8Sided Blog

the scene celebrates itself

Micro-Licensing and the Act of Crossing Fingers

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Micro-licensing sites — where you add your music to an online library portal and licensing rights are granted for a small fee — have an allure. For one thing, they’re convenient as you merely upload your songs and fill in some info. The only other step is to cross your fingers and hope your music takes off on the site. Micro-licensing sites promote royalty in scale — that if your music is successful, it won’t matter that the license fee is $15 (or whatever). Thousands of those will add up.

But it’s common knowledge that it’s a 1% of 1% that have such success on these sites. And I’d wager these successful composers work super-hard at it, doing quite a bit more than crossing fingers.

You also have to accept that, in most cases, you’re losing complete control of your work when you supply music to one of these content providers. You don’t know who’s licensing, and you certainly can’t deny a license, and you won’t be able to gauge or benefit from a commercial entity making loads of money off your work.

Stock photo sites operate the same. Which brings us to this story reported in Petapixel:

It turns out a Newfoundland-based company called Islandwide Distributors (IWD) had licensed [Michael] Stemm’s photo royalty-free from Shutterstock for just $1.88. The company then turned around and made at least 500,000 units of products with it [and sold the products in Walmart stores across Canada] — Stemm learned this number after reaching out to the company. So while Stemm’s experience may seem unfair, it was likely entirely lawful and within Islandwide’s rights.

The salt on the wound:

Unfortunately for Stemm, he isn’t even able to withdraw the $1.88 he earned, as his account needs to reach a balance of $50 before he can see the funds.

Techdirt has no sympathy for Stemm:

Stemm said Shutterstock could license the photo. Shutterstock did exactly that. The fact that Walmart has more than 500,000 items featuring Stemm’s photo is probably unexpected, but if you really want to retain full rights to your creation, you don’t hand part of those rights over to a middleman. When Walmart licensed the picture from Shutterstock, it didn’t seek Stemm’s permission because it didn’t need Stemm’s permission. […]

It certainly seems unfair when a company can make hundreds of dollars from a $1.88 license. But there’s nothing unfair about a process that involves a voluntary relinquishment of control. Shutterstock can certainly find a greater market for someone’s photos, but no one should go into this relationship believing it will result in newfound personal wealth.

I agree with Techdirt’s sentiment here — when you enter into an arrangement with a stock photo library, or a music library, or the record label that will own the rights to your songs, you need to accept what you’re getting into. Moving forward, any mistake is but a learning moment as you got yourself into the mess. According to Petapixel, even Stemm admits he didn’t read Shutterstock’s licensing terms before clicking ‘submit.’

That said, I do believe these sites could do a better job explaining what’s in store for content creators and to favor realistic expectations. The idea that an artist will make ‘easy money’ through a micro-licensing site supports a rare exception. The artist might have better luck buying lottery tickets. Just like the lottery, the allure is strong — I’ve certainly been tempted, by both these licensing libraries and the lottery. And it’s okay if you play — just understand the agreement that you’re entering, the potential outcomes, and how frustrating it is to be in Michael Stemm’s position.

Trouble for the Two-Second Sample

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There’s a misconception that sampling has a time limit, that one can legally sample anything (a drum hit, a vocal yelp, a guitar riff) as long as it’s short. I’ve heard various guidelines set for this assumption with the two-second mark as the most common. It’s not true. If a judge or jury can identify a sound — any sound — as originating from a copyrighted source, you’re probably in trouble.

Granted, the US courts have not been consistent in how they rule on this, and it’s fair to say there’s no set precedent here. But, in the EU, this may no longer be the case thanks to repeatedly snubbed Rock-and-Roll-Hall-of-Famers Kraftwerk and the synthesized sound of banging metal.

via Billboard:

The case involves a two-second sample from “Metall auf Metall,” which the producers Moses Pelham and Martin Haas used as a continuous background loop in the 1997 song “Nur Mir.” Although the sample consists of just two seconds of the original song, it’s recognizable and important in “Nur Mir,” which is performed by the singer Sabrina Setlur. […]

… Advocate General Maciej Szpunar advised the European Court of Justice, which is deciding a copyright case that involves Kraftwerk’s “Metall of Metall,” that even limited sampling of a recording can constitute copyright infringement. Advocate General opinions are not binding, but they’re watched closely, since they often predict the way the high court of Europe will decide cases.

The case is interesting as it involves only the recording (master) side of the music and not the composition (written song). The idea is that one can take a ‘sample’ of a written song in isolation — such as a couple of notes or a few words — and it would be too general to constitute infringement. The failure of the recent “haters gonna hate” lawsuit illustrates this. But a recording is specific, easily traced to its rights-holder. Complete Music Update once again provides the most helpful explainer:

Basically, when you sample a two second clip of a track, you are sampling both the recording and the song contained within it. But it might be hard to argue that the two second snippet of the song can be protected by copyright in isolation. However, at the same time you could argue that the two second snippet of the recording is.

The ‘Metal On Metal’ case centres on the recording rights. In essence, in the 2012 court hearing, when one argument on the Kraftwerk side was that Pelham could have recreated the sounds he sampled, they were basically saying that there was no song copyright to infringe here, but that the separate recording copyright had been infringed by the uncleared sample.

In his ruling, the Advocate General wrote, “A phonogram is not an intellectual creation consisting of a composition of elements such as words, sounds, colours etc. A phonogram is a fixation of sounds which is protected, not by virtue of the arrangement of those sounds, but rather on account of the fixation itself.” Feel free to substitute ‘phonogram’ with ‘recording’ as you read that.

Billboard again:

Some of the questions referred to the European Court of Justice involve details of European law, including whether the German concept of free use is compatible with EU law. But others get to the center of the debate around copyright and free expression. Generally, most countries’ courts have held that quotation doesn’t infringe copyright when a new work refers to the original one – in a book review, or even in a parody of a song. But what about when the new work has nothing to do with the original? Such questions have increased urgency in the digital age, and this is one of several important cases on the topic.

I wonder if this will create more consistency in how the courts rule on ‘short sample’ cases in the US. And I also wonder if New Order ever had to pony up for their own short Kraftwerk sample in “Blue Monday.”

“Blurred Lines” Precedent Won’t Bring Clarity

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It’s finally over, but this probably won’t be the last post about it. Via Forbes:

The five-year copyright battle surrounding the popular single “Blurred Lines” finally ended this week with a judgment of nearly $5 million against artists Robin Thicke and Pharrell Williams. Marvin Gaye’s family had accused the duo of infringing Gaye’s 1977 song “Got to Give It Up.” California Judge John A. Kronstadt’s final ruling, which entitles the Gaye family to half of all royalties to the song moving forward, effectively puts an end to the highly publicized lawsuit. […]

Thicke and Pharrell … failed to petition the U.S. Supreme Court for a writ of certiorari by the applicable deadline. As a result, the judgment has been entered against them, and the case is now effectively closed.

The controversial “Blurred Lines” copyright infringement case is officially precedent. If there’s any silver lining for Thicke & co., it’s that the Marvin Gaye estate only gets 50% of future royalties. I’m surprised they didn’t get 100% (which is not out-of-bounds in infringement rulings).

In the end, the most interesting court case related to this ruling won’t be the “Blurred Lines” affair but what ends up being the first similar high-profile copyright lawsuit to follow. Who will it be? Led Zeppelin vs. Greta Van Fleet? The Fall vs. Pavement? The Bob Marley estate vs. every contemporary reggae artist?

I kid. But the test will be how far someone wants to take this precedent. In an age when there’s a lawsuit over the lyric “haters gonna hate,” you can bet the limits of the ruling will get tested sooner than later. I’m not even sure how a jury could reach a sensible conclusion, as similarity in style is arguably subjective. I have a mental image of a bunch of stoners sitting around a turntable, and one says, “man, this sounds just like The Piper at the Gates of Dawn,” and everyone agrees.

There’s a fine explainer in The Vulture with copyright expert Jeff Peretz:

… the issue at stake in this case is the “how,” not the “what” — in other words, how the song is presented. Pharrell admittedly set out to create a “party” song in the style of “GTGIU” knowing full well it was within the legal boundaries to do so. He, in essence, walked right up to the legal line but made sure not to cross it. What the original decision did was move the line. By letting it stand in appeal, Judge Milan D. Smith Jr., who wrote the majority opinion, has literally changed the rules. But if the difference between “what” and “how” were properly explained to the jury the first time around, this never would have gotten this far.

Law professor Edward Lee argues in Billboard that the “Blurred Lines” sonic homage to Marvin Gaye could have fallen under ‘fair use:’

I’m not sure which account best explains what happened. But the jury believed Pharrell and Thicke copied from “Got to Give It Up,” and hence the verdict. What would have happened if Pharrell and Thicke invoked fair use and told the jury that they borrowed a small part of the ’70s groove from Gaye’s song, but gave it new meaning, a different character and new expression in a modern pop, dance song fitting today’s tastes? Surely, no one would mistake “Blurred Lines” for a song from the ’70s — it has a much different character. Of course, the jury might have rejected that defense as well, but fair use fits better with Thicke’s original explanation in GQ that the duo intended to borrow the groove of “Got to Give It Up” in creating their new song. Moreover, having the jury or court balance the factors of fair use provides a more nuanced and realistic assessment of the competing interests at stake than the simple test of infringement does.

He adds: “The music world needs a clear decision applying fair use to a non-parody musical work. Without it, copyright lawsuits will only increase.” It’s no surprise that I agree. The democratization of distribution, in turn making almost every artist work available to the public, is leading to an overflow and breakdown of copyright litigation. No artist creates in a vacuum, and if we want to continue to creatively ‘Steal LIke An Artist,’ then something’s got to give.

Mechanical Royalty Rates Revisited

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America’s Copyright Royalty Board yesterday got around to thinking about what the country’s mechanical royalty rates should be for the next five years.

Mechanical royalties – paid to songwriters when recordings of their songs are copied and distributed – are covered by a compulsory license Stateside. Which means songwriters and music publishers are obliged to license third parties making and distributing those copies at a statutory rate, so that rate-setting processes like this one are rather important.

Traditionally the main customers of mechanical rights have been record companies, which need a license from the relevant songwriter or music publisher every time they press a CD.

In the US, unlike in Europe, it was the label which paid the mechanical royalties on downloads too, so that iTunes didn’t have to worry about making sure the owner of the song copyright was paid their share of any income.

However with streams, where both the mechanical and performing rights of the copyright are exploited, it is the digital platform that is the licensee and which therefore pays the mechanical royalties directly to the writer or publisher (or not as the case may be, as those songwriter lawsuits against various streaming services have demonstrated).

Discs and downloads also remain a decent part of the recorded music business for now of course, but – after a bit of a stand off – the US record industry reached a deal with the music publishers on mechanical royalty rates last year. Which means that the CRB hearing is very much focused on the rates paid by the streaming services, which are, after all, where all the growth is in recorded music these days.

The tech giants are expected to argue to reduce the amount they pay, while the National Music Publisher’s Association and the Nashville Songwriters Association International will lobby for an increase.

NMPA wants songwriters to be paid each time their song is played, or each time a user purchases a subscription. It also wants to share the profits from the sale of technology and subscriptions that include access to music.

The US government has been setting mechanical royalty rates for over 100 years, beginning in 1909 when Congress determined that the rights would be subject to a compulsory license. This means that anyone can record a songwriter’s work for a fixed rate without permission or approval. Congress used to set this rate, but has since delegated the task to the CRB judges. The current rates were set over ten years ago when digital streaming was just starting to take off.

That Music Rights Shell Game

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Routenote:

With the release of iOS 10, song lyrics are now displayed within Apple Music. Apple have received incredibly positive feedback from members, who can now follow along during playback of their favourite songs. To ensure songwriters are paid Apple is obtaining the licenses required to display lyrics in Apple Music. Apple rely on accurate songwriter and composer data to efficiently obtain these licenses.



O RLY?

Music•Technology•Policy:

Apple says to “make sure the ownership of your song is registered with a publisher, and that they have registered ownership with relevant publishing agencies such as ASCAP, BMI, PRS, Harry Fox and Music Reports.” That obviously is misleading.



First of all, we can’t be that surprised that Apple has this impression because as we all know, it is frequently lost on HFA and MRI that neither of them is in fact the government. However, given that Amazon, Google, Pandora and others are sending millions upon millions of NOIs to the Copyright Office claiming to have no idea who owns songs by very well known artists, it should make it obvious that the one place you need to “register” your song copyright ownership is with the U.S. Copyright Office.



It’s also misleading to state that you have to have “the ownership of your songs…register[ed] with a publisher” which may happen frequently, but is not required to enjoy ownership rights.



That unified music metadata database (Blockchain, etc) that keeps getting bandied about can’t come soon enough.

Video: Saving “Happy Birthday”

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Here’s a short video documentary on the sinuous story of that song everybody knows and sings and how overnight it went from being a Warner/Chappell cash cow to the public domain. The affair offers some insight into the often complicated worlds of music publishing and rights management.

For years, global music publisher Warner/Chappell claimed copyright of the “Happy Birthday” song, demanding payment for any public performance of it. Jenn Nelson tells the story of her four-year campaign to prove that the company did not in fact own the rights to the world-famous song, whose tune was composed by two sisters in Kentucky in 1893.



Previously: HERE and HERE and HERE,

The History Of Copyright And The Wunderkind Of The Free Culture Movement

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On The Media:

In a new book, The Idealist, writer Justin Peters places {Aaron} Swartz within the fraught, often colorful, history of copyright in America. Brooke {Gladstone} talks with Peters about Swartz’s legacy and the long line of “data moralists” who came before him.



Via the always dependable On The Media, this is a fascinating report on copyright law and the contemporary influence of the sadly departed Aaron Swartz, alongside some enlightening historical context. We’re also treated to this quote from the dawn of copyright legislation: “My neighbor might love the light but that gives him no right to steal my candles.” Have a listen:

Untangling Streaming’s Copyright Conundrum

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For publishers, purchases result in mechanical royalties that are paid by record labels, which must match their recordings to the associated songwriters and pay the publishers accordingly. In contrast, streaming royalties are paid by the streaming service, shifting the administrative burden to companies like Spotify. Both purchases and on-demand streams require mechanical licenses to be obtained from publishers. This is where Spotify appears to have problems — it does not have publishing licenses for all the songs it streams.

A key problem is the compulsory license used by subscription services. A subscription service doesn’t need to secure mechanical licenses from publishers in advance of adding their musical works to its catalog. It can send what’s called a notice of intent and simply pay the appropriate royalties. But it’s not quite that easy in practice.

Because record labels are not required to provide publishing information associated with their sound recordings, services don’t always know which publishers they’re supposed to contact and pay. The end result is an incomplete record of songwriting credits and publishers for tens of millions of tracks.

Major music companies, which have equity in Spotify, want the streaming space to grow and believe imposing damages “could trigger mutually assured destruction,” one industry participant told Billboard. That could explain why some publishers are trying to reach a resolution with Spotify through the NMPA that would deliver back royalties in return for foregoing legal action.

Here’s the thing about copyright law: historically, as new technologies come along, copyright has a lot of trouble dealing with them. And, typically, the pattern is that the industry freaks out and tries to stop the new technology, but eventually someone duct tapes on a new bit of copyright law to cover it. Unfortunately, this means that there are all these weird periphery sections of copyright law that are supposed to apply to specific circumstances, which then get made obsolete by later technological situations, and it leads to lots of confusion and anger… and lawsuits.

There is also a complex bit of copyright law, known as Section 115, which gives the specifics on compulsory licensing of mechanical licenses in certain circumstances, if certain rules are followed. But here’s the crazy thing: it’s 2016 now, streaming services have been around for years, and still no one’s entirely sure if Section 115 compulsories actually apply to them. It’s never actually been tested and many services (including Spotify) assume they do, but a potentially big question is whether or not they really do.

Spotify can (and likely will) argue that it complied with the rules required in Section 115(b) for a “notice of intention” in order to get the compulsory mechanical license. Basically, Spotify would argue that it did what is necessary to get a compulsory mechanical license when it was unsure of who held the publishing/songwriting rights on a song. If it actually did do this, {David} Lowery’s case may be dead in the water — though I’m guessing Lowery’s lawyers will argue that it failed in some aspect of properly using Section 115 — or, as mentioned above, that Section 115 doesn’t actually apply to streaming services. If Spotify did not actually follow Section 115’s rules, then Lowery’s case suddenly is a lot stronger. Similarly, if a court suddenly determines that Section 115 doesn’t apply… well, then a lot of streaming services are in serious trouble.

Make no mistake, people … we – the music industry – are at fault here. Our data is fucked and in some cases non-existent. We all know it.

Some labels / distributors don’t upload the relevant meta or do and it’s corrupt and thus this situation arises. We need a global rights database … we’ve needed one for years. It’s time for this to be actioned properly with full support from every corner of the business. Until now much of the industry has been a bunch of lazy bastards cutting corners or uploading bad data at the expense of our life blood – the artists. That is unacceptable. If the meta was there Spotify would pay.

And despite having blanket licenses in place we are letting the services we deliver to take the blame for our industry-wide tardy incompetence. It actually saddens me that of all the digital service providers {David Lowrey} could have chosen to go after he’s going after one that actually recognizes this fact and are actively trying to build one. If Spotify are found to be at fault here every DSP will be guilty of this without exception. But I believe the fundamental fault here lies with us, the industry. Not the service … and we have a collective responsibility to sort this out.

Copyright Not Intended / Everything Is A Remix

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I decided to listen to some older installments of the highly entertaining Hello Internet podcast over the weekend. I quickly ran across the second episode which revolves around an excellent discussion / debate on copyright:

The web documentary Everything Is A Remix is referenced, and is worth a view:



Update: via Hollywood Reporter, this news item ties in with the themes in the podcast and video above:

{Regarding the proposed film Axanar} Paramount and CBS, represented by attorneys at Loeb & Loeb, are now demanding an injunction as well as damages for direct, contributory and vicarious copyright infringement. Although the plaintiffs have allowed ample cosplaying over the years and even permitted other derivatives like amateur Star Trek shows to circulate, the lawsuit illustrates that there is a place where no man has gone before, where the entertainment studios are not willing to let be occupied: crowdfunded, professional-quality films that use copyrighted “elements” like Vulcans and Klingons, Federation starships, phasers and stuff like the “look and feel of the planet, the characters’ costumes, their pointy ears and their distinctive hairstyle.”

The “Blurred Lines” Verdict And Dance Music

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Thump:

The [“Blurred Lines”] verdict has, perhaps unintentionally, shifted the interpretation of music copyright beyond composition, towards sound itself. This poses an interesting problem for electronic music producers whose personas are, through hours spent toiling over oscillators and EQs, often linked to intentionally crafted sonic characteristics. How much can these artists legally grasp for to protect the sound that they have created from a deluge of imitators?


In this piece Thump speaks with UK Music Lawyer Ben Challis who, like me, feels this verdict was wrong-headed and has troubling implications for creators (and not just in music, or dance music, when you really think about it).

Ben Challis: My personal opinion was that the jury got it wrong. It’s a very grey area and everyone made those puns about “blurred lines,” but it is a very grey area and judges have always struggled to define what is inspiration and what’s appropriation. Yes, the two recordings sound pretty similar, but the whole case is about the song, and in my own personal opinion the songs are not similar. If the case had been brought by the company that owned the sound recording I might have supported the decision.



Thump: What’s the difference between an electronic musician hearing another contemporary track and saying “I want to make that sound,” and Pharrell Williams saying “I really like that aural quality, that sound that Marvin Gaye had.” In both cases, you are trying to replicate a specific quality, a specific sound, correct?



Ben Challis: Correct. I don’t think there is a difference in what you’re saying or the question you’re asking. It’s the same question and of course again you can be influenced by someone, you can be inspired by someone, that’s fine in legal terms. What you can’t do is appropriate someone else’s work or copy their work, or at least copy a substantial amount of their work.


Update: I also ran across this fine article for WIPO Magazine by Ben Challis that goes into greater detail about the “Blurred Lines” verdict and gives some historical, legal background.

As Time Magazine put it, the decision would have a “chilling effect” on future song writing. Some went further, arguing that sampling should be recognized as an integral part of modern music creation, and that the case showed that copyright law was out of touch with current methods of music production. There are only a limited number of notes on the standard musical scale and surely it was now generally accepted that certain expressions cannot be subject to copyright, they said. Others argued that one of the purposes of copyright is to encourage creativity, not stifle it – hence the position that copyright only protects the expression of ideas, not ideas themselves. And yet others contended that transformative use can, at least in the United States, be protected as fair use. The general feeling seemed to be: “some protection is good – too much protection is not good”. As ever, it’s all down to where you draw the line.



Unsurprisingly, an appeal in the Blurred Lines case has already been formally announced.