Specifics of Copyright/EULA (Section 5c)

[OWimOWe]

I couldn't find a more advanced discussion of Section 5c of the EULA, which has some important clauses about using the software to make compositions.

The key section is this:
"You may however use the presets, sound samples or musical examples contained in the Software to create your own original musical compositions, provided that additional material is added, and the respective presets, sound samples and musical examples will be significantly transformed."

Here are some questions that come to mind:
1. "Additional material is added." So, if I use 6 Ableton sounds/samples, rhythmically and melodically composed, but there is absolutely nothing else added (no vocals, no samples, no outside software or synthesizers), did I add additional material? (ie. is the fact that I arranged these sounds in an original order enough to say that I "added" something?)
2. "The presets [and] sound samples will be significantly transformed." I doubt Ableton is actually suing many people for stuff like this, but in theory this clause sounds surprisingly restrictive. Suppose that for every sound I put in, I like the preset exactly as it is (I don't want to turn filter or tone or anything even 1 degree off of the preset), can I still make an original commercial composition just using a few sounds exactly as they are programmed? Similar to 1., does me arranging the sounds in my own order transform them? Because it doesn't transform the actual sound or preset, only the timing or tonality in which it is played.
3. Relevant to (2) above, what is "significant" exactly?

Maybe these questions seem lawyerish, but here are some examples:
1. Some instruments already have a lot of rhythmic elements or arpeggiation which would make them reasonably easy to identify. There are lots of examples, but one I heard recently was "Neptune Ascending" if you want to hear what I mean . Suppose I just play this pad on a C for 4 bars (it makes a certain arpeggio), and maybe add a simple kick and snare beat. The song will hardly be amazing, but in theory, if this were released as a commercial composition, could it be argued that this went against the EULA because the sound was not "significantly transformed"?
2. I haven't played much with the grooves and swing functions, but this seems like another grey area. Clearly you cannot use the demo songs, but a groove is essentially a composition. So if you use a groove without changing it (or only changing it a little bit) could this be considered copyright infringement or against the EULA?

Thanks!

[jestermgee]

Well if in doubt you could send your completed commercial track to Ableton to make sure it's good before release but I think you are overthinking things as the content is designed for your use. As long as you are not simply making a direct loop copy of the content and selling it on (such as in a sample pack) then you would be fine. There is no need to worry about using a preset sound and not changing it, as long as you have your own melody and not just a single sustained note on its with intention to onsell that or use multiples of them to recreate an instrument.

Number 2 is also not a worry since you can't really copyright a groove or "feeling". You need to use your own sounds with a groove so as far as you are concerned it's original enough and you are just changing the feel with a groove. It would be like saying you cannot use an ARP preset because it was designed by someone else.

[OWimOWe]

Thanks for the reply. Yeah, I'm not using the sounds in my own software or selling sample packs or anything dumb like that. That part of 5c is clear enough and anyway it immediately strikes me as unethical. But the part about "significantly transforming" the sounds/presets when creating compositions just seemed excessively restrictive in the language. I imagine they use this language for some legal reason of protecting the sounds/software, not to limit composers.

I agree that using a programmed arp would generally not mean that the designer of the arp would be the "actual" composer, but I thought it would be interesting to hear people's viewpoints on where the limits are. For example, would it be theoretically possible to combine sounds/grooves in a way where Ableton's lawyers could argue that their sound designers essentially "composed" your song. I am not saying they would do this and I'm not actually worried about it, it's just sort of interesting to think about.

[TLW]

I’m not trying to be awkward or dismissive, but if you want a legally definitive answer to your questions, rather than gathering the opinion of members of a forum who may or may not be legally qualified or, perhaps excluding the mods or any Ableton employees, not empowered to speak on behalf of Ableton I suggest you email Ableton directly with your questions concerning the EULA.

Alternatively, hire a lawyer who understands copyright in the context of the music industry and sample usage and ask for their opinion.

[OWimOWe]

I thought mods or Ableton employees might read these forums sometimes.

I am not particularly worried about any of it and certainly don't plan to consult a lawyer. I'm just a person who reads the fine print sometimes and wonders about it *shrug*

[pottering]

That wording is pretty standard across the whole audio software industry.

You should check the EULAs for all the other stuff you have (plugins, samples, presets, etc.), you will see similar clauses everywhere.

[Tarekith]

I thought mods or Ableton employees might read these forums sometimes.

We do, and I'll pass it on to see if I can get some clarification for you.

[Tarekith]

Here is the answer I was given about this topic, sorry it took so long for a reply:

-----------

To answer the user, I think it is important to emphasize that users are of course free to use samples even without changing them. BUT in this case they will not become the copyright owner of the samples/presets/and so on. Individual sample content may not be commercially or otherwise distributed on a standalone basis.

So what to do to become the copyright owner? You have to create something new that overcomes a certain threshold of originality (https://en.wikipedia.org/wiki/Threshold_of_originality).

According to our EULA, you have to do two things:

1. You have to add additional material, which can be samples / presets / etc. from Live
2. You have to “significantly transform”.

Problem here: there is no definite definition of “significantly transformed”. There are definitions like “transformative is something new, with a further purpose” or “different character, altering the first with new expression, meaning, or message”. But I don’t think this makes things any clearer.
We can’t give our users a manual on how to transform our samples. Transformation is a creative process and whether the user created something new is always a case by case question so there is no definite answer.

But again, our users are allowed to use the samples – we grant non-exclusive user rights.

[JoshuaCLove]

I have made a track for the NBA 2k20 game coming out and UnitedMasters contacted me today about not clearing samples and requiring documentation or master-use agreement. The singing in the song is me and my friend and the samples used are from within Ableton, altered a great deal from their original form as well as horn sections from Native Instruments. I am not sure what information I need to send them as the track was entirely composed through the samples in the Ableton library (along with Kontakt factory library). I am not sure what agreement or license I should be providing. Could this be an error on their part? erring out of caution?

[Tarekith]

If they are altered a great deal, then you're already complying with the Ableton EULA. Not sure what kind of documentation you would need, but the best I can do is suggest you contact support@ableton.com for any further clarification.

[stringtapper]

Number 2 is also not a worry since you can't really copyright a groove or "feeling".

Would that it were not so, but this is becoming less true because of recent legal cases like the Pharrell/Thicke and Katy Perry decisions where musicologists who are otherwise well-schooled in their field appear to be making cash grabs to give testimony that contradicts centuries of musical understanding.

[jestermgee]

Yeah, IMO copyright claims have gone insane. It's almost impossible to use or make anything without someone claiming it's derived from their work and they should be paid. It's completely detrimental to creative arts and while I can sympathise with people that lose income through blatant theft, it simply seems these days suing people for copyright is the new way to generate income which I guess is needed when you your pop career is just a flash in the pan.

[Harmonic Progression]

I have made a track for the NBA 2k20 game coming out and UnitedMasters contacted me today about not clearing samples and requiring documentation or master-use agreement.

The master-use agreement might be the EULA. If so, you could just provide a copy of that for each instrument sample or VST that you use.

The singing in the song is me and my friend and the samples used are from within Ableton, altered a great deal from their original form as well as horn sections from Native Instruments.

The Native Instruments samples are probably good to go, but your customer may still require something in writing.

I am not sure what information I need to send them as the track was entirely composed through the samples in the Ableton library (along with Kontakt factory library). I am not sure what agreement or license I should be providing. Could this be an error on their part? erring out of caution?

I highly recommend you contact an attorney who specializes in copyright/entertainment law. Meet with him or her for an hour and lay it all out. Yes, it will probably cost you a few hundred dollars to do this, but it can save you a lot of trouble down the road.

And it can help you avoid being blacklisted, either overtly or covertly. Consider this fictional conversation in the offices of any major or independent game maker:

Executive 1: "Hey, I'm looking for a composer for this great new game we're planning on for 2026. We want a combination of pop, jazz, and a couple of big soaring thematic orchestral pieces. Got any suggestions?"

Executive 2: "How about that guy Joshua? Man, he and his band did a bang-up job on NBA 2020 those few years ago. My kid still loves that one and the music was amazing. You should see if Josh is interested."

Executive 1: "Well, yeah...we could. But it'll take a lot more effort with him. Do you remember the copyright hassle 2K Games got into with NBA 2020? 2K had to pay thousands in court fees and legal costs. All over the samples for a single djembe."

Executive 2: "Oh yeah, I'd forgotten about that. Well, what about Waylon Jennings?"



A brief chat with a good attorney up front can save you money and (maybe more importantly) help you avoid future lost opportunity. And will probably be a lot cheaper than you're thinking.

[TLW]

A cheaper approach would be to join the local musician’s trades union/association (Musician’s Union in the UK) and ask their advice.

They may still suggest talking to a lawyer, but at least can point you in the direction of a lawyer who understands the specific legal issues involved and charges a reasonable fee. They can usually also offer a lot of helpful advice about all kinds of stuff musicians and composers can run into.

[cmkadmin]

Next up in the Keystone Kopyright Kop Kapers is harmonic progression. Ed Sheeran is the first victim in this test case where 9 people who know nothing about music get buffaloed by so called experts into destroying centuries of precedent.

Chord progressions, yeah that’s the endgame. They get that it’s over. Indeed, with the two mentioned cases, it may already be over as songs in ANY genre are, well.... substantially similar.