The answer is – surprisingly – possibly yes.
Today I have two real-life stories to tell. The first is of a simple drum loop. Here it is…
Clearly this drum pattern is just about as generic as things get. Of course I’m not a lawyer so you can’t take anything I say as being reliable, but I would hazard a guess that anyone who claimed copyright in something as generic as this would get thrown out of court.
And imagine if copyright were upheld. How many thousands of songs could the claimant lay claim to?
So would anyone ever try to claim copyright on a generic drum pattern like this?
Er, yes. Here’s the story…
So one day I got the urge to make a YouTube video. Well that’s pretty much every other day so nothing unusual there. Here it is (the player will start from a section of particular interest – you only need to listen to ten seconds or so)…
Yes it’s that generic drum pattern. I recorded it using the Steven Slate Drums virtual instrument.
Now there is a copyright in this and that is Steven Slate’s copyright in the original recordings of the samples. I’ve been struggling to find a copy of the EULA (End User Licence Agreement) but when I do I’m darned sure it will say that I can make any music I like with the instrument, which of course is its entire function and purpose, but I can’t resell or give away copies of the samples. [UPDATE: The EULA is only visible on installation. A representative of Steven Slate Drums tells me, “Hi, unfortunately no, we don’t have a written one.” Go figure.]
There is another copyright here however and that is in my recording. I pressed the buttons that caused that pattern to be embodied as a WAV file and that automatically gives me copyright in my recording.
So, without this getting too complicated, the drum pattern is generic and there can be no copyright. Steven Slate’s company owns the copyright to the samples. I own the copyright to my recording.
So I have all the necessary copyrights and licences to do as I please, which includes using the pattern as part of the soundtrack of my YouTube video.
So I upload, and…
Within seconds I get a copyright claim. Here are the details (control-click the image for a larger view)…
And you can play the movie of the offending section…
In reality what has happened is that an automated system has matched my generic drum pattern with someone else’s generic drum pattern and submitted a copyright claim without human oversight.
I have of course challenged the claim and in all probability it will be released at the end of the 30-day period. If it isn’t then there isn’t much I can do in practice. I will of course take the video down out of sheer spite that someone else is getting ALL of my advertising revenue. All $0.02 of it.
Can you copyright a sine wave?
So if someone thinks they can copyright a generic drum pattern it isn’t at all unlikely that someone will think they can copyright a sine wave.
Well yes – my famous video Can you hear the difference between a sine wave and a square wave? got copyright claimed by a production music publisher who had a track that consisted of test tones.
But no, of course you can’t copyright a sine wave. It’s a mathematical function and you can’t copyright functionality. In any case, the sine function was discovered more than a thousand years before copyright was invented. Needless to say the claim was released.
Well what about white noise?
Well noise is a fundamental feature of the universe. Trying to copyright noise would be like trying to copyright the electron. White noise places a layer of maths on top that says that it has equal energy at all frequencies. Pink noise has equal energy in equal logarithmic bandwidth intervals (so Mr. or Ms. Expert – You try defining pink noise in seven words!) It would be hard to imagine that you could copyright pink or any other color of noise. Now trademarking it… Let’s not go there.
So no. The sine wave and white noise contained in my two recordings above are not copyrighted.
So feel free to…
Hold your horses! I said there’s no copyright in the sine wave or white noise. But don’t forget that there is a separate copyright in any recording. I made these recordings and that entitles me to claim copyright in them. Anyone using either of these recordings in their YouTube video could be liable to a copyright claim initiated by me. And I’ll take all of your advertising revenue.
But a) it wouldn’t be practical, and b) I’m a nice guy who just wouldn’t do that.
In any case, it would be extremely difficult to be sure that any recording of a sine wave or white noise was a copy of mine. In the case of the sine wave there are more than 16 million different levels the wave could peak at for any one frequency. A recording of white noise might be identifiable, but probably not once it had gone through YouTube’s audio-mangling system.
So just to be sure, I hereby place the recordings embodied in this web page of a sine wave and of white noise into the public domain.
See – Now no-one can copyright them!
One more thing…
I did say earlier that I’m not a lawyer. Everything I say is therefore just opinion. But that’s true of even the most highly qualified attorney, solicitor or barrister. Whatever they say is just opinion.
It isn’t until an issue goes before a court that the cold hard facts are judged and the case is settled one way or the other.
And even then there may be an appeal to a higher court – all the way up to the Supreme Court of the land.
And even then there’s a higher authority to which all without exception must eventually humbly submit…