cautionary-tale

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Birth of an illustration…
I do not have a smooth creative process. I often have a very clear idea of what story I want to tell, but seldom do I know how I want to tell that story. I’m eternally unsatisfied and that’s one of the main reasons I stopped working in photoshop (except for sketches) and moved to ink, to allow a piece to be finished, which I never felt like it was in photoshop and I spent hours upon hours tweeking and making tiny touch-ups that no-one except me would notice even with the two versions side by side.

I did a total of fifteen different compositions for this particular illustration, ranging from three minute sketches to more polished renders. Also ranging from terrible to alright. On some I strayed pretty far from the original idea I had in mind.
I would’ve done sixteen if I hadn’t been left with three days ‘til deadline by the time I got to number fifteen. 
I ended up going with composition number fourteen which is the one you see at the bottom.

It’s important to try out different compositions but don’t lose sight of what you set out to draw in the first place. Try to limit yourself to four, maybe five thumbnails, lest you end up like I did and waste two weeks on stuff that leads nowhere. It’s not that bad if you’re working on a personal piece (or semi-personal, as was the case here) but if you’re working on a deadline, you’re going to drive yourself –and the art director– crazy. 

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Official Teaser Trailer for Dynamite: A Cautionary Tale

Just In Time For Halloween.

Or : How Scylla became a Local Ghost Story.

One night I had Serious Work which needed doing. The place I needed to go required taking a specific route, which (despite all my best efforts) involved a bit of a walk along the highway. NOTE: This is shit I just don’t do. If I have to walk I stay in the woods, no question. I walk on foot, I carry a backpack with provisions and a light, but I NEVER use it. I am a ninja when I Go Witchin.

I had made it there, completed my ritual, and was on my way home when a truck crested the hill. I realized I’d been seen when the truck slowed down, and pulled to the shoulder. “Do… you uh need a riiiiiide?” the man asked. His tone displeased me.

Bright red warning lights flashed in the back of my head and I realized I had the thinnest opportunity. “No thank you, sir. Car stalled. I live just down the way.” - I said in the most Southern voice I could muster. I pointed limply down a nearby road. He turned his head and I took that chance to literally dive into the woods off the roadside and get behind a tree. I hoped the light-blindness he’d have from his headlights, plus the engine idling, would hide my trail.

I’m breathing into my sleeve and praying he doesn’t get out to come look for me and I hide like a champ. I’m chanting “House full, room full, can’t catch a spoon full.” over and over in my head. I’m thinking every “black and hidden” thought I can. I hear the man shriek in terror “JESUS CHRIST WHAT THE FUCK!?” I hear tires spin and gravel spit as Mr. Redneck takes off at ninety-to-nothin.

About five years later, I’m at the local bar around Halloween and hear a few gentlemen ribbing their friend about “his ghost”. He proceeds to describe driving home one night “years ago” and seeing a woman walking on the roadside. He thinks she’s pretty and wants to “take her home”. That she looked normal until he looked  off toward where she said she lived. When he’d looked back at her, he saw black smoke rushing away from the road into the woods, and saw glowing eyes.

So, that’s how my sketchy-witch-ass became a ghost story.

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Aldnoah.Zero Ep.01 | Princess of Vers
“I wished that people all over the world would get along and live in peace!”

A few weeks ago, my uncle told me that my father used to be quiet, sensitive, and a romantic. He told me that he became bitter when things didn’t turn out right. My uncle could’ve been talking about my father. He probably was, only that I’ve never heard anyone describe my father as quiet, sensitive, and a romantic. I’ve heard people describe me in those terms. Let’s say that maybe my father was like me when he was younger and that maybe he did become increasingly bitter and maybe one day he just gave up. Lately I’ve wanted to know the series of events that led up to him giving up. My father and I look alike, we have the same interests, and I think of him as my cautionary tale.
—  From this week’s edition of Links I Like by Zoë Ruiz.
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Internet Story by Adam Butcher

(from a diary entry // tw: drugs)

the ritual is the best part. start with the dealer. wait around, drive across town to that side street, open the window - throw the money and catch the pills. take them home. clean off the antique mirrored tray. grab the prescription bottle from the dresser drawer next to your bras. open it - take out the piece of hose clamp, the razor blade, pick a straw. what’s your favourite colour today? grind the pill on the hose clamp into a dusty powder. whatever can’t be ground up, smash with the prescription bottle lid and cut up finely with the razor. use the blade to scrape it all together into one or two or four lines, depending on the day, and pick up the straw. stare down at yourself in the mirror and feel awful. put the straw in your nose, plug the other nostril, SNORT. gently. taste the drip, sniff a few more times for good measure, scrape off the clamp, blade, and straw for a tiny bonus line. sit back and feel less awful. taste the chemicals and the rust and pray for the nod. let it take you over. relax. breathe easy. love everyone. don’t let anything touch you. roll your soul in powdered pills and let them protect you. feel ok. be ok.

Sampling - A Cautionary Tale

I used to be a music lawyer and I was a bit of an authority (for a while) on sampling and sample clearance in the early ‘90’s.

Then I ran a bunch of dance labels and worked with a lot of electronic artists.

I have cleared a lot of samples but I have released way more records with samples in them that we didn’t bother to clear.

Why?

Because we thought that no-one would notice that we’d used their music - these were generally small specialist underground records - and that if they did, we would be able to agree something after the event, if the need ever arose.

The reality is that it was too much bother and too expensive to try and clear a sample of an obscure and hard to find piece of music or of a snippet of a big successful tune when you knew that your record was going to sell just a few thousand copies - i.e. we felt at the time that the risk was well worth it. And hundreds of thousands of records have been released with uncleared samples in them.

Will I get sued for using a sample?

There are very, very few cases where someone who samples a record ends up in court - and there’s two reasons for that.

If your record containing an uncleared sample goes from being an underground momentary thing of interest to a limited audience to about to become a radio/commercial hit of any scale, you will quickly clear or remove/replace the offending sample(s). Well, you will, or the indie or major label that have come to sign your record will do it for you.

It’s when a record appears on everyone’s radar that it becomes time to clear it. At that point, if you don’t, you’re going to be in trouble. Remember the adage ‘“Where there’s a hit there’s a writ” - it is the absolute truth.

Secondly, if your record contains a sample and you didn’t clear it, you are infringing the original owner’s copyright - and they have you ‘bang to rights’. If they do discover your small scale release and if they care enough to contact you and point out your infringement, then in most cases they can see that going to court is pointless as you, the sampler, won’t have any money worth suing you for!

So, generally they approach the sampler and point this fact out and you work out a deal. Hence, court case avoided.

What is sample clearance?

When you sample another person’s music you are reproducing two different copyrights - the recording itself but also the underlying musical work (the song - that part which a music publisher deals with, rather than a record label).Leiber & Stoller go over a song with Elvis Presley

For those that find that a difficult distinction, think of the days when all pop stars sang songs written by songwriters. Think Elvis and Leiber & Stoller.

Leiber & Stoller create the copyright which is the song - it can be written on sheet music before it is ever performed and recorded. Then, when it is performed by Elvis, he (or his record company) have created another different copyright in that recording of that performance. Every new and different recording is a new copyright.

Hopefully you can see that these two copyrights give rise to two income streams - one for the song and one for the recording.

Leiber & Stoller get paid for every radio or live performance of the song (whether that is a spin of the recording or Elvis singing live) and they get paid for every record made (that’s called a mechanical royalty and is paid by the record company - more on that another day as that get’s confusing!). Elvis only gets paid for every record made and sold - that’s the record royalty. (Just to confuse you some more, many countries, but not the US, do have an airplay royalty for the recording as well).

So when you sample a piece of that recording, you are also sampling the underlying song and you need to get the permission (or ‘clearance’) of all the owners of the copyright in the recording and the song. That means contacting the record company that owns the recording you have sampled but also all the songwriters and/or their music publishers.

Generally the record company will take a fee (perhaps tens of thousands of dollars) and a per unit royalty for every record sold and they may well impose limitations on the use. The songwriters and music publishers will usually take a percentage share in your new song that has sampled theirs. The amounts being down to negotiation.

The thing is, they have you over a barrel.Bitter Sweet Symphony’ was one big sample Once you have sampled their work and told them, they can ask for whatever they want.

The Verve gave 100% of the song ‘Bitter Sweet Symphony’ to Jagger and Richards as it sampled a version of one of their songs. Interestingly the recording that they sampled wasn’t the Stones, but an orchestral version by someone else. Read more about that case here.

Once you have the agreement of the copyright owners of the song and recording, you’re set.

This existence of two copyrights also explains the very common misconception amongst musicians that they do not need to worry about sample clearance if they ‘re-record’ a sample. True - if you re-record the sample that you lifted from someone else’s record, you don’t need to clear the recording, because you have made a new one and you own the copyright in that. But, your new recording still reproduces the underlying song and therefore still infringes that unless you clear it. Re-recording deals with half the issue, but don’t forget the other half.

How much is too much?

Usually, any little bit is too much.

In fact, the law and exactly how it is applied depends on where in the world you are. There are treaties between countries that aim to apply essentially the same copyright laws throughout the world but there are specific differences.

In very general terms you are infringing the rights of another person’s copyright if you ‘substantially reproduce’ their work. And the definition of what counts as being ‘substantial’ is usually not set out in a country’s relevant copyright law (the Acts or Statutes) but is based on interpretation by judges in cases that go to trial. Then future cases refer back to the decisions in prior trials - this is what is called ‘case law’.

However, since most cases don’t go to trial and get settled or negotiated long before a judge gets to deliberate, there are very few cases that a judge can refer to for guidance. Those few that have gone all the way in the UK and US have led lawyers to err very heavily on the side of caution and that is upheld by the way and the levels at which all involved negotiate clearances on a day to day basis.

In other words, the person being sampled whose permission you are seeking has all the cards.

If you have sampled a single recognizable note, this may well be seen to be ‘substantial’. If any reasonable person listening to your new record could tell that you have used a sample, then it is almost certainly a substantial use and legally requires clearing.

But you can take the drums only from a track and that’s fine, right? Err, no. Probably not.

If you have sampled a recording you fall at the first fence since you cannot deny that those drums (or whatever part you’ve taken) come from the other person’s recording. Given that admission, even the smallest section is probably enough to require permission. I can’t be sure, as it takes a final judgement in a court case to get the definitive view, but should you risk it?

In the real world, if you’re a small-time artist, you may well do just that. And I wouldn’t blame you.

As I said above, hundreds of thousands of records have been released without clearing samples and almost all ‘get away with it’ - particularly so if the release is small-scale and no significant money is made.

But, it is extremely important to note that if you get sued the amount of a claim by the person you have sampled, in most countries, need NOT be related to how much you made from releasing your infringing record.

The decision by a judge to award damages to the person you sampled is usually equated to the loss they have suffered rather than the money you made. And that loss can be based on anything that they can argue. Sure, often it does refer to the amount you made from releasing your infringing record, but not always.

The cautionary tale

So, this is where you get to see what happens when it all goes wrong!

At the end of last week a Danish court case concluded that two musicians who had made a record in 2003 by using a sample had infringed the rights of a songwriter and a record company and ordered them to pay damages approaching $150,000 - way more than they ever made from the record.

This is enough to finish their careers and affect them for the rest of their lives. Read all about the Djuma Soundsystem case here. This case could be reversed on appeal and, depending on where you live, it is unlikely to be used as ‘case law’ in your country and therefore it won’t lead to a swathe of sampling cases against the little guy.

But it is a reminder that any one of the hundreds of thousands of records that have been released (or are going to be released in the future) with uncleared samples and which the artists think are going to be small scale successes, could lead to you being sued.

Should you worry? No, I don’t think you should, but you should be aware.

I think the Danish case is unlikely to be upheld and the guys were very unlucky that it didn’t get negotiated to a settlement that they could afford before going to trial. In almost all cases this would have been resolved before going to court.

And, of course, if your release is likely to be a commercial success, do deal with any sample issues before release. Success brings attention and people will then sue and they will push hard for a very stiff deal if you ignored their samples! Just remember that if you sample a record then the basic position is that you are infringing the rights of two sets of people and that could come back and bite you in the ass.

Sample clearance is the answer but we all know that in the real world that’s not always going to happen.

Hopefully, forewarned is forearmed!

Article originally appeared on Music Think Tank (http://www.musicthinktank.com) and was written by Ian Clifford.