As the title says, would it be considered legal if I take a part of an audio source (any media like music, dialog, video, etc.) to use in a project, whether it is for commercial or non-commercial purposes, without contacting the owner/creator of the asset?
As an example, Earthbound used this technique to create unique and memorable soundtracks.
Copyright law varies by jurisdiction. In the US, if you plan to distribute your music, samples must typically be cleared before use.
As described on nolo (note: the italicized emphasis is my own):
Sample clearance is typically required only if you plan to make copies of your music and distribute the copies to the public. If you are just playing for your friends in a small group, you likely do not need to worry about copyright litigation from a large music studio.
Sample clearance is ordinarily not required if:
- You are just using the sampled music at home.
- You are using the sample in live shows. This is because you are probably not making copies, and the owner of the venue pays the blanket license fees to performing rights organizations such as Broadcast Music Incorporated (BMI) or the American Society of Composers, Authors, and Publishers (ASCAP).
- You plan to distribute copies to the public but meet one of the following: (1) an average listener would not notice the similarities between your end product and the sample, or (2) your use of the sample falls under the "fair use" doctrine. For more information on these, see "Defending a Lack of Sample Clearance," below. ...
Defending a Lack of Sample Clearance If you decide to use samples without clearance, you might be in the clear in certain situations. Under U.S. copyright law, you do not have to obtain sample clearance if your sample is so altered that it does not infringe on the original, or your use is a fair one.
Ensuring Your Sample Use Does Not Infringe on Copyright If you alter a sample so that an average listener cannot hear any substantial similarities between your work and the sample, there is no violation of the law. Often, musicians can be inspired by a tune, but make it so radically different from the original that the original artists (and the public) would not see the tunes as the same.
What Is Fair Use? Fair use is the right to copy a portion of a copyrighted work without permission because your use is for a limited purpose, such as for educational use in a classroom or to comment upon, criticize, or parody the work being sampled.
Factors in determining fair use. When reviewing fair use questions, courts primarily look for three factors:
- You did not take a substantial amount of the original work (say, ten seconds of a song versus 60 seconds).
- You transformed the material in some way (for instance, you added new base sounds to a melody).
- You did not cause significant financial harm to the copyright owner (perhaps you are using a bit of classical music in your heavy metal rock song, which appeals to a different market).
Do not believe the widespread myth that "less than two seconds is fair use." There is no "magic number" like this. Also, some courts apply a fair use rule only to the musical composition copyright, not the sound recording copyright. For example, one judge ruled that any musical sampling violated the sound recording copyright.
You can use the above arguments to defend yourself against a lawsuit for sampling without permission. The problem: You will not know for sure which way the judge will rule. And, most likely you will have to hire an attorney to represent you in court.
Finally, even if the Earthbound soundtrack was sampling they likely legally cleared their samples first and even if they didn't, their prior actions aren't legal justification for anyone else.
IANAL, and this is not a legal advice site. You should consult with a lawyer.
No, you can't. This would be copyright infringement, and you cod be sued for it.
