5 ms·

Is the End Near for Unlicensed Remixes and Cover Songs?

35 points by 6stringmerc 10y ago

beat 10y ago
This is fascinating. The old way of handling rights and royalties is so hopelessly outdated, and the RIAA's approach to it has been so reactionary - as a songwriter and cover musician myself, I want to make sure musicians (and licensing agencies) get any financial rewards distributed fairly, while also taking advantage of the opportunities this new world affords us.
- 6stringmerc 10y ago
  Absolutely! There's been a real effort to advance useful Copyright Reform - often kicking and screaming - in ways that should hopefully bring back more progress to the arts. I think most musicians learn about respect for others' work at various stages in their careers, and eventually, come to realize that paying tribute and being a part of the conversation has been fenced off by "rights holders" of various sorts. Honestly I'm glad that there's this new kind of "grey area" where legalized methods are popping up. They're not perfect. Is this trend better than nothing? I think so - I think this is what tech and artistic progress working alongside each other somewhat resembles.
  - tigeba 10y ago
    I think this article is unreasonably lumping together the concept of covers and remixes. Cover songs are covered by compulsory licenses in the U.S.A. These are very 'mechanical' and you can in fact obtain them for virtually any recorded song at a fixed rate. It is possible that companies like Soundcloud may be streamlining the process or helping the publishing rights holders but there is not much preventing covers from being created. The situation for remixes is much different. Remixes inherently involve the use of a PERFORMANCE, not a composition. Licensing is as you mention in the article very difficult and is up the discretion of the rights holder. If there are platforms that want to reduce friction here I think that is great, but the artist should still have discretion in how their performances are used.
    - beat 10y ago
      Remixes are related to samples, another grey area.
      - tigeba 10y ago
        This is not really a grey area, remixes are samples, and samples are using a previous performance.
    - rvlouie 10y ago
      You're using the wrong terms here. There are two main copyrightable entities in music. First there's the publishing side, which covers the song's actual composition. Second, there's the master side, which, once the song is recorded by an artist, covers the recording. In statue, you can freely cover any song, and there are royalties baked in. This is covered on the publishing side. There's the mechanical, which covers each duplication of the new recording. There's also the performance royalty which is paid every time there's a public performance (on the radio, in a bar, at a venue), and are administered in the US by the Performance Rights Organizations (ASCAP, BMI, SESAC). There are disputes about these payouts where digital and terrestrial radio are concerned, but that's a whole other thing. Checkout some of the recent congressional panels for a crash course in consent decrees and the other wonderful things each side is fighting about (Pandora vs. ASCAP + BMI, mostly). Concerning remixes, this gets into the master side. There are no rights written into statute that concern the master side. This is likely due to the major label's continuing influence over the process. As soon as you take a master recording (or the stems therein) and alter it in a DAW or elsewhere it's transformed into a derivative work. In order for it to be legal to sell this work you need consent from all of the stake holders, that is, you need permission from the master rights holder(s) and the owners of the publishing (original songwriters). This is, right now, an ad hoc process. There is no industry agreed upon standard for payment, mostly it's people making it up as they go. I have a general rule of thumb: if there are more than 3 writers on the publishing side, it's not getting cleared. This generally holds in my experience. Any platform that hopes to solve these problems needs to have end to end consent from all of the rights holders before offering a path to monetization of the derivative, or else you're opening yourself up to litigation. The music industry, as we've seen, is endlessly litigious.
kruhft 10y ago
Part of Nine Inch Nails success as an artist has been from the great diversity and support of remixers both on his released albums and through fan sites[1]. He was a pioneer in the remix world as one of the first to release full, multi-track sources for a lot of his tracks and just let it go...to much success. This sounds like another example of the music industry shooting itself in the foot thanks to the suits. Imitation (and covers) are the sincerest form of flattery in art. [1] http://ninremixes.com http://ninremixes.com
gumby 10y ago
I thought the was about something even more pernicious: The recent ability for a song author to block someone from recording an interpretation the original author doesn't like: https://www.techdirt.com/articles/20160523/08060434523/copyright-as-censorship-questionable-copyright-claim-forces-indie-musician-to-destroy-all-physical-copies-new-album.shtml https://www.techdirt.com/articles/20160523/08060434523/copyr... tl;dr: a member of "the cars" got some puny indie to destroy all the physical albums that had been made (before shipping) and change a song, because of his claimed "rights"
- tigeba 10y ago
  This is not recent, part of the compulsory licensing for covers is that the cover does not substantially alter the original song. This boils down to substantial alterations of the melody or (possibly) lyrics.
  - lambertsimnel 10y ago
    Don't the rights of the writer depend on the similarity of the cover to the original? If the the alterations are sufficiently substantial, the author of the previous version shouldn't have rights over the new version.
    - rvlouie 10y ago
      If the alterations are substantial, then it's a derivative work. If it's in any way derivative, the author has complete authority over the new work. It is outside the domain of compulsory licenses at this point.
      - gumby 10y ago
        Well, parody, while derivative, certainly is not subject to the control of the original author (remember the Luke Skyywalker case). I think the courts should have a very liberal definition of what is transformative -- the permissions culture has gone way way too far (this infects both civil and criminal law in the USA and Europe).
whiddershins 10y ago
To my knowledge cover songs have a statutory right, while remixes do not. This article is failing to highlight how important a distinction this is. You have the legal right to record a cover song, and the royalty is set by law. The artist can only block it later by arguing some change you inflicted in the composition and recording resulted in a derivative work ... which I would imagine is how the Cars example came to be. Remixes you must secure permission, as there is zero statutory right to use even a millisecond of someone else's recording for any purpose whatsoever.
- rvlouie 10y ago
  ^ Accurate.
- jbrantly 10y ago
  > as there is zero statutory right to use even a millisecond of someone else's recording for any purpose whatsoever. Just to be clear, by "any purpose whatsoever" you mean for a remix, right? In other words, fair use still applies to songs.
  - extra88 10y ago
    Fair use basically doesn't apply to recordings of songs. The practitioners and those in the business of different categories of creative works can establish different standards for qualifies as fair use. In the early Nineties, the music industry basically decided that there was more money to be made from licensing samples than from fostering the creation of works that use samples. To be more precise, a fair use defense on a sample not being a substantial or essential part of the original work (if the source can be recognized, the sample is substantial) or it not causing financial harm (because paid sample licensing exists) is dead. Defense based on your work being commentary or parody of the original work is still available. Theoretically, a defense based on transforming the sample is still available but in practice if the source can be recognized, the use wasn't sufficiently transformative.
- Animats 10y ago
  Right. The distinction is that a "cover" is derived from the work of the composer. Traditionally, a "cover" starts from sheet music. Only the composer's rights matter. There's a compulsory license deal for composers in the US, with a fixed statutory rate, and the Harry Fox Agency handles most such licensing. A "remix" is derived from the work of the composer and musician(s). So you need a license for both the composition and the recorded work. There's no obligation to sell you such a license. Generally, record companies own the rights in commercial recorded music, but composers often own their own rights. The recording industry is the main beneficiary of this arrangement, because they can record existing songs and sell them. The RIAA likes this setup. The mixtape crowd doesn't like it, but tough. They're not doing much original. If you don't like it, write and perform your own stuff.
splawn 10y ago
Some of my favorite art, music or otherwise, is (pseudo)anonymous and illegal....and I am not alone. So, no... the end isn't near, but I am fine if most people think so. :D
nix0n 10y ago
No, the end is not near for unlicensed remixes or any other sort of copyright infringement.
- 6stringmerc 10y ago
  What is being negotiated is a revision of the concept of copyright infringement. A sanctioned, rights-holder compensating negotiated transaction is distinctly different from infringement as a commercial notion. Or even based on credit where due in the case of original authors.

35 points by 6stringmerc 10y ago

beat 10y ago

This is fascinating. The old way of handling rights and royalties is so hopelessly outdated, and the RIAA's approach to it has been so reactionary - as a songwriter and cover musician myself, I want to make sure musicians (and licensing agencies) get any financial rewards distributed fairly, while also taking advantage of the opportunities this new world affords us.

6stringmerc 10y ago
Absolutely! There's been a real effort to advance useful Copyright Reform - often kicking and screaming - in ways that should hopefully bring back more progress to the arts. I think most musicians learn about respect for others' work at various stages in their careers, and eventually, come to realize that paying tribute and being a part of the conversation has been fenced off by "rights holders" of various sorts. Honestly I'm glad that there's this new kind of "grey area" where legalized methods are popping up. They're not perfect. Is this trend better than nothing? I think so - I think this is what tech and artistic progress working alongside each other somewhat resembles.
- tigeba 10y ago
  I think this article is unreasonably lumping together the concept of covers and remixes. Cover songs are covered by compulsory licenses in the U.S.A. These are very 'mechanical' and you can in fact obtain them for virtually any recorded song at a fixed rate. It is possible that companies like Soundcloud may be streamlining the process or helping the publishing rights holders but there is not much preventing covers from being created. The situation for remixes is much different. Remixes inherently involve the use of a PERFORMANCE, not a composition. Licensing is as you mention in the article very difficult and is up the discretion of the rights holder. If there are platforms that want to reduce friction here I think that is great, but the artist should still have discretion in how their performances are used.
  - beat 10y ago
    Remixes are related to samples, another grey area.
    - tigeba 10y ago
      This is not really a grey area, remixes are samples, and samples are using a previous performance.
  - rvlouie 10y ago
    You're using the wrong terms here. There are two main copyrightable entities in music. First there's the publishing side, which covers the song's actual composition. Second, there's the master side, which, once the song is recorded by an artist, covers the recording. In statue, you can freely cover any song, and there are royalties baked in. This is covered on the publishing side. There's the mechanical, which covers each duplication of the new recording. There's also the performance royalty which is paid every time there's a public performance (on the radio, in a bar, at a venue), and are administered in the US by the Performance Rights Organizations (ASCAP, BMI, SESAC). There are disputes about these payouts where digital and terrestrial radio are concerned, but that's a whole other thing. Checkout some of the recent congressional panels for a crash course in consent decrees and the other wonderful things each side is fighting about (Pandora vs. ASCAP + BMI, mostly). Concerning remixes, this gets into the master side. There are no rights written into statute that concern the master side. This is likely due to the major label's continuing influence over the process. As soon as you take a master recording (or the stems therein) and alter it in a DAW or elsewhere it's transformed into a derivative work. In order for it to be legal to sell this work you need consent from all of the stake holders, that is, you need permission from the master rights holder(s) and the owners of the publishing (original songwriters). This is, right now, an ad hoc process. There is no industry agreed upon standard for payment, mostly it's people making it up as they go. I have a general rule of thumb: if there are more than 3 writers on the publishing side, it's not getting cleared. This generally holds in my experience. Any platform that hopes to solve these problems needs to have end to end consent from all of the rights holders before offering a path to monetization of the derivative, or else you're opening yourself up to litigation. The music industry, as we've seen, is endlessly litigious.

kruhft 10y ago

Part of Nine Inch Nails success as an artist has been from the great diversity and support of remixers both on his released albums and through fan sites[1]. He was a pioneer in the remix world as one of the first to release full, multi-track sources for a lot of his tracks and just let it go...to much success. This sounds like another example of the music industry shooting itself in the foot thanks to the suits. Imitation (and covers) are the sincerest form of flattery in art. [1] http://ninremixes.com http://ninremixes.com

gumby 10y ago

I thought the was about something even more pernicious: The recent ability for a song author to block someone from recording an interpretation the original author doesn't like: https://www.techdirt.com/articles/20160523/08060434523/copyright-as-censorship-questionable-copyright-claim-forces-indie-musician-to-destroy-all-physical-copies-new-album.shtml https://www.techdirt.com/articles/20160523/08060434523/copyr... tl;dr: a member of "the cars" got some puny indie to destroy all the physical albums that had been made (before shipping) and change a song, because of his claimed "rights"

tigeba 10y ago
This is not recent, part of the compulsory licensing for covers is that the cover does not substantially alter the original song. This boils down to substantial alterations of the melody or (possibly) lyrics.
- lambertsimnel 10y ago
  Don't the rights of the writer depend on the similarity of the cover to the original? If the the alterations are sufficiently substantial, the author of the previous version shouldn't have rights over the new version.
  - rvlouie 10y ago
    If the alterations are substantial, then it's a derivative work. If it's in any way derivative, the author has complete authority over the new work. It is outside the domain of compulsory licenses at this point.
    - gumby 10y ago
      Well, parody, while derivative, certainly is not subject to the control of the original author (remember the Luke Skyywalker case). I think the courts should have a very liberal definition of what is transformative -- the permissions culture has gone way way too far (this infects both civil and criminal law in the USA and Europe).

whiddershins 10y ago

To my knowledge cover songs have a statutory right, while remixes do not. This article is failing to highlight how important a distinction this is. You have the legal right to record a cover song, and the royalty is set by law. The artist can only block it later by arguing some change you inflicted in the composition and recording resulted in a derivative work ... which I would imagine is how the Cars example came to be. Remixes you must secure permission, as there is zero statutory right to use even a millisecond of someone else's recording for any purpose whatsoever.

rvlouie 10y ago
^ Accurate.
jbrantly 10y ago
> as there is zero statutory right to use even a millisecond of someone else's recording for any purpose whatsoever. Just to be clear, by "any purpose whatsoever" you mean for a remix, right? In other words, fair use still applies to songs.
- extra88 10y ago
  Fair use basically doesn't apply to recordings of songs. The practitioners and those in the business of different categories of creative works can establish different standards for qualifies as fair use. In the early Nineties, the music industry basically decided that there was more money to be made from licensing samples than from fostering the creation of works that use samples. To be more precise, a fair use defense on a sample not being a substantial or essential part of the original work (if the source can be recognized, the sample is substantial) or it not causing financial harm (because paid sample licensing exists) is dead. Defense based on your work being commentary or parody of the original work is still available. Theoretically, a defense based on transforming the sample is still available but in practice if the source can be recognized, the use wasn't sufficiently transformative.
Animats 10y ago
Right. The distinction is that a "cover" is derived from the work of the composer. Traditionally, a "cover" starts from sheet music. Only the composer's rights matter. There's a compulsory license deal for composers in the US, with a fixed statutory rate, and the Harry Fox Agency handles most such licensing. A "remix" is derived from the work of the composer and musician(s). So you need a license for both the composition and the recorded work. There's no obligation to sell you such a license. Generally, record companies own the rights in commercial recorded music, but composers often own their own rights. The recording industry is the main beneficiary of this arrangement, because they can record existing songs and sell them. The RIAA likes this setup. The mixtape crowd doesn't like it, but tough. They're not doing much original. If you don't like it, write and perform your own stuff.

splawn 10y ago

Some of my favorite art, music or otherwise, is (pseudo)anonymous and illegal....and I am not alone. So, no... the end isn't near, but I am fine if most people think so. :D

nix0n 10y ago

No, the end is not near for unlicensed remixes or any other sort of copyright infringement.

6stringmerc 10y ago
What is being negotiated is a revision of the concept of copyright infringement. A sanctioned, rights-holder compensating negotiated transaction is distinctly different from infringement as a commercial notion. Or even based on credit where due in the case of original authors.