Posted on September 28, 2020
I currently host this website through DreamHost. As I was building my website in July 2020, I started off hosting it through BlueHost. However, shortly after starting my hosting subscription with them, I realized that moving to DreamHost would be a better decision in the long run. So I needed to cancel my subscription.
As I was sitting on hold in my grandma’s guest bedroom in rural Pennsylvania, a really distorted hold song came on. I was working on sampling the “Hills Are Alive” song from the sound of music, so I had Logic open. I thought that messing around with a distorted hold song could be a good time. However, after the distorted song ended, a new one came on, and it was a total bop, so I recorded it too. And that’s the underlying song in Cancelling My Subscription.
At this point, you may be thinking… “did David really just record a song and then overdub it with instruments? Isn’t that a copyright infringement?” And to that I would respond… hopefully not. Let’s look at the facts…
The Fair Use Doctrine
The court defense I would use in this case is the Fair Use Doctrine. Fair Use is a legal doctrine that promotes the freedom of expression. If you can form a “strong enough” defense with Fair Use, you can use copywrited material (such as music) without licensing or permission.
There are a few different factors that can strengthen your Fair Use defense.
First of all, non-commercial uses are favored by Fair Use. While I can technically make money off of my streams, not very many people listen to my music. I think I’ve made like $2 from streams so far. I’m making music for the fun of creating it. However, because I can make money, this part would not strengthen my case. Moving on.
The cornerstone of my case would likely come from the “transformative” clause. From copyright.gov: “Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work.” The song I recorded was being used for hold music. When has anyone enjoyed listening to hold music? I made it into something new and interesting, transforming it from boring hold music, adding something new to it with further purpose and different character. I’m not trying to substitute the purpose of the original work. Hell, I tried shazaming the recording I took so I could ask the permission:
The hold music was so low quality that I couldn’t even find it.
Another Fair Use factor is the amount of the work that was used. While I did overdub the song for nearly the entirety of Cancelling My Subscription, I cut up and modified the song itself. For instance, I repeated the chorus, which didn’t happen in the original recording. I also modified the ends of verses to sound better musically. Additionally, I didn’t use the entirety of the song – where the music cuts off near the end of Cancelling My Subscription is actually when the hold music stopped for me. I have no way of knowing how much of the song I used.
The final big piece of the Fair Use Doctrine is the effect on the market for the original piece. As in, does my use of this song adversely affect people listening to the original song I used? I think not – if anything, I’ve breathed new life into this song. Perhaps someone who listens to Cancelling My Subscription will know what the original song was and go and listen to it, thereby promoting the original song instead of detracting from it (and if they told me what it is, I could then contact the artist and ask (retroactive) permission for artistic use). In any world, I don’t think there’s a time where someone would listen to my song INSTEAD of that song in any given situation. They’re simply entirely different.
I hope you’ve appreciated my quick analysis of this application of the Fair Use Doctrine. If I’ve made a mistake, or you want to sue me because you own the rights to the song, drop a comment on this post and let me know.
Back to the backstory (and fun facts)…
Anyway, I recorded this song from hold music, then overdubbed it with my own instruments. In fact, I purchased the triangle and shakers from Dale’s Drum Shop near Harrisburg and recorded those live. If you listen closely, you can hear my cousin Kendall and my grandma putting away silverware in the background of the recording.
The conversation at the end was much longer than the version that made it into the song – I cut it up a considerable amount so it would sound good musically. The guy I talked to, Victor, was really nice. If you’re reading this, Victor, thank you for helping me cancel my subscription.
The survey at the beginning of the song happened at the very end of the phone call. I thought it sounded better as the intro, though – it sets the tone, ya’know.
The underlying song I overdubbed was actually very off beat. I couldn’t quantize (line up) any of the notes of my overdub instruments to a specific BPM because it fluctuates constantly. Thus, I was forced to move around each note by milliseconds until it was all lined up.
As I mentioned earlier, I was working on a “Hills Are Alive” sampling project when I decided to cancel my subscription. I was going to also sample some minecraft noises and intersperse them in that song. Unsurprisingly, there has been zero development on that song. But it is cool to see the small section of that file that became Cancelling My Subscription (circled in red):
The “HILLS ARE ALIVE_1#01.1” blue box to the left of the the red circle is the recording of the distorted song I didn’t end up using at all. Maybe it’ll show up in a future song of mine. Who knows what’ll happen…
The album cover photo was screenshotted from a video taken by Sonoma at an industrial property in Menasha, Wisconsin.