COPYRIGHT AND ELECTRONIC DANCE MUSIC PRODUCTION: WHAT ARE THE LEGAL RISKS TO PRODUCERS?
I. EDM and Copyright
Electronic Dance Music, commonly referred to as “EDM,” is a broad musical genre encompassing a variety of subgenres that vary based on tempo, influences imported from other genres, and a host of other attributes. Essential to all forms of EDM is the concept of combining a variety of recorded sounds to craft a cohesive musical track. Producers of EDM music will acquire a library of sounds with which to work from diverse sources, sometimes personally making their own recordings of instruments, and others making use of pre-existing sounds. As one might imagine, copyright protection is likely to be implicated whenever a producer makes use of someone else’s sound recording. Although statute and case law provide some guidance as to which uses of such pre-existing sound recordings may expose producers to liability for copyright infringement, the risk of lawsuit for a given use may not always be apparent.
II. Sampling and Remixing: Sources of Sound
Two common manners in which producers will use pre-existing sound recordings are those of “sampling” and “remixing.” Sampling refers to the taking by a producer of a fraction of another artist’s sound recording for arrangement in a novel way among other sounds within the producer’s own track. A producer seeking to sample from a given sound recording may elect to “clear” that sample with the owners of various copyrights in that recording by paying some combination of a fee and per unit royalties based on future sales of the track containing the sample. However, the expense of sample clearance may prove too onerous for an up-and-coming producer, and thus he or she may decide to forego the associated risk management benefits and release the track without sample clearance. Another option for producers to acquire samples in a relatively risk-free manner is that of purchasing “sample libraries,” or collections of sounds that come bundled with an associated license to incorporate them into tracks. The license accompanying the sounds in sample libraries will generally permit commercial use, however the licensing agreement may stipulate certain restrictions on the use of those sounds.
Remixing refers to a producer’s alteration of a sound recording to create a new version that is still clearly referential to the original. A producer may receive authorization from the artist or record label holding the copyright in the original sound recording to remix that recording, in which case the producer will receive selected samples of the original to incorporate into and modify in the remix. While the producer may be compensated and will benefit from building a reputation as a remixer, he or she will typically not retain any ongoing ownership rights in the remix. An additional concern for authorized remixing lies in the sourcing of the sounds that the producer adds to the samples he or she is given by the artist or record label: if those added sounds are sampled, he or she is faced with the same dilemma of whether or not to invest in seeking clearance. Just as a producer may opt to sample without clearance, so too could he or she remix without authorization and essentially craft a remix by sampling large portions of another artist’s work to remix it without permission. While it is readily apparent that seeking clearance for samples and only remixing with authorization from the copyright holders will best shield producers from liability for copyright infringement, practical economic realities have led and continue to lead some producers to neglect these forms of liability management.
III. Copyright Law: Guidance from the Copyright Act and Case Law
Title 17 of the United States Code, also known as the Copyright Act, illuminates the copyright concerns that inform the incentives for producers to clear samples and seek authorization for remixes. 17 U.S.C. §102 notes that both musical works and sound recordings are copyrightable: thus, unauthorized use of a sound recording could lead to infringement of the copyright in that sound recording as well as infringement of the copyright in the underlying musical work. An EDM producer engaging in unauthorized remixing or sampling of a song would be concerned with infringing on the copyright holders’ exclusive rights to reproduction and distribution under §106(1) and §106(3), respectively. Unauthorized remixing could further infringe upon the exclusive right of the copyright holders to control “derivative works” of the song under §106(2): a remix fits neatly into the category of “derivative work” as defined in §101 because it is explicitly intended to be an adaptation of the original song. Although §114(b) limits the sound recording copyright holder’s §106(1) and §106(2) exclusive rights by allowing others to independently recreate and record the same or similar sounds, this limitation does not shield producers from liability to the sound recording copyright holder because both sampling and remixing directly import selections from the original sound recording. These provisions collectively indicate that a producer may be vulnerable to various infringement claims from multiple copyright holders absent proper authorization, and the Sixth Circuit has given a strong affirmation that this is the case.
In Bridgeport Music v. Dimension Films, the Sixth Circuit addressed the issue of whether or not a two-second sample taken from a guitar solo, lowered in pitch, then “looped” to lengthen the piece was legally substantial enough to constitute actionable infringement. The court adopted a bright line test, holding that a sound recording copyright holder has an exclusive right to sample that recording. In so holding, the court rejected a de minimis defense to using unlicensed samples of short duration and sent the clear message that a producer should get a license or refrain from sampling. The court did soften this bright line test to some extent by making no findings on the applicability of the affirmative defense of “fair use,” however the fair use defense is uncertain at best where EDM production is concerned. 17 U.S.C. §107 enumerates four statutory factors that the courts may weigh in determining whether a use was fair: the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and the effect of the use upon the potential market for or value of the copyrighted work. §107 is a codification of the judicially-articulated doctrine of fair use: it affirms the need for case-by-case analysis guided by but not limited to the enumerated statutory factors to determine whether a given use was fair. In essence, fair use provides a defense to infringement when the court’s balancing of these statutory factors indicates that strict application of the copyright statute would frustrate copyright’s purpose of promoting creativity. While a producer who cannot afford to license samples or acquire authorization for a remix could take some steps to plan ahead for a fair use defense, the broad discretion granted to the courts in determining the applicability of the defense could make this difficult.
A producer could attempt to take advantage of §107(1) by releasing the track free of charge to qualify as a non-commercial use, and by ensuring that the derivative remix or track containing samples is so different from the original sound recording in genre or another respect that it stands as a “transformative” use. Unfortunately, the producer may find the remaining three statutory factors much more difficult to address preemptively. §107(2) is more protective of works of creative expression like music that lack utilitarian or factual aspects justifying public dissemination, so there is less incentive for the court to find fair use of an original sound recording used purely for creative expression. §107(3) is obviously problematic in the case of an unauthorized remix because the remix may take substantially from the original sound recording and will undoubtedly take its “heart” to be recognizable as a remix. While taking the “heart” of a work may in some cases be permissible fair use in light of the other factors where the derivative work stands as a critique or commentary on the original as in the case of parody, it is uncertain that a remix will display such characteristics. Furthermore, the Sixth Circuit opined that any unlicensed sampling is improper because sampling is a “physical taking” to save costs while adding value to the product; although this pertained specifically to the discussion of a de minimis defense, similar reasoning could enter a court’s analysis of §107(3). Finally, §107(4)’s market harm analysis could cut against the producer even if he or she elects to release the track free of charge. While this situation would not present unjust enrichment of that particular producer at the cost of the copyright holders, a look at broader policy concerns could render the court hesitant to permit fair use here due to the incentives that such a precedent might create for other producers. Allowing fair use under these circumstances could harm the copyright holders by creating the incentive for other producers to forego licensing and sample or remix without authorization, then rely on the precedent to deter those copyright holders from filing suit. In light of the uncertainty that the latter three factors assessed in the fair use defense would weigh in favor of the producer who opts for unauthorized use, it would appear that the defense lacks utility from a planning perspective and at best presents an option for a last-ditch effort in the event of a lawsuit.
IV. The Bottom Line: What’s the Risk?
While authorized remixing and sample clearance provide opportunities for EDM producers to maximize creativity and minimize risk by accessing a variety of sounds in a liability-free manner, these practices quite frankly are not financially viable for those who lack resources. It is not difficult to imagine how it would be impossible for an up-an-coming producer to strictly comply with the law by seeking out and adequately compensating the holders of the various exclusive rights implicated in a sound recording. Thus, copyright law as it stands leaves producers who lack financial means to either operate with serious creative constraints by relying on generic sample libraries for their sounds, or else risk liability by sampling and remixing a more diverse selection of material without authorization. Many of these producers opt to assume the legal risk of the latter option in the name of maximizing creative output within their means, and much of the unauthorized use either takes place without contest or is addressed via agreement outside of court. The insignificant amount of litigation relative to the obvious prohibitions against unauthorized use may be a function of any number of non-legal factors, such as: a “live and let live” mentality among musicians, the risk of bad publicity from filing suit against a producer who releases an artistic project without seeking compensation, and the inability to recover any relevant sum from a producer who was unable to afford one or more licenses in the first place. These non-legal considerations may have the practical effect of facilitating creativity among up-and-coming producers by allowing them to engage in the unauthorized remixing or sampling of sound recordings that they would not otherwise be able to access. Ultimately, however, these producers forego authorization at their own risk: they are blatantly infringing on copyrights, and may be forced to settle out of court or rely on a questionable fair use defense if the copyright holders choose to assert their exclusive rights.
See Chloe Kent, The Definition of EDM? Depends on which DJ you ask, USA TODAY COLL. (Mar. 20, 2013), http://www.usatodayeducate.com/staging/index.php/ccp/the-definition-of-edm-depends-on-which-dj-you-ask; Korina Lopez, Electronic dance music glossary, USA TODAY (Dec. 13, 2011, 9:00 AM), http://usatoday30.usatoday.com/life/music/news/story/2011-12-13/electronic-music-glossary/51863490/1.
 See Christopher Anderson, Production in Flux: What’s Next for Electronic Dance Music?, POPMATTERS (Mar. 19, 2013), http://www.popmatters.com/column/169424-production.-too-new-to-be-forgotten/P0/.
 See id.; Zack O’Malley Greenburg, Avicii And The Ever-Changing Definition of EDM, FORBES (Aug. 14, 2013, 10:02 AM), http://www.forbes.com/sites/zackomalleygreenburg/2013/08/14/avicii-and-the-ever-changing-definition-of-edm/.
 See 17 U.S.C. §106 (2012), available at http://www.gpo.gov/fdsys/pkg/USCODE-2012-title17/pdf/USCODE-2012-title17.pdf.
 See id.; Bridgeport Music v. Dimension Films, 410 F.3d 792, 799-801 (6th Cir. 2005), available at http://scholar.google.com/scholar_case?case=2589269115679339204&q=bridgeport+music+v.+dimension+films&hl=en&as_sdt=40000006&as_vis=1.
 See Simon Langford, The Remix Business: Part 1, SOUND ON SOUND, June 2009, available at http://www.soundonsound.com/sos/jun09/articles/worldoftheremixerpt1.htm.
 See Anderson, supra note 2.
 Ian, Sample Clearance- a cautionary tale, MAKE IT IN MUSIC (Oct. 11, 2011), http://www.makeitinmusic.com/sample-clearance-tale/.
 See Langford, supra note 6.
 Langford, supra note 6.
 See Langford, supra note 6.
 Noah Sutcliffe, Copyright Concerns for Digital DJs, DJTECHTOOLS (Mar. 25, 2012), http://www.djtechtools.com/2012/03/25/legal-concerns-for-digital-djs-should-i-worry-about-copyright/.
 See Langford, supra note 6.
 See Langford, supra note 6; Sutcliffe, supra note 13.
 See Sutcliffe, supra note 13.
 See Ian, supra note 8; Sutcliffe, supra note 13.
 See 17 U.S.C. §§101, 102, 106, 114(b).
 See 17 U.S.C. §102.
 See 17 U.S.C. §106(1), (3).
 See 17 U.S.C. §§101, 106(2).
 See 17 U.S.C. §§106(1)-(2), 114(b).
 See 17 U.S.C. §§101, 102, 106, 114(b); Bridgeport Music, 410 F.3d at 801.
 Bridgeport Music, 410 F.3d at 796-97.
 Id. at 801.
 Id.at 801-2.
 See id. at 805.
 17 U.S.C. §107.
 Id.; Campbell v. Acuff-Rose Music, 510 U.S. 569, 577-78 (1994).
 See Campbell, 510 U.S. at 577.
 See id. at 577-78.
 See id. at 578-579; 17 U.S.C. §107(1).
 See 17 U.S.C. §107(2)-(4).
 See 17 U.S.C. §107(2); Campbell, 510 U.S. at 586.
 See 17 U.S.C. §107(3); Campbell, 510 U.S. at 586-90.
 See Campbell, 510 U.S. at 586-90.
See 17 U.S.C. §107(3); Bridgeport Music, 410 F.3d at 801-2.
 See 17 U.S.C. §107(4).
 See id.; Campbell, 510 U.S. at 590.
 See 17 U.S.C. §107(4); Campbell, 510 U.S. at 590.
 See 17 U.S.C. §107; Campbell, 510 U.S. at 577-78.
 See Ian, supra note 8; Langford, supra note 6; Sutcliffe, supra note 13.
 See 17 U.S.C. §106; Bridgeport Music, 410 F.3d at 801; Ian, supra note 8.
 See Ian, supra note 8; Langford, supra note 6.
 See Bridgeport Music, 410 F.3d at 804; Ian, supra note 8.
 See Bridgeport Music, 410 F.3d at 804; Ian, supra note 8; Sutcliffe, supra note 13.
 See Bridgeport Music, 410 F.3d at 804; Ian, supra note 8; Sutcliffe, supra note 13.
 See 17 U.S.C. §§106-107; Bridgeport Music, 410 F.3d at 804; Ian, supra note 8.