Is the End Near for Unlicensed Remixes and Cover Songs?
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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.
Just to be clear, by "any purpose whatsoever" you mean for a remix, right? In other words, fair use still applies to songs.
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.
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.
HFA required, at the time of my asking, a blanket amount. For the granting of the "legal right" to record the cover, HFA had an introductory tier of X,XXX units. As in, to record one digital copy of the song, the up-front payment was the equivalent of it being sold in hard copy (or digitally) X,XXX times.
X,XXX multiplied by the royalty set by law is not an insignificant sum. For an independent artist, non-label backed or advanced, this amount is prohibitive. Thus, either go the legal and potentially costly up-front route, which is real and was glossed over in the article, or go the unlicensed route.
What your comment fails to address in the latter part, regarding remixes, is that according to press releases and public information by SoundCloud and Dubset, "rights holders" are granting a negotiated statutory right for the providers to host and provide compensation for the use of someone else's recording. Your statement is correct in the legal, traditional sense, but that statement is apparently being revised through market forces, as noted in the article.
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.
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.
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.
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.
The other reason to talk about both of them in the same breath is that both avenues are ones that intelligent, diversified labels will want to exploit whenever possible. Fan culture and engagement is a touchy prospect, and going to SoundCloud and Dubset (iTunes & Spotify) as "partners" rather than "enforcers" is simply smart PR. If that means, haha, blurring the lines about what "up front" rights need to be secured when otherwise having no say in the matter, I think for once the industry is catching on.
You may not agree that these are valid reasons to put the two in tandem, but I think they are and that's why I put it together as a topical - sound though not specific overall - review of what the "traditional" and potential "new" rights avenues might be like.
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"
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).