License to Ill: Christiane Kinney on the Laws of Remixes and Mashups
An attorney who specializes in music law and copyright gives the scoop on avoiding the long arm of the law when making remixes and mashups.
Picasso may have been the first to say that all art is theft, but a growing number of copyright and sampling lawsuits prove that not everybody’s OK with it. Artists ranging from Moby to Frank Ocean have weathered sampling suits, but for those just trying to make a name for themselves, a significant copyright violation can put you out of business. That’s where Christiane Kinney comes in. An attorney with LeClairRyan in Los Angeles, Kinney focuses on helping both budding and established artists navigate the tough terrain of copyright law, including the perils of making remixes and mash-ups. Mistakes are easy. Making up for them is costly, and one false move can land you in a courtroom. Here’s how artists using other people’s materials can sidestep legal trouble.
Christiane Kinney: I think it’s the distinction between what constitutes a cover song and what constitutes a remix or a mashup, because different licensing schemes apply. In a cover of someone else’s song, you’re dealing with the mechanical or compulsory licensing scheme. You do not have to get special permission from the artist to cover their song. … How I like to explain cover songs is that [it’s] a very simple, barebones re-recording of a song that someone else made famous first and you’re not really making any major changes to the melody or the lyrics. When you get into remixes and mash-ups, a lot of times it gets into the area of what’s called a derivative work in U.S. copyright law. That’s something that’s been recast, transformed, or adapted to represent a new or an original work of authorship.
Everyone who creates under U.S. copyright law has this bundle of rights that [allows them to] control how their works are to be used. That goes for public performance, public display of their work, distributing, copying, obviously, and then also creating derivative works. If someone else is taking, let’s say a groove or a part of a melody from a copyrighted song, and they’re doing a remix or if they’re taking multiple pieces of songs and mashing them together to create something new, then you’re creating a derivative work and you’d have to get special permission from the copyright owners.
CK: I think there’s more gray area when you are talking about covers versus remixes, less so in mash-ups. Definitely in the remix world if you’re just adding, let’s say a drum groove underneath a song where the melody and the lyrics and the chord progressions are all really tight and pretty close-knit to the original, you’re not really going to have much issue. …
CK: …Dean Serletic, who runs Emblem Music, is a co-founder for Zya [a music app that allows users to create mash-ups from pre-licensed popular songs]. … Dean had experience with running a label with his brother, Matt [Serletic, a Grammy award-winning producer], so they created a licensing scheme in the cloud where it pieces together how much you’re adding to the song. … It’s allowing the artist who’s adding their piece and working with songs that have already been pre-cleared for mash-ups to create something that they can monetize.
If you go to the original artist and get permission to create a derivative work, a lot of times you can negotiate for a split of some sort, sometimes 50/50, sometimes if it’s a very popular artist, they’re going to get more of the pie. You can put in a request and try and monetize that so that you’re getting something for the creation rather than just trying to put it out there and hopefully not get sued or get a takedown notice on SoundCloud or YouTube.
CK: …If an artist can afford, it is best served with an attorney or a very qualified manager doing some of that work for them. … If you remember back when The Verve came out with “Bitter Sweet Symphony,” a lot of people know that there was litigation around that, [but] very few people realized the extent of it. That was one of those unusual cases where they actually tried to do things the right way. That’s what people don’t understand.
CK: Yeah, it’s very disheartening. They did try and do it the right way. They actually licensed a sample of an orchestral cover version of a Rolling Stones song. If you listen to the original Rolling Stones song, which was a song called “The Last Time,” there are some similarities, but there’s really not a tremendous comparison. But if you listen to that orchestral version, they clearly sampled it and it sounds very much like “Bitter Sweet Symphony.” … The issue was whether or not they used too much of the sample and went outside the scope of the licensing agreement. At the end of the day, The Verve paid 100 percent of their royalties for “Bitter Sweet Symphony” because they exceeded the scope of the license agreement. Then they also gave over the writing credit so Mick Jagger and Keith Richards also had writing credit and won a Grammy for “Bitter Sweet Symphony.” Even though The Verve wrote brand new lyrics and they could show some 50-odd tracks that they had added beyond the sample, they got diddly-squat for that. I understand why people are scared of the licensing because there are cases like that, which are just these cautionary tales.
Ideally, an artist is going to want to have umpteen members in place who can do it the right way, because there are multiple [things] to clear sometimes. There are multiple writers or sometimes [if] you’re sampling a cover, you have to make sure you’re doing it correctly and going to everybody for the right permissions. … I always encourage people to get a team together that can support them from a business perspective in licensing. For people that can’t afford it, there are [organizations] like California Lawyers for the Arts.
CK: …Let’s say [an artist is] licensing just a song but they’re going to re-record it so they’re not doing any sampling of a master. That’s usually the easiest way to go so that you don’t have to deal with the sound recording itself and master use rights. You can just get clearance from the song writers themselves, and I’d say try and start with a 50/50 split. Now when you get into mash-ups, sometimes logistically it’s going to be impossible because someone is trying to do a mashup of eight popular songs and it just becomes a little too obscure. … It’s logistically difficult to create a split for everybody.
CK: It’s very difficult. That was something really interesting that Zya did by working out splits in advance for certain songs and allowing this whole licensing thing to be going on behind the scenes in the cloud. It’s something that’s fascinating because you can grab a bass line from this song and maybe a guitar riff from this song and a piano riff from this song and you can add your own vocals and create this mashup. It’s figuring all of that out…
CK: Creative Commons is something that works in conjunction with copyright law. … [Artists] attach different licenses to their own copyrighted works. Under normal copyright law, you have all rights reserved, which is that exclusive bundle of rights we talked about. [With Creative Commons], you’ll see artists indicating that some rights are reserved and there’s a lot of different types of licenses actually under Creative Commons that were created. One of the most popular is the Attribution license. That allows people to copy, distribute, display, and perform the copyrighted work and to create derivative works, so for remixes and mash-ups that’s perfect. But they have to give the artist proper credit. One of the common phrases for Creative Commons folks is, “Attribution is the new currency.” Credit is everything there. You have ShareAlike licenses, where it only allows other people to distribute their derivative works or to create under a license that was identical to the license governing the underlying work. You have NonCommercial licenses so you can do whatever you want with the song, but you cannot use it for a commercial work, only non-commercial purposes. Then there’s actually a Creative Commons license [for] no derivative works [abbreviated “NoDerivs” on the Creative Commons site], so you can copy and distribute and display and perform exact copies of the work, but you’re not allowed to do remixes or mash-ups or anything derivative of the original. That’s kind of an overview of some of the licenses that are available, so if somebody’s interested in remixes and mash-ups, they’re going to want to explore the Attribution license.
CK: A lot of people end up squeaking by on things like YouTube and SoundCloud because of the takedown notices. They don’t get in trouble as much because it’s hard to get money from somebody that doesn’t have it. There are so many sampling cases that show the difficulties that people can get into from licensing incorrectly or not licensing at all. It happens, and people do get sued for copyright infringement. You have to be very careful. The statutory costs involved and the costs for defending a copyright infringement action, plus the possibility of owing someone else their attorneys’ fees and costs, it’s a scary proposition for people, and that’s when I would really tell people to try and seek out legal counsel. I mean, if you’re already in trouble, you’re going to have to have somebody there for you to try and pull you out of the hole.
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