DJs and Copyright. A Primer.

Intro Bars

Copyright can be a very complex subject that has so many viewpoints and layers that one can get lost in a quagmire of legalese, opinion, and unanswerable questions that some just don’t want to even to begin to parse it all. Others, armed with a tiny bit of knowledge, think that they know everything there is to know about copyright and the reality is they don’t.

Let’s try to clear the fog on this. Especially with some new rules that are in place, some new copyright deals that some players have signed onto, now is a great time to get a primer on Copyright and how it affects you as a DJ.

Now as a preface, I am no legal expert on the matter, I hold no law degree, and I even hold some strong opinions on the subject (that I will talk about at the end of the article). I have been doing lots of research and have a bit of knowledge on the subject since the early 90s and writing a paper for school on the topic. Since then, there have been a lot of legal challenges and new laws that have been passed. So this is an ever-evolving topic to be discussing. But I will try my best.

Back In Time: 1790 – 1909

Before we get into real specifics on how copyright law affects DJs today it would be wise if we take a step back and understand how we got here in the first place.

To find the first time that the US federally applied a copyright law we have to go back to 1790. Meant to establish “encouragement of learning” it provided the “sole right and liberty of printing, reprinting, publishing and vending” of works for 14 years plus the ability to extend another 14 years if the copyright holder was still alive. Now, this did not include music yet, that comes out 41 years later in its first big revision with the Act of 1831 which included printed compositions and extended copyright for 28 years plus another 14-year extension. Another 78 years down the road we see that the 1909 copyright law extends that time period to 28 years plus another 28 years.

The Music Industry Takes Shape

In 1877 we saw the introduction of recorded music and in 1901 you started to see more of an industry take form with some celebrity recordings, and by 1945 the record had become standardized. From that point, the magnetic tape opened up doors into recording and the ability to reproduce high fidelity sound as we know it today. And during this entire time of the birth of Rock & Roll, Soul, Pop, Country, and other musical genres, there were no official federal laws on the books catering specifically to recorded music. It wasn’t until 1971 and the Sounds Recording Act which incorporated “music, spoken, or other sounds fixed on a tape or record album and the performance embodied within”. Prior to that one had to rely on common law which provided scattershot legal protections.

Copyright Act Of 1976

1976 was a big year for copyright. 61 years had passed since the last big change to the core of copyright law, although a number of small amendments were enacted during that time, but nothing that wholesale changed the law. But in 1976 the term of copyright was greatly expanded from 28 + 28 years to a whopping lifetime of the author + 50 years. Music was officially incorporated into the act as a “work of authorship” and now ingrained into federal copyright law.

While some will complain that life + 50 years (including myself) went way too far for copyright terms, there were some bright spots to the 1976 act including defining Fair Use. Fair Use allows for the replication of music without permission after it meets certain factors including the purpose, nature, amount, and effect of the work. In general using music for educational purpose, for critique, for satire, or some other transformative reasons can fall under the Fair Use clause. The for defined conditions are:

• The purpose and character of your use
• The nature of the copyrighted work
• The amount and substantiality of the portion taken, and
• The effect of the use upon the potential market

This does not give carte blanc license for the use of copyright material, but it allows for a small subset of its use.

But it’s safe to say that the Copyright Act of 1976 made a huge impact on music, and while the definition of the DJ was starting to evolve, these laws would start to shape the legal definition of what DJs could do.

RIAA Makes A Mark

As the music industry grew, there was no larger entity that represented the industry larger than the Recording Industry Association of America (RIAA). Their clout really started to show dominance when the cassette tape started to become a preferred medium for consumers. While the RIAA did not ultimately win with Congress codifying into law the Audio Home Recording Act of 1992 which ensured both analog and digital were not copyright infringing. It did not stop the RIAA from clouding two emerging technologies in DAT and MiniDisc, forcing the manufacturers to build in degrading capabilities into copies of music through a Serial Copy Management System (SCMS). The industry was afraid that having perfect copies of music out in the wild would hurt the industry. While they were correct, I don’t think they knew just how much of a change would happen in just a few years.

DPRA

It’s not like the RIAA had no idea of the potential impact on streaming, mp3s, and other digital media would be. The RIAA even went so far into championing the Digital Performance Right in Sound Recordings Act in 1995 (DPRA) that acted as a bridge from the 1976 Copyright Act and digital files. But this really focused more on streaming works than anything. The RIAA was a behemoth and it was about to face its biggest challenge yet.

FTP, Napster, Bearshare; The Floodgates Open

The mp3 can trace its roots to 1979 and Bell Labs. The thought of reducing of compressing a file by discarding sounds that the human ear could (typically) not process was a novel idea to reduce the size of a file to ~1/10th its original size (at ~128kbps). While the end results in 1991 was a sound that was not a perfect replication of the original, it soon became a “good enough”. By the latter part of the decade, a growing trend of file sharing began. Originally started in the Internet Relay Chat (IRC) and File Transfer Protocol (FTP) side of the internet, more savvy programs like Napster, Gnutella, Bearshare sprung up offering an absolute cornucopia of music to be had. Consumers flocked to the idea of being able to carry a number of files on mediums like zip discs, CD-Rs, and hard drives and eventually music players like the Diamond Rio. RIAA eventually sued Diamond because they did not employ SCMS into their system and in RIAA v. Diamond the S9th Circuit said that the mp3 player was not a digital audio recording device and was not subject to the DPRA.

During this time, specifically in 1997, the RIAA was able to get passed the No Electronic Theft (NET) Act. Prior to this, trying to go after filesharers meant that they had no legal standing since there was no profit attached to the sharing of music for free. The NET Act changed that.

On the other front, as their lawsuit against music players failed, they successfully went after file share applications like Arista v. Limewire (while claiming $72 Trillion dollars in damage). The end result was $105M in damages.

With the passage of the NET Act it allowed the RIAA also was going after people directly. And while it won some suits, it hopes to really frighten people to stop file sharing seemed to have a marginal effect at best. It wasn’t until platforms like Apple and Amazon where music could be gotten legally where quite a bit of music file sharing had dropped.

1998 and the Digital Millennium Copyright Act

Let’s make this clear, the DMCA was huge. It redefined a number of accepted norms in the realm of music and law (and it goes well beyond music). Everything from takedown notices to massive suits and fines. Fair Use was under attack by banning all acts of circumvention even to one point trying to claim that making a copy of music was illegal. The RIAA also went after ISPs trying to force them to monitor their user’s traffic for music.

The problem is there is a real hodge-podge of rulings making the DMCA very problematic for clarity on the subject, even to this day. This is why you see ISPs on occasion going after their own customers and platforms like YouTube and Facebook being so aggressive against some music being on their systems. Even with “safe harbor” laws in place, it seems the courts are still confused on what the DMCA allows and does not.

Sonny Bono, Mickey Mouse, and Extensions.

The might of the mouse, along with a dead celebrity, helped pave the way to even longer terms of copyright. With the Copyright Term Extension Act In 1998, we saw Copyright Law extended to the life of the author + 70 years or up to 120 years from creation if the entity is corporate. Thanks to this law we have not seen any new material enter the public domain.

So why did this happen? Largely you can point to Mickey Mouse and Disney, who did not want to see it’s iconic rodent hit the public domain. Ironically much of what made Disney a force in the industry was pulled from the public domain. Disney owns UMG.

To get a little bit more into copyright, fair use, the ever-increasing extensions, and the like check out this Adam Ruins Everything segment on the top.

Rewind: Right Of First Sale

One thing that had not gotten mentioned is the Right Of First Sale because it really only started to see a commercial application coming into the 70s and on. Record stores started to see old music being traded in and resold in the stores. The music industry really did not like this and tried to take legal actions.

The Right of First Sale was first legally challenged in the Supreme Court in1908 with Bobbs-Merrill Co. v. Straus on the topic of a novel. This has been an accepted law since and passed down to physical media like original records, tapes, and CDs. But this Right of First Sale doctrine ended in the digital realm with the Capitol Records, LLC v. ReDigi Inc. which the courts ruled that ‘original’ digital copies of music were not protected because it was an unauthorized reproduction.

Another strange note on the Right Of First Sale doctrine is it only applies to music, and not audio books. The Right of First Sale is a big deal and has been on the books for a very long time. But with the ReDigi case, it certainly put a complicated spin on things.

The MMA

Music gets modern, in the legal sense, for 2018. The Music Modernization Act becomes the latest attempt to modernize copyright. While it does not make a ton of changes like the 1976 act did, it does establish new laws (called the CLASSICS ACT) to protect older music (pre-1972) and creates a streamlined royalty system. Overall, it could be worse for the DJ, but the MMA does more genreal good than bad.

The Licensing Quagmire

As complicated as copyright is, the licensing aspect is equally as baffling. Here is a sampling of what licenses are needed for different aspects of music distribution. Note that in many cases multiple types of licenses are needed. I am not even going to try to dive into the particulars of it all, but be aware of these licenses and terms: Master Use Right, Mechanical License, Synchronization License, Permission to Arrange, and Reproduction Right.

Public vs. Private Performance

One very contested topic in this all is what constitutes a public performance, and what does not. At stake is not only the licensing required for venues and other entities to legally allow music to be played but even the Terms of Service (ToS) that software platforms use like Spotify or even iTunes and acquiring music from those services.

For instance, a wedding in some definitions can be considered a private event. But even a wedding can be defined as a pseudo-public event depending on how familiar everyone is with everyone else, how many people are there, etc. Legally the framework is as such:

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times (emphasis added).

It’s clear that a public event (say a bar gig) is completely against the Terms of Service (ToS). In short, it would be a safe bet that if there were a legal challenge, in this day and age of legal interpretation of music and copyright, that even a “private” event would be against the ToS. There have been cases that have been 20 persons were considered a public performance.

While there isn’t an etched-in-stone definition, it is pretty clear that even most private events for DJs will fall under the public performance definition. While the DJ is not responsible for licensing (in almost all cases) in the US, it’s still good to know.

Q&A

So there are a lot of questions and scenarios I have seen over time that can now be addressed with some of the knowledge listed above:

• As a DJ do I need a license to play in the US? No. If you are performing at a private or public venue the licensing is handled by the venue or business owner. The exception is if you are the promoter of the event, where you may be required have to obtain proper licensing if the venue has not.
• Am I a copyright holder? No. There is at no time where you are the copyright holder of material that you have not produced. Buying a physical copy of a song does not transfer any ownership rights to you. A digital file of the song has fewer rights.
• Can I resell a CD, LP, cassette tape? Yes. The Right Of First Sale allows you to resell original works.
• Can I resell a digital music file (mp3, FLAC, WAV, etc)? No. A digital file is not covered under the Right of File Sale. (See Capitol vs. ReDigi. for further analysis)
• Is it legal for me to backup my music? Yes.
• Can I legally rip a CD from a library? No. You are not the owner of the original physical copy.
• Can I sell my hard drive full of music to someone? No. You are not the owner of the original physical copy. (See Capitol vs. ReDigi that does not recognize a digital music file as part of Right of First Sale.)
• Can I give a client a copy of the music played at an event? No. You are not the owner of the original physical copy. You would need to obtain proper licensing to provide a legal copy.
• Why do Facebook and others block my live stream of a set? While there are deals that have been signed to allow some music from some labels, it seems that they are not extending this to full DJ sets of music. This is still murky as the details of the deal are not clear. This may change in the future given the deal, but as of the end of 2018, many DJs uploads and live streams are still being curtailed.
• Is there a legal way to stream music? Yes, you can obtain a Shoutcast license. Pricing seems to vary.
• Can I play Spotify or others streaming services at an event? The general answer is no in almost all cases.
• Is it true some music pools are not legal? Yep. Just because there are a number of pools that operate are still around it does not mean that they are completely legal. It’s nearly impossible to know how many are completely legit with current laws and how many skirts, bend, or outright break the laws. Just be mentally aware that if the industry went after DJ record pools there may be far fewer at the end of those lawsuits.
• I am a multi-op. Do I need multiple legal copies for each DJ? Yes, digital files are not legally distributable. That being said, if you had the original source of each file (say on CD) then one can make an argument of multiple backups of a file within an operation. But if you are part of a record pool, then the legality is a 1:1 relationship between the subscription and the copy.
• Can I put a mix on MixCloud legally? A real legal grey area. They do follow all the rules as possible based on UK laws. They have an agreement with UMG and WMG at the time of publishing, but again the terms of that agreement are not clearly defined. I do think that the labels are starting to finally make a legitimate deal with content creators like DJs to be able to publish some works. but to what extent is up for debate.
• What is the legality of the Spotify & Tidal/SoundCloud deal? Unknown. I have not been able to examine the ToS and if there is a licensed limitation for public performances. One cannot assume that the existence of the service on Serato is somehow magically legitimate. Pulselocker was on the platform and then they went under and it was rumored they did not have the proper licensing in place.

Personal Feelings

I’ve largely tried to put my feelings aside to try to really focus on the legality of copyright law and where a DJ stands in trying to do anything from performing to showcasing their works in a public arena. But now it’s time to blow off some steam. It’s clear for decades the RIAA has not been a good steward of treating artists well, of not representing the public interest and flexing their muscles legislatively and legally to stymie technology. From the birth of the cassette tape the industry was going to die, then the CD-R, then the DAT/MD. They did finally take a massive blow with the introduction of file sharing and having a generation of users that wanted access to digital files. They rather go after users, ISPs, and others instead of recognizing the shift in the consumption model.

Today it seems that the consumption model of streaming, along with the long reign of file sharing, has impacted sales considerably. While there is an uptick the last couple years, I am curious if that trend will last. It seems people are putting less value overall on music than in years past.

On the topic of Copyright length, I believe the RIAA and other industries have gone too far. The entire purpose of copyright was to have a limited monopoly on creative works. Somehow a lifetime + 70 years or 120-year term for corporate entities is extraordinarily long. Creative works are supposed to end up in the public domain for the reuse, transformation, and other interpretations for the masses to have access to. It will not be till 2068 where any substantial entries to the public domain will become available and it would not be surprised if legislation changes to extend that in the future.

For the DJ specifically, many clients want to see past performances or hear a mixtape before potentially hiring you. I do a combination of some short event videos on Facebook, Instagram, and YouTube along with a few mixtapes I’ve uploaded on MixCloud to provide some material for them to examine. In some cases, the songs are flagged and still available but unable to monetize. Some are outright pulled including any long mixtape performance on social media.

It would be nice for a license that would allow a DJ to legally upload this material. It’s certainly not in our interests for an artist not to get paid. But the legal avenues are still in a very grey area. I am curious what the future will hold for us.