Copyright Law and the Music Industry: Part II

By Katie McCort of Rock Edition

Recently, the House Judiciary Subcommittee on Courts, Intellectual Property and the Internet held a hearing on the uses and limits of the fair use umbrella, wherein the legitimate use of copyrighted materials without permission in amateur works was adamantly discussed. While debated by advocates of “remix culture,” the copyright laws guiding the professional use of previously published materials in for-profit works is generally agreed upon. As singer/songwriter David Lowery testified:


“Two of the most popular and commercially successful music genres in recent years, hip-hop and electronic dance music, rely greatly on sampling and remixing. In both genres, seeking permission from and/or compensating sampled artists are–and have been–common practices.”


This means that if Grandmaster Flash wants to sample Queen’s “Another One Bites The Dust” in “The Adventures of Grandmaster Flash and the Wheels of Steal,” or if The Prodigy wants to take a distorted, 2-second sample of Tom Morello’s emblematic opening guitar riff to Rage Against the Machine’s “Bulls on Parade,” then Queen and Rage Against the Machine should be properly credited and compensated for their contribution to Grandmaster Flash and The Prodigy’s final products.


However, this issue becomes more complex when discussing how copyright laws should guide the use of previously published materials in not-for-profit works. Currently, under the Digital Millennium Copyright Act (DMCA), YouTube (the domain for which these amateur remixes are commonly housed) must remove a video from its site if the copyright holder files a complaint against the copyrighted material. If YouTube fails to comply, YouTube is held responsible for the copyright infringement. This law exists regardless of the content or purpose of the copyrighted material. Due to this, we could wake up tomorrow and discover that no longer do we have the luxury of listening to a 10 hour loop of Albino Black Sheep’s “They’re Taking the Hobbits to Isengard” (which, indeed, has been taken down by YouTube on multiple occasions due to copyright infringement claims made by Warner Brothers) or checking our subscription updates for yet another notorious parody featuring the use of original subtitles to a rather zealous Hitler from the 2004 German independent film, Downfall.


Intellectual property consultant and professor at Berklee College of Music, Dr. E Michael Harrington, explains why the internet’s favorite Hitler videos will most likely be around for a long time to come. In an interview with Rock Edition, Dr. Harrington attested that:


“The copyright law is unenforceable to somebody sitting around with their iPad or iPhone or their computer and they’re just taking stuff and doing mash-ups. That’s breaking the law, but so what? I think you should be able to do almost anything if it’s not for profit.”


While Dr. Harrington’s proposal may expand the amount of media that is legally allowed to be distributed, thus promoting creativity and developing the entertainment market, the proposal does have its drawbacks. Professor Alexander Stewart of the University of Vermont claims that lifting copyright protection on published works for the purpose of amateur creation “opens a can of worms.” In an interview with Rock Edition, he contorts that:


“If you’re a creative artist and you create a film or you create some music and then somebody else goes out and plays around with it and creates a new work by using all of your materials, you’ve lost your rights of authorship over that. They can completely distort it or change it in a way that you don’t approve of. Artists have a right to assert control over their creations.”


Fortunately, according to David Lowery, there exists a compromise between these two compelling, yet polarizing arguments. During the congressional hearing, Lowery pointed out that:


“There are several emerging-market and permission-based solutions that allow the public to create amateur and fan remixes while protecting the rights of other creators. YouTube and the National Music Publishers Association currently have a licensing agreement where users can upload videos and remixes incorporating music from a multitude of songwriters without seeking individual permissions. In this arrangement, songwriters and music publishers share the ad revenue that these videos generate.”


It is too soon to tell whether or not informal agreements between copyright protectors and digital intermediaries will help resolve this issue. While the culinary world, the fashion industry and stand-up comedy are all often recognized for being able to respect intellectual property without formal laws, the entertainment and media world has never been an advocate for informal institutions. Harvard law professor and “remix culture” enthusiast, Lawrence Lessig, agrees, arguing in a 2009 interview with Billboard that:


“The most important thing right now is for some sensible map to be developed by credible stakeholders that can begin to educate congress. Fundamental reform of the way that copyright law functions is not going to happen through the courts, nor should it…Voluntary collective licenses or exempting amateur remixing or setting up a mechanical license for remix rights are things that involve legislative solutions.”


Given that the entertainment sector’s effort to strengthen formal copyright laws has been on the rise since the early 2000s in order to protect their respectful industries from job loss and economic disparity, the pending legality of not-for-profit remixes is likely to be resolved sooner rather than later.


In the meantime, no matter who sides with the copy”left” or the copy”right”, there is no doubt that the law needs to be amended in order to come to terms with recent technological developments and consumer tastes.