Remixing, Public Domain, and the Creative Commons License

August 31, 2012{ 3 Comments }

iStock 000007817946XSmall 217x300 Remixing, Public Domain, and the Creative Commons License[HELPFULAW FOR THE INDIE ARTIST is a monthly advice column on legal matters pertaining to the music industry.  If you have a suggestion for a future article that you would like to submit to our columnist, entertainment attorney and indie artist Christiane Cargill Kinney, please feel free to leave them in the comments section below or send them to her at Christiane.Kinney@leclairryan.com.  You can also follow her on Twitter @musicalredhead for more helpful indie-artist tips.] 

Q: I’m a remixer, and I’ve heard conflicting information about whether a remix is considered a cover or not, and what licenses need securing. Is a remix considered a cover?  Regardless, what are the licensing issues I should be cognizant of if I want to monetize a remix, including posting a video that I’ve made that uses my remix?

A:  Sometimes the answer is right in front of us, but we just have to know the right question to ask.  In that vein, I can understand why you might find conflicting information about whether a remix is a cover song or not.

The word “cover” generally suggests that someone is simply re-recording a song made famous by someone else first, without making any major changes to the melody or lyrics. In the world of cover songs, you can use a mechanical (or compulsory) license to re-record a song, without having to get special permission from the copyright owner(s).  It’s kind of like borrowing dad’s car without asking him; as long as you don’t make any major changes to the car, you can generally get away with it.

On the other hand, in the world of remixing, you are more likely to take a groove or part of a melody from a copyrighted song and combine it with something else in order to create something almost entirely new … almost.  A remix generally falls under what is known in U.S. Copyright Law as a “derivative work” – something that has been “recast, transformed, or adapted” to represent an original work of authorship.  The creation of a derivative work does require special permission from the copyright owner(s), unless an exception applies.

As you can probably imagine, there is some gray area in determining when a work crosses over from “cover song” to “derivative work.”  While I don’t know your specific situation, I would venture an educated guess that you will probably need permission from the copyright owner(s) to create a derivative work, along with a master use license (if you are taking a sample from the original recording; mechanical if re-recording the song or part of it), and a synchronization license for video usage in order to accomplish all of the above.  Unfortunately, when it comes to creating derivative works, some artists won’t give you permission to do anything with their music, no matter how cool your remix may be.

EXPLORING PUBLIC DOMAIN

Many remixers look to works already in the public domain for their creative sampling needs, in the hopes of avoiding excessive license fees or lengthy phone calls and follow-up e-mails followed by rejection and resentment.  (Yes, licensing can be a lot like dating).

Generally speaking, a “public domain” work is a work that is no longer protected under U.S. copyright law and may be freely used by others.

How do you determine whether a piece of music has fallen into the public domain?  It’s actually a pretty complicated analysis, as different rules apply for different time periods.  The easiest rule of thumb is that U.S. works published prior to 1923 have now fallen into the public domain.  As far as determining whether something written and/or published after 1923 falls into the public domain, I recommend consulting with an attorney, as the rules get … um, what’s the legal term for it?  Oh yeah, wiggy.  The rules get wiggy.

While public domain works can be a great resource for artists, I do want to offer you guys an important, and often overlooked, note of caution: If someone else has recorded a public domain work, they own the rights to that sound recording, and the sound recording is most likely NOT in the public domain yet.

So, by way of example, remixers should beware of taking an L.A. Philharmonic recording of Beethoven’s 9th and remixing it to some hip and trendy beat with a didgeridoo and a hip-hop artist layered on top (as much as I would like to hear that), because the L.A. Philharmonic owns that recording.  You are free to hire your own orchestra to come in and record the public domain music, but you can’t use someone else’s recording of it without their permission.  The same licensing restrictions apply unless the sound recording has also fallen into the public domain. (And yet another word of caution: Beware of the debate over whether digital remastering of old recordings can create a new copyright in the remastered recording!  Isn’t music law fun?

CREATIVE COMMONS LICENSE

We’ve talked a lot about U.S. Copyright Law in the last several months, and I get the feeling that some of you in the #IndieRevolution get a bit dismayed as we go further down the rabbit hole that is music law.  So, now that I’ve shared some of the common copyright issues that can arise for remixers, I want to discuss a topic that may be seen by musicians and remixers alike as the “bright side” to their craft; a virtual creative playground without all the potential headaches that U.S. Copyright Law has to offer (no, not bringing nude groupies into the studio).  In short, welcome to the world of the Creative Commons License.

Creative Commons is a non-profit organization that provides free licenses and other legal tools to mark creative work with the freedom the creator wants it to have.  It was created by attorneys who recognized that the technology related to our craft was growing in leaps and bounds, and the law simply wasn’t keeping up fast enough (kind of like Maiden Form bras trying to keep up with breast augmentations).

In essence, Creative Commons works in conjunction with copyright law, allowing artists to modify their copyright terms to suit their needs.  Instead of “all rights reserved,” you’ll see artists indicating “some rights reserved.”

There are a variety of creative commons licenses, including:

* The “attribution” license, which allows others to copy, distribute, display, and perform the copyrighted work – and to create derivative works based upon it – but only if they give the artist proper credit.

* The “share alike” license, which allows others to distribute derivative works only under a license identical to the license governing the artist’s work;

* The “noncommercial” license, which allows others to copy, distribute, display and perform the artist’s work – and to create derivative works based upon it –for non-commercial purposes only; and

* The “no derivative works” license, which lets others copy, distribute, display and perform exact copies of the artist’s work, but does not allow them to make derivative works based upon it (in other words, no remixing / mash-ups).

I found a fascinating company during my research, and as I explored it a bit further, I discovered that the President, Emily Richards, was an old acquaintance.  The company she now runs: CC Mixter (www.ccmixter.org).  While this is not intended as a personal endorsement, I am going to talk about the company briefly here, because Emily said I could, and because I think it’s an interesting model for artists and remixers to explore to see if it’s a good fit for them (much like horse-breeding for Republicans).

Essentially, CC Mixter built an infrastructure in which like-minded musicians and remixers could utilize the creative commons licenses and share music in accordance with the license that applies to each track, to create samples, mash-ups, or to otherwise creatively transform an artist’s work.  Once the infrastructure was built, the company was handed off to people like Emily who are deeply engrained in the music industry and could take it to the next level.

CC Mixter is intended to be a cooperative, non-competitive environment.  Artists provide original open source music, with all components and individual tracks available, allowing others to utilize the song as the seed to their own creative vision and interpretation.  Emily describes it as “one big, digital, international band, intended to be interactive and collaborative, and to help indie artists gain fans by sharing their music with others.”  As she puts it, “Attribution is the new currency.”

According to Emily, CC Mixter is as big in Europe if not bigger than the United States, and she has really seen how it connects people, verifying that music really is the universal language.

So, how does the creative commons license work in practice?  Honestly, I think it’s hard to tell right now.  One thing is certain: education is key.  Once people have a better understanding of what the creative commons license is, and how they can use it, I see this as an interesting hybrid model that can really flourish, allowing more artists to collaborate and promote each other.  Do some people take the music stems and ignore the terms of the creative commons license?  Sure, just like people make copies of copyrighted music and try to create a license-free soundtrack to their videos of cats playing hockey on YouTube.  As with anything, if used properly, this is a tool that I can see being of great interest to remixers, as well as musicians who want to collaborate and reach a whole new fanbase.

So, here’s this month’s quick recap:

1. When you are remixing a song protected by U.S. Copyright laws, you will most likely need a number of licenses in order to utilize that remix for commercial, and sometimes even non-commercial, purposes.

2. Public domain works can be a good option for remixers, as long as you exercise due diligence in determining whether a work has actually fallen into the public domain, and you don’t use someone else’s copyright-protected sound recording of that work.

3. There are alternatives.  The creative commons license works in conjunction with U.S. Copyright laws, allowing artists and remixers to creatively collaborate with fewer copyright restrictions in place, by allowing artists to modify the terms of their licenses to suit their needs.

4. Infrastructures like CC Mixter represent an interesting model, which is embracing and working with technology to create an interactive, creative playground for people who want to utilize what the creative commons license has to offer.

5. If you are going to use music that is available under a creative commons license, make sure to read, understand, and abide by the terms of the license. Artists are giving people free access to music they created (including the stems) for various uses, and they are giving up certain legal rights to collaborate with you and create something new and cool; be cool in return, and give the Artists the attribution (or credit) and other terms that they request in return.

Yep.  Time for the fine print.

© 2012 Christiane Cargill Kinney.  All rights reserved.  This Blog contains information of a general nature that is not intended to be legal advice and should not be considered or relied on as legal advice.  Any reader of this Blog who has legal matters involving information addressed in this Blog should consult with an experienced entertainment attorney.  This Blog does not create an attorney-client relationship with any reader of this Blog. This Blog contains no warranties or representations that the information contained herein is true or accurate in all respects or that it is the most current or complete information on the subject matter covered. If you read the fine print before, are you reading it again?  Because that will truly impress me.  Christiane Cargill Kinney is a Partner and Chair of the Entertainment Industry Team of LeClairRyan, LLP.

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  • xt force

    This is some really useful information! It reminds of another topic I've been meaning to find some answers to, though, which you can hopefully address in a future article: what are the rights involved with releasing a parody of a song ( i.e. what Weird Al often does)? You're not using the actual source music, so I wouldn't think you would need the license for the digital master or whatever; yet I'm not sure it's the same as merely covering someone else's song, either – what if your playing or your singing are just bad enough that no one recognize this as a parody, and you find yourself instead charged with plagiarism?

  • blackbird hum

    what about if someone does a cover and then i remix that cover? When you say i'd need permission from the copyright owner, is that the owner of the original written work or the owner of the sound recording of the new cover?
    cheers!

    • http://diymusician.cdbaby.com/author-chris-robley Christopher Robley

      I'm pretty sure both in that case. Like when Beck sampled a Van Morrison recording of a Bob Dylan tune!