8Sided Blog

a zine about sound, culture, and the punk rock dream

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.

Spotify Settles With Songwriters

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Billboard:

Spotify has reached a settlement with a group of songwriters who had sued for copyright infringement, eliminating an potential complication to the public offering that the streaming service is planning later this year.



Under the agreement which will need to be approved by the court, the streaming company will set up a fund worth $43.4 million to compensate songwriters and publishers whose compositions the service used without paying mechanical royalties.



Spotify has to pay record labels to use their recordings and publishers to use the underlying compositions; it pays mechanical royalties directly to publishers and public performance royalties to performing-rights groups like ASCAP, which distribute the money to their member publishers and songwriters. Streaming services don’t need to negotiate with publishers, since they can take advantage of a “statutory license” offered by the federal government.



But they need to find the right publishers to pay — a challenge in cases where recordings have entered Spotify’s system without proper metadata. Spotify has always made a point of holding money aside for publishers it couldn’t identify, but doing so doesn’t make it compliant with copyright law.



Beyond past and future compensation, the settlement agreement outlines a process by which Spotify and the class counsel “will work collaboratively to improve the gathering and collecting of information about composition owners to help ensure those owners are paid their royalties in the future,” according to the plaintiffs’ motion.



Previously, Previously, and Previously.



Update: Complete Music Update does a great job explaining this mess:

In some countries, the music publishing sector has traditionally licensed the performing and mechanical rights separately through different entities, meaning streaming firms need to ensure that – not only do they have deals in place for both recordings and songs – those deals cover both the performing and mechanical rights of any works streamed.



In the US this has proven challenging, because while there are collecting societies that licence performing rights, there is no one-stop society that represents mechanical rights. In other countries where the two elements of the copyright are licensed separately, there is a mechanical rights society that can provide a licence to cover any songs that are not subject to direct deals between the streaming firms and the big music publishers.



On one level this shouldn’t matter because there is a compulsory licence covering mechanicals in the US, which includes a set statutory rate to be paid, so streaming services don’t need to negotiate terms and they know from the outset what the mechanical costs will be. However, the compulsory licence obliges the streaming service to alert each and every rights owner that it intends to exploit their work or – where they can’t identify the owner – it should file paperwork with the US Copyright Office instead.



Few services did this, mainly because of the big music rights data problem, whereby there is no one stop publicly accessible database to tell you who controls which song copyrights, nor which song is contained in which recording. However, by failing to adhere to the formalities of the compulsory licence, whenever a streaming service streams a song in the US which is not covered by one of its direct publisher licences, it is technically committing copyright infringement.


Update 2: Music•Technology•Policy:

Compare Spotify to Facebook. Facebook has no licenses. None. Zero. Zilch. They know they have no licenses and they don’t seem to be in much of a hurry to solve this problem. For all of Spotify’s problems, Facebook is not Spotify. Facebook is a royalty deadbeat.



What the Spotify cases should tell Facebook is that Facebook should not expect to get a pass for their bad behavior. Facebook should expect to write a very large check for the past and a very large check for the future.

Sampling in the 21st Century

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DJ Shadow in The Guardian:

“I’ve always believed in clearing samples, however I believe it needs to be done on a musicologist basis.” This would involve, {DJ Shadow} explains, breaking down a song in a forensic way, and working out compensation accordingly: “This bass line sample constitutes – based on the space that it occupies and the number of seconds that it plays over the course of the track, in relation to other elements that come and go … this sample is worth 16.7% of the composition.”



“Now, if that could be done,” he says, “then I would clear everything. But the problem is, you go to the first person – they want 75% whether they deserve it or not. You go to the next person they want 70% – whoops – you can’t cut a pie that many times, there isn’t enough pie to go around.”



“In a strange sense I feel like music has never been worth less as a commodity, and yet sampling has never been more risky. We work in a hyper-capitalist time, where you grab what you can, get everything you can, doesn’t matter whether it’s right or wrong, it doesn’t matter whether it’s valid, it doesn’t matter whether it’s deserved.”



My own story: I had to leave a song off Invisible Airline because it had a short vocal sample, and the publisher for the sampled artist (hardly a ‘big name’) wanted $10,000 and 75% ownership of the final song to clear it.

Then there’s the unfortunate case of De La Soul, via The New York Times:

“We’re in the Library of Congress, but we’re not on iTunes,” {De La Soul member Posdnuos AKA Kelvin} Mercer said, adding that when the group interacts with fans in person or online, they always ask the same question: “Yo, where’s the old stuff?”



That old stuff may be fraught with problems, according to people familiar with the group’s recording and publishing history. In 1989, obtaining the permission of musical copyright holders for the use of their intellectual property was often an afterthought. There was little precedent for young artists’ mining their parents’ record collections for source material and little regulation or guidelines for that process.



“My understanding is that due to allegedly uncleared samples, Warners has been uncomfortable or unwilling to license a lot of the De La Soul stuff,” {sample-clearance agent Deborah} Mannis-Gardner said. “It becomes difficult opening these cans of worms — were things possibly cleared with a handshake?”



An added possible complication lies in the language of the agreements drafted for the use of all those samples. (There are more than 60 on “3 Feet High and Rising” alone — the group was sued by the Turtles in 1991 for the use of their song “You Showed Me” on a skit on that album and settled out of court for a reported $1.7 million.) If those agreements, written nearly three decades ago, do not account for formats other than CDs, vinyl LPs and cassettes, Warner Music would have to renegotiate terms for every sample on the group’s first four records with their respective copyright holders to make those available digitally.



In a statement, a person speaking for Rhino, a subsidiary of Warner Music Group that deals with the label’s back catalog, said: “De La Soul is one of hip-hop’s seminal acts, and we’d love for their music to reach audiences on digital platforms around the world, but we don’t believe it is possible to clear all of the samples for digital use, and we wouldn’t want to release the albums other than in their complete, original forms. We understand this is very frustrating for the artists and the fans; it is frustrating for us, too.”



There’s an understandable nostalgia for the anything-goes sampling climate of the late-80s/early-90s, and a lot of sample-free music made today would sound completely different if that anomalous musical era didn’t happen. Now we’re seeing technological solutions paving the way for new sample-based producers, through services like Tracklib and maybe even Dubset (if you can clear unauthorized remixes using Dubset, then why not clear samples eventually?). But these services can’t replicate the thrill and risk of surreptitiously sampling a favorite groove into your production. Take my word for it … it can be intoxicating.

Mechanical Royalty Rates Revisited

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Complete Music Update:

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.



Music Business Worldwide:

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,

Encouraging Steps Towards Closing The Publisher Data Gap

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Music Industry Blog:

Artist concerns about transparency in streaming services are well founded but it is an eminently fixable problem because virtually all of the necessary data is in place. When a record label or distributor licenses music to a service it literally provides a data file of its music which is then ingested (uploaded) by the service. But when service licenses from a music publisher or PRO there is no such data file, because the recorded works are owned by the labels. Publishers do not even provide a comprehensive list of what works their license covers. So music services instead do a ‘best efforts’ licensing effort, licensing all the key publishers and PROs.

The problem is that until there is a market level solution that sort of action won’t go away. This means any music service operating in the US, where there is a statutory damages system, cannot operate with certainty that it will not face another legal suit with potentially vast damages awarded. The nightmare scenario is that streaming services start pulling out of the US, or restricting their catalogue to identified works (which largely means major publishers only) rather than face potentially fatal legal challenges.

The music industry needs a solution and now just like busses that never come, two arrive at once: Google’s Open Source Validation Tool for DDEX Standard and Canadian PRO (Performing Rights Organization) SOCAN has acquired Medianet essentially as a digital rights reporting play.

Previously.

I sort of feel like the old guy grumbling “we can land a man on the moon but we can’t even (insert impossible thing here)”, but in this data-obsessed age we really should have a centralized publishers database that can be updated and utilized throughout the industry. Hopefully multiple companies getting involved (there are also rumors of Music Reports entering the fray) will finally bear some fruit, and we can begin slowly stumbling our way out of this wild west phase of the streaming economy.

A Boost for DJ Mixes and the New Streaming ‘Sub-Economy’

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Billboard:

The National Music Publishers’ Association (NMPA) and Dubset have reached a deal that will allow the NMPA’s independent members, both publishing companies and songwriters, to take part in a new streaming “sub-economy” that only recently became technologically feasible. This new revenue source is through derivative works, or pieces of music that are wholly or partially based on others’ creations, like DJ mixes and remixes. Through its MixBANK, Dubset cross-sections these creations and identifies their constituent parts (a vocal line here, one-half of an entire song there), determines the appropriate royalty splits, then services them to its clients, like Apple Music.

Dubset isn’t the only company making advances in this highly technical space. SoundCloud’s new subscription service, Go, uses an undisclosed process to identify derivative works, which its platform has plenty of. (This, despite a recent report to the contrary.)

Hypebot:

Through the Rights Agreement, NMPA members who opt-in will have access to Dubset’s MixBANK platform where they can set terms and rules around how and where their catalog may be used in mix content. Each time a new mix or remix is delivered to MixBANK the clearance rules set by rights holders to determine whether the content is cleared for distribution are applied. Cleared mix and remix content is then made available to legal music services under an approved royalty structure.

Pay no mind to Digital Music News’s shadowy anonymous sources … DJ mixes and remix culture are on the rise in the social sphere.

(Previously)

Update (May 25, 2016); via Hypebot:

Dubset Media announced today that it has reached an agreement with Spotify to use its MixBANK distribution platform. The deal makes it possible for DJs to upload and legally stream their mixes and single track remixes. In addition, the new agreement is expected to enable Spotify listeners to stream radio shows and other user generated mixes that have not been previously legally available to music fans.

Harry Fox Agency In The Crosshairs

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Techdirt:

One of the key questions that came up following the reporting on {Spotify’s royalty lawsuit crisis} is the Harry Fox Agency’s role in all of this. HFA, an organization that was set up by the publishers themselves is supposed to be responsible for managing compulsory licensing for the vast majority (though not all) of popular songwriters (remember, HFA is about compositions/publishing, not sound recordings). But it’s beginning to look seriously like HFA just fell asleep on the job and didn’t bother to do the one key thing it was supposed to do for all these music services: file Section 115 NOIs.

So, given that, it sure looks like HFA didn’t do the one thing that it was supposed to be doing all along, and that’s… going to be bad news for someone. The big question is who? All of the lawsuits have been against the various music services, but without being privy to the contracts between HFA and the music services themselves, I’d be shocked if they didn’t include some sort of indemnity clauses, basically saying that if music isn’t licensed because of HFA’s own failures to do its job that any liability falls back on HFA.

And, if that’s the case, HFA could be on the hook for a ton of copyright infringement. If it’s true that it’s basically been ignoring the fairly simple NOI process for a lot of artists, then that’s going to be a major scandal – but one that seems a lot harder to pin on the music services themselves.

Digital Music News:

Sources {have} pointed to an effort by Music Reports to ‘seize the moment of incompetence‘ at Harry Fox Agency, or HFA, a staunch Music Reports competitor in the mechanical licensing space.  As the mechanical licensing agency for Spotify, HFA has been receiving heavy blame for the current Spotify royalty crisis, specifically for failing to send proper paperwork to artists, maintain a robust rights database, or create a system to fix its existing database issues.

The Music Reports ‘claims database’ would offer a possible solution to that mess, at least as it relates to this specific license.  More importantly, it would save Spotify from having to build the damn database: according to details tipped to Digital Music News, an out-of-court solution forged by the National Music Publishers’ Association (NMPA) would see Spotify paying a one-time penalty for the non-payments, while also creating an interface for artists that would match all mechanical royalties to their rightful owners.  And, share that data back to HFA.

As details of the NMPA resolution emerged, a number of industry executives wondered why Harry Fox would be exonerated, while leveraging Spotify to build its core database.  HFA’s former ownership by the NMPA has also drawn criticisms of cronyism, and Apple has already started to move away from the company (and towards Music Reports).  Meanwhile, the Agency’s lowball $20 million purchase by SESAC is now being viewed a bit differently: according to some insiders, the soggy price tag carried serious liability costs, the worst of which may lie ahead.