8Sided Blog

thoughts about music’s place in the 21st century

A Tale of Two Copyright Rulings

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This week saw a couple of big events in the world of music copyright. First off, resolution to the Kraftwerk “Metal On Metal” case in the EU courts, as mentioned previously. Here’s Complete Music Update:

The court said in a statement yesterday: “Phonogram producers have the exclusive right to authorise or prohibit reproduction in whole or in part of their phonograms. Consequently, the reproduction by a user of a sound sample, even if very short, taken from a phonogram must, in principle, be regarded as a reproduction ‘in part’ of that phonogram so that such a reproduction falls within the exclusive right granted to the phonogram producer”.

But what about the artistic freedom of the sampler that the German Constitutional Court was so concerned about? Well, the ECJ has put some constraints on its main ruling. […] In the words of the court: “Where a user, in exercising the freedom of the arts, takes a sound sample from a phonogram in order to embody it, in a modified form unrecognisable to the ear in another phonogram, that is not a ‘reproduction’”. That conclusion is necessary, the court then added, to properly balance the rights of an intellectual property owner with the rights of artistic freedom.

There’s been the myth of a time allowance on samples, that if one samples only two-seconds (or another arbitrary small amount) then, legally, everything is okay. This has never been true in the short history of sample litigation. The issue is identifiably and uniqueness. If, say, a jury can point to a phrase and agree that it’s an unauthorized appropriation of a master recording (a sample) then it’s likely deemed copyright infringement. The length doesn’t matter.

The confusion is probably due to the lack of precedent and definition in the US courts. There hasn’t been a high profile episode like the Kraftwerk complaint yet. So, while the ruling of the EU court doesn’t necessarily say anything new (and it doesn’t add any new limitations, despite what some clickbait headlines might lead one to believe) it is good to have the context fully explained by a legal body.

Then there’s the court’s additional opinion on the artist who artistically messes with a sample to the point of ambiguity. Of course, that artist is in the clear — thanks, EU court — but that’s not so much because it’s ‘artistic freedom.’ It’s that ideally, no one would identify the errant sample in the first place. In other words, sample away. Just be sure to muck that thing up beyond all recognition.

The other big copyright news concerns this Katy Perry vs. Flame outcome. Rolling Stone:

A jury unanimously ruled that Katy Perry’s 2013 hit single “Dark Horse” improperly copied Christian rapper Flame’s 2009 song “Joyful Noise.” The nine-member federal jury in a Los Angeles determined that Perry and her co-writers and producers will owe [$2.78 million in] damages for copyright infringement. […]

Perry, who was not present when the verdict was read, testified that she had never heard “Joyful Noise,” nor heard of Flame, before the lawsuit. Her co-writers testified similarly. Flame’s lawyers responded that the song was widely distributed, with millions of plays on YouTube and Spotify, and reminded the jury of Perry’s origins in the Christian music scene. His team argued that Perry and her team had ripped off the main beat and instrumental line of “Joyful Noise.”

One remarkable aspect is the quoting of YouTube and Spotify plays as evidence that obviously everyone’s heard the song. Umm … okay. Have Spotify plays been argued as evidence in court before?

My feelings, but dialed down a bit, echo those of YouTuber Adam Neely in this video (and kudos for pointing out the similarity of the phrase in question to a famous song by The Art of Noise, which I haven’t seen anyone else mention):

Additionally, Flame’s Marcus Gray added in his original complaint that “Joyful Noise” has been “irreparably tarnished by its association with the witchcraft, paganism, black magic, and Illuminati imagery evoked by the same music in ‘Dark Horse.‘” Of course, there are some kooky internet ‘theories’ out there about Katy Perry and the Illuminati. But I don’t know why people fear the Illuminati so much … if this all-powerful organization couldn’t help Katy Perry win this case then I doubt they’re competent enough to secretly run the world.1Though a hidden overload’s incompetency could explain the current state of affairs.

Better Living Through Metadata

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Prague Library

I’m finally digging into Dani Deahl’s informative article on metadata from a couple of months back in The Verge. All of the quoted text is from that article:

In an ideal world, once a song is finished, the metadata would be crafted by the artist or the artist’s producer, and they would submit that data to the record label, distributor, or publisher(s) involved for verification and distribution. In reality, the process is frequently more rushed and haphazard — artists and labels hurry the process along in order to get songs out, and metadata is frequently cleaned up later as mistakes are noticed.

Traditionally, the producer wears administrative — and therapeutic — hats in addition to the more recognized sonic-shaping guise.2Check out Richard James Burgess’s seminal The Art of Music Production for an overview of all the job entails. I could see ‘metadata’ falling under the producer’s responsibility 25+ years ago if metadata was as important as it is today. Now, ‘producer’ mostly means something different and is often the same role as the artist. So, in this better world we’re imagining, who wears the metadata hat?

I vote for the mastering engineer. There’s already an ‘elite’ rung for mastering engineers certified by the Mastered For iTunes program. Let’s find a way to certify mastering engineers (and potentially producers, or studio engineers, and even record label managers) as Metadata Ambassadors. As an artist — or a label — you will be assured that if you use a certified mastering engineer, your metadata will be collected, organized, and accurately submitted to the appropriate parties.

Of course, more artists are mastering their own work3and I have strong feelings that they should not do this, but I’ll save that rant for another day. so the process of metadata submission would be open to all. But if you enlist someone certified — that is, a person trained in the dark art of metadata — then not only will you not have to deal with it (beyond providing requested info), you can rest easy. Metadata’s sorted.

Having a centralized database and set standards for music metadata — [Jaxsta rep Joshua] Jackson’s idea of an IMDb for music — sounds like a straightforward goal, but getting there has stumped many of music’s largest and most powerful entities for decades. There are many reasons for this, but the tectonic shift to streaming is a major contributor.

Again, let’s imagine a better world. In this one, the music industry actually bands together and puts some funding into mitigating the chaos. Discogs is the closest thing we’ve got to an IMDB for music. A light partnership and investment from the industry could implement other essential data to a Discogs listing and develop an API where this information is accessed and utilized by third-party platforms. There could be a ‘pro’ view for a Discogs listing that reveals ISRCs, publishing splits, rights holder contact information, and so on. It’s not a perfect proposal, especially as much of the data will remain crowdsourced, but it would be a million times better than what we’ve got. And, most importantly, this information would exist in a web interface that is accessible and understandable to the layperson. Much more so than an online spreadsheet on some PRO’s backend.

There isn’t much agreement on if any particular arm of the music industry should lead the way or be responsible for fixing music metadata. Some think digital music distribution companies like TuneCore or DistroKid could do more to educate artists, as it’s often an artist’s only touchpoint before their music is live on streaming platforms. Others think the streaming platforms themselves could set an example for better metadata by displaying more credits, which would encourage everyone involved to make sure the data is right.

I’m co-signing all of the above. The distributors can undoubtedly do more, and none of the distributors I work with ask for exhaustive metadata. By ‘exhaustive,’ I’m talking about no-brainer stuff like songwriter and publisher names. But I’d love to see distribution go even more in-depth, asking for information like the producers, the musicians, the studio and its location … liner note stuff. I know that the streaming platforms aren’t listing this info yet but why should they if the distributors don’t have it? It’s not like Spotify is going to add liner notes when that information isn’t already available for them to exploit.

I’d love to see a significant distributor lead the way and throw down the gauntlet on metadata. To say, “we’re taking metadata seriously and will start logging the info whether anyone uses it or not.” And, once all this data is in hand, they pressure the DSPs to include it. Admittedly, including these ‘liner notes’ is but a small competitive differentiator, but it *is* one and streaming platforms need any they can get.

Pie-in-the-sky stuff, I know. But we need to imagine that better world to draw us closer to it. So, how do we make these things — or alternate solutions that drive us in a positive direction — happen?

Choosing, Not Chosen

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Here’s an informative video that inspired a spirited conversation in my household:

I can understand the overwhelming temptation to appease and filter for THE ALGORITHM when you’re making a living off your YouTube and online efforts. But there’s a loss of voice, akin to the loss of agency that casual listening creates. Rather than choosing we’re being chosen.

There’s an SEO plug-in installed on my blog, and it tells me that I should optimize my titles and my content for traffic-catching metrics. I was paying attention to its demands for a while, changing snappy short titles to longer (less fun) ones that complied with SEO-recommended character limits. I was told to insert keywords into the content and always attach eye-catching featured images (I was never good at that aspect). I’d get stressed out when the plug-in told me that I wasn’t adhering to the internet’s mysterious ordinances.

But, here’s the thing: there are many blogs and newsletters that I love, and none of these follow the rules. Some of these authors have a voice that flies in the face of these rules — one-word titles, blog posts with only a few sentences, the minimalist of minimal site layouts. I frequent these outlets for the voice of the author, not any click-worthy title or high search rank. I fear that if we all follow the SEO or algorithmic guidelines, then these voices would disappear. Pleasing the SEO computer is trying to please everyone, and we all know the cliché about what happens when you try to please everyone. But it’s more than ending up not pleasing anybody — it’s about not connecting with your people, to not have a flag on the map of your territory, to be invisible from your tribe.

There are those who are going for mass and, according to their goals, choose to follow the rules. That’s cool. Derek Muller, in the video above, is doing so grudgingly but he’s in the machine where 5 million vs. 10 million views have a direct impact on his project’s budget. Veritasium is a channel with — at the least — staff and travel requirements, so there’s a good reason to keep the views and funding high.4And it’s a well-done science channel, worth your subscription in my opinion. But my needs — and the needs of the bloggers and channels I follow — are different. We’re looking for that longterm connection and an audience that’s on board because of our way of saying things. It’s not that Derek doesn’t want that — it’s evident from his video that his voice and point of view are essential and he’s struggling with maintaining these — but the success of his platform is affected by more important things. On the other hand, at this point, I measure my success by people enjoying what I do and, to paraphrase Seth Godin, missing me when I’ve gone quiet.

I’m thinking about the direction of this blog all of the time. I change my mind about it constantly. But what always sticks is that I want it to be fun for you and — most importantly, if I’m honest — fun for me. I’m using this to find my people, to have conversations, and make those connections. And I’m using it to find potential friends, collaborators, clients, and employers. An SEO plug-in’s suggestions won’t be much help there. I see these imposed guidelines as a detriment and I’m happy to resist. So expect the blog to get more personal, more specialized, and obtuse — my private-made-public playground. No holding back the freak flag.