Users occasionally reach out to ask why some projects are under CC0 vs. CC BY and what that means for their obligation.
While I am not a lawyer and cannot give legal advice, the CC license empowers me as the copyright owner to make determinations about how to apply and interpret the license and this article exists to set in stone our interpretation regarding CC BY.
To summarize, some users confuse ‘end use’ with ‘derivative works’ when in reality these are legally separate things, in the same way that watching a TV show is legally separate from making a fan edit. They argue that any interaction with the work that results in a ‘product’ is by definition derivative, and that CC BY is not “truly free” because in their strict interpretation, everyone must provide attribution always when using the work, but we disagree. Let’s look through the license and try to see if we are “wrong”!
Usage is Not Derivative Work
It is our decision that no attribution is required for end users (i.e. composers, producers, orchestrators, musicians, etc.). The attribution requirement applies to derivative works, i.e. sample libraries which use the samples from Etherealwinds Harp II (or our other CC BY libraries).
This is based on the precedence of hardware sampler/synth presets, where the preset (i.e. code and/or samples) may be restricted or even copyrighted outright, but their usage by end users is broadly permitted under a EULA/TOS or similar, without the need for attribution or royalties. Why should presets for softsynths/samplers be considered any different?
What is Licensed Material?
According to the CC BY license, attribution is only required “If You Share the Licensed Material (including in modified form).” with Licensed Material defined as “the artistic or literary work, database, or other material to which the Licensor applied this Public License.”
The licensed material is the set of samples and the associated code (.sfz file) which form the instrument. So, your composition or arrangement does not directly share the licensed material (e.g. literally embed the sample library with your song) so that rules out needing to attribute me there. This is like the difference between writing a song where you use a softsynth vs. send your friend a copy of the softsynth plugin in its entirety. The difference here is massive and very obvious.
So, could your composition/arrangement count as being usage in ‘Modified Form’? Let’s thus now examine adapted material, i.e. derivative works.
What is a Derivative Work?
The CC BY license specifically defines: “Adapted Material means material subject to Copyright and Similar Rights that is derived from or based upon the Licensed Material and in which the Licensed Material is translated, altered, arranged, transformed, or otherwise modified in a manner requiring permission under the Copyright and Similar Rights held by the Licensor…” “…Adapted Material is always produced where the Licensed Material is synched in timed relation with a moving image.”
Thus Adapted Material, i.e. material derived from the licensed work, requires you to transform, arrange, or alter the work in order for it to be considered adapted material, OR for you to specifically be composing for moving images, e.g. scoring a film. As a user does not alter the work to use it (i.e. you are using it within the expected scope as an “end user”, just like a household appliance, musical instrument, etc.), your work is in fact not Adapted Material and thus is not subject to royalties nor require permission of the Licensor. Your work does not involve sharing the Licensed Material in a modified OR original form, end of story.
What about Porting to another Format?
From the CC BY license, “Media and formats; technical modifications allowed . The Licensor authorizes You to exercise the Licensed Rights in all media and formats whether now known or hereafter created, and to make technical modifications necessary to do so. The Licensor waives and/or agrees not to assert any right or authority to forbid You from making technical modifications necessary to exercise the Licensed Rights, including technical modifications necessary to circumvent Effective Technological Measures. For purposes of this Public License, simply making modifications authorized by this Section 2(a)(4) never produces Adapted Material.“
Thus simply using the software (i.e. “exercising the licensed rights in all media and formats…”) does not constitute Adapted Material, nor does porting the samples to another format for your personal use if you need to for technical reasons, and thus is not a derivative work requiring attribution.
Lastly, in Interpretation: “No term or condition of this Public License will be waived and no failure to comply consented to unless expressly agreed to by the Licensor.”
Thus I as Licensor have the final say to waive or choose to enforce or not enforce any terms of the license, and to interpret them as I wish.
TL;DR, You can and should use the harp however you wish provided you are not making a sample library out of it. Please enjoy making music and don’t worry about the licenses of our products. 🙂
I hope this clears up any confusion.
Best,
Sam Gossner
Versilian Studios LLC.