, in some cases, you can't legally copy them at all. The standard Youtube license does not allow any copying.

Copyright infringement of music is rather common. Enforcement of copyright must be pursued by the copyright holder, and you would need to discuss your specific plans with a copyright attorney to determine your probability of getting sued. Ultimately, you might get away with minimal copying, relying on a fair use defense (you still get sued, but you might prevail and not have to pay). There are street rumors that there is an N-note threshold for copyright infringement, where people often pick numbers from 3 to 7, but in fact there is no clear rule. This resource assembles relevant case law.

Bridgeport Music v. Dimension Films, in the 6th District, establishes the rule that any amount of copying is infringement, whereas VMG Salsoul, LLC v. Ciccone in the 9th District rejects that finding and allowed a case of .23 seconds (230 milliseconds) of copying. The "de minimis" doctrine is independent of "fair use" which has a statutory basis, but seems to have arisen from similarity doctrines which are involved in proving that copying took place.

Answered by user6726 on January 19, 2021

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