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hi folks, i need an opinion from a music copyright expert so neither the CS nor the success manager are able to give because they don't know the subject.

I'll try to be clear:
a colleague of ours, luckily not me, and my friend was banned from Fiveer, forever, because they say he infringed the copyright, bitrayed by one of his clients.

It happened that the same customer tried to put the song made on youtube and was blocked, because it is the same as another.

Talking to my friend we were able to understand why, he used a sample, free copyright and royalty free, taken from OUTPUT ARCADE, a sampler that works on the cloud, regularly bought, the same one that used another producerr, so the algorithm youtube recognized it and blocked the song.
Fiveer's client immediately reported this to CS and my friend was banned for life.

But he didn't infringe the copyright, he only used the sample, like everyone on this earth does everyday, he didn't copy a melody or an arrangement, so Fiveer is in the wrong.

Give me a lawyer opinion and be very careful to use samples taken. from libraries, someone could betray you.

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You’ll have to forgive me. Normally, I reserve the first paragraph for wickedly precise, gonzo-styled, surreal nonsense. It’s the best part of the whole damn response, so know this: you got gypped. But I’m tired, depleted from looking blankly into the abyss of midi grids and watching my soul ascend by chunks with each hour of non-sleep. Also, you’ve got quite a serious scenario and I’m going to do my best to navigate some of it. 
 

Let me preface the rest of this response by saying: I am not a copyright lawyer, entertainment attorney, agent or subway sandwich artist. I don’t claim to be the industry leader of definitive copyright law. Though, to be fair, none of the entertainment lawyers I’ve ever met did either.

I’m fairly certain they just Google things, case by case, and bill you for the meetings. I wish that joke were less truthful. 

I am, however, the go to forum songwriter in matters pertaining to copyright and especially in the realm of freelance. I’ve dealt with vast situations in and around the music and entertainment industry - and plenty of publishing variations as it applies to thirds parties, social content, production firms and now here we are with the rise of monthly library “rights transfer” issues.

Let me get to the super bad news first:

Your friend probably isn’t coming back to fiverr.

I'm not claiming he did anything wrong. I’m not even claiming this situation doesn’t boil down to two companies mistakes. But we tend to overlook our role to fiverr in favor of Fiverr’s role to us. Fiver, like google, is a company. With boards, shareholders, leaders and company interest. They’re going to travel the path of least resistance based entirely on the volume of discrepancies, quality of the case and overall significance of the individuals involved. And at the end of the day - the free market makes it so. It’s their business, both fiverr and Google respectively - and if they choose to eliminate a perceived problem, that’s completely within their right. That’s the cost of doing business. Even when the cost is unexpected and totally out of line.

But…

Its entirely possible that your friend has a technical issue. This is the transfer agreement according to Output:

“License

All Audio Content Files are licensed, not sold, to you, royalty free. You are granted a non-exclusive, non-transferable, perpetual right to use the Audio Content Files within Arcade in combination with other sounds in music or video productions. Therefore, subject to the License Restrictions, you may modify, reproduce, publicly perform, distribute, transmit, communicate to the public and otherwise use the Audio Content Files, including for commercial purposes.

The legal rights to all Audio Content Files within Arcade are owned by Output or third parties who have licensed audio content to Output for this specific use.”

So, two unique things are happening here.

1) Output is holding you to the standard of using their samples to incorporate into a production.

2) Output is considering anything that operates outside of a “combination with other sounds” to be a violation of their licensing restrictions.

It’s extremely likely that your friend downloaded an Arcade kit, took every sound from the kit, used no other sounds, created a song that replicated the example’s featured on the kit - and sold it to a client. Output goes on to talk about that scenario here:

“License Restrictions

You may not use the Audio Content Files or Arcade, including the User Interface, in a manner competitive to Output or its licensors. You may not sell, loan, share, lend, broadcast, rent, lease, assign, distribute, or transfer the Audio Content Files to a third party except as incorporated into a music/audio production.”

Output considers selling these exact models of their kit an engaging of competition. There’s no real difference between selling “loops” as a library or selling the “loop” as an original piece. If the loop isn’t distinct from its beginning point, output is likely to consider the action as competitive and a violation of their agreement. The tricky part is navigating the language found in this passage:

“Ownership

Subject to the License Restrictions, you shall own the intellectual property and copyright of any User Generated Content, for example a music/audio production, you create using Arcade and the Audio Content Files.”

So, if you use some of the sounds with some of your sounds - you wrote the composition. If you used their sounds how they were originally recorded, in a kit, as it was originally featured on arcade - they wrote it.

And it has to be this way. We recognize copyright as involving melody, arrangement and chord structure. Allowing users to sell Arcades chord structures without manipulation would result in 1000’s of people copyrighting the exact same instrumental. And being that someone has to own that composition to prevent this from happening, Output has copyrighted and claimed audio publishing on those kits as they’re originally featured.   

If this is starting to sound like Output is going to find themselves in an absolute litigious nightmare … well, yes. That’s exactly right. As the monthly library system continues to dominate - lots of folks are going to find themselves in this situation. It’s absolutely crucial to restructure the chord sequence, alter samples and add your own instrumentation. Which means that in a not so distant future - Output is going to have their hands full.

Now, maybe your friend didn’t do anything to violate their agreement. Perhaps he did record his own arrangement and somehow found himself flagged for a specific sound. I’d find that hard to believe, as I don’t know how YouTube’s algorithm could decipher one non-isolated sonic event, but in that case - he will have been in the right.

In terms of fiverr … look … I love me some fiverr. But Fiverr’s ability to navigate publishing law inside the design of creating rules for general commerce is taxed. Just look at the flippant use of the term “commercial rights.” That term is reserved for the allowing of one entity to profit from the distribution of audio as created by someone else in a “commercial setting” and normally “for use” only. But Fiverr’s entire TOS would have you believe that “commercial rights” and “copyright” are interchangeable. Not only are they not interchangeable, they have nothing to do with the other in and of that sense. 

Needless to say, it’s difficult to explain these matters to someone that you’re introducing them to. Especially if your understanding of the concepts are limited.

Its going to boil down to that technicality. If he used a kit and it’s chord progression in full … well, that’s all she wrote. But if not, my next step would be to reach out to the audio department for a meeting. If I can get access to the two pieces - I can see what side I fall on and if the works are not duplicates, I can see about attending the meeting with you and talking to some of the kind people (person) I’ve met in that department.

On the other hand, if both pieces are the same - then both sellers violated outputs agreement and nothing can be done. 

Edited by damooch916
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