Oh Timbaland!

09 July 2009

Dear Mr. Timothy Mosley,
I must say, I am a bit surprised. You’ve been in this game long enough to know better than this. You’ve been a producer nearly 15 years now, you ought to know all about sampling.

It’s not that you’re being sued (again) for copyright infringement – that happens to even the best of them – it’s your comments in response that make me shake my head. Before we take a look at those, I want to let you know that I am aware these comments are from 2007, when the video comparing your song and the Finnish song you allegedly used first appeared on YouTube. I am also aware that a Norwegian court has already dismissed a case about the two songs, which is now on appeal. It’s quite possible the Flordia court will find no substantial similarities or no access for copying – a friend of mine listened and said they didn’t sound alike – but, that still does not excuse your comments from 2007, when this whole mess started. Let’s go over those, shall we.

"That mess is so ridiculous." "I can't really discuss it because it's a legal matter. [And that is where you should have stopped.]

But that's why people don't believe it. [I’m not sure what ‘it’ is, so we’re going to leave this alone.]

It's from a video game, idiot. [Bad move, you just ruined one of your defenses. You admitted to having access to the allegedly infringed work. The person bringing the lawsuit, Glenn Gallefoss, claims the song was done for the Commodore 64. My family has one of those, it’s a computer, used to play video games. However, there is hope. If the video game you are mentioning came out before the allegedly infringed song, you might be able to show that Gallefoss (and the original creator, since Gallefoss remixed, Janne Sunni, actually took the song from a game themselves. ]

"Sample and stole is two different things. [That depends on whether or not you cleared the sample, and judging by the lawsuit, you didn’t.]

Stole is like I walked in your house, watched you make it, stole your protools, went to my house and told Nelly, 'Hey, I got a great song for you.' [Yes, that is stealing too, even without taking the protools with you.]

Sample is like you heard it somewhere, and you just sampled. [If that sample isn’t cleared, it’s still stealing. As you should well know, being a creator yourself, creators automatically get certain rights in their works, the moment the works are created. These rights – we call them copyrights - include the sole right to copy, publicly perform and make derivative works. That’s why there are things called licenses. I assume you’ve heard of licenses, and I’d bet a lot of money you frequently get paid for them from organizations like SoundExchange and (if you write as well as produce) ASCAP. Licenses are how creators arrange to let others do the things only the creators have the right to do. If I create a song and you want to make a derivative work from it, I license you that right for that work and you pay me a licensing fee.]

Maybe you didn't know who it was by because it don't have the credits listed." [This, Mr. Mosley, is called an orphan works problem. There’s been a lot of debate about orphan works lately, including in Congress. Orphan works are works for which the creator is unknown or unable to be found. Basically, the work has no parent, hence the term orphan. Just as it’s very hard to ask a parent you can’t find if his child can come out to play, it’s very hard to ask a creator you can’t find for a license to his work. Unfortunately, it does not also mean you can just use the work.
Part of the reason there are so many orphan works now floating around is the very long term of copyright and the effects of the retroactive Sonny Bono Copyright Extension Term Act. One solution to the orphan works problem would be a shorter copyright term. (Did you know it was originally only 14 years?!) But somehow, as a music producer, I’m guessing you’d be against that.]

This might sound sort of bleak, but don’t give up. There’s plenty of music out there that you can sample all you want without having to worry about lawsuits. First, there’s something called the public domain. This might be a bit hard to sample because you will only be able to use very old sound recordings of even older songs, and that’s only if the sound recording copyright owner didn’t renew their copyright (another mess from extending copyright terms.) Figuring out what’s in the public domain can be almost as much hassle as trying to license something that isn’t.

There’s an even better option. Check out ccMixter. It’s a place where people put music they want others to use and sample. You don’t have to license the music because the creators have already licensed it using Creative Commons licenses. These licenses say specifically what others can do with their work. Just don’t use anything that has an “nc” license it; that means no commercial work, and you, my friend, do commercial work.

As for the law suit, don’t worry. You’re very rich, so I’m sure you have very good attorneys. (Although, that didn’t help P.Diddy.) Just keep your mouth shut.

Sincerely,
goldenrail

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Anonymous said...

"a friend of mine listened and said they didn’t sound alike"

The C64 parts sounds similar as demonstrated in this video

http://www.youtube.com/watch?v=rIEijimuzr8

February 22, 2010 at 3:24:00 PM PST