Is the End Near for Unlicensed Remixes and Cover Songs?
How technology in music identification is changing the marketplace
Who Are You, and What Does “Unlicensed Remix” or “Unlicensed Cover Song” Mean?
While I’m not a formally trained nor licensed IP attorney, many years of studying copyright is what I claim to be a qualification to discuss this type of situation. As a content creator, it’s important to understand both personal rights and the rights of other creators — past, present, and future. So I’m just some independent musician on the internet sharing his perspective, it’s not legally binding, blah blah blah.
As for what is an “unlicensed remix” — it’s a pretty well established concept by the music community, legal cases, and the occasional settlement out of court where a public statement is given as part of the deal. At the root, it’s Remix Artist A taking a Original Copyrighted Song 1 and making a derivative version without permission from and/or compensation to the rights holders (more on that later).
Because US copyright can’t cover chord progressions or styles, it’s good to note that a remix will often directly incorporate elements of the original song. A great example of this might be a dance remix of a pop song where the only original song part being used is the vocal track, and the other instrument parts have been re-created to better fit the “party style” of the new genre.
There’s a line somewhere in how “Cover Songs” are different than a “Remix” and that’s a perfectly reasonable distinction we need to address. For the sake of discussion, let’s just say a “Cover Song” is Cover Artist A completely re-recording all elements of Original Copyrighted Song 1 — unlike the remix, no elements of the original song exist, it’s a pure re-interpretation. As with remixes, there are permission and/or financial considerations that are supposed to be paid to the rights holders of Original Copyrighted Song 1 for the right to commercially use the “Cover Song” version.
However, in the United States music market, the “Unlicensed Remix” and “Unlicensed Cover Song” may soon become outdated concepts.
You Mean It Reads the Bits?
Advancements by SoundCloud and Dubset are changing the traditional notions of music copyright licensing in the United States — as noted in the links for each of their names, both operations have spent resources and effort to work out a new monetization path for “remix culture,” as some have termed the trend.
In “the old way” of doing things, as I remember going through once and a while, involved contacting rights holders and basically paying an up-front fee for the right to make a cover song and release it for commercial gain. Live performance is a different story (ASCAP/BMI), and not part of this discussion, in case you were wondering. Nope, this only applies to sound recordings. The name Harry Fox Agency will ring a bell to indies and others.
Because the music industry isn’t stupid, they do see the value in songs getting picked up through organic, “viral” type waves that show up from time to time. It’s great to be able to identify, pick up, and bring in new talent to record labels as well. A certain attractive Canadian young man singing unlicensed cover songs on a certain video site seems to come to mind as a great example of this. Anyway, what I’m getting at is there is value to the industry — and money to be made — in fan culture.
What the big players don’t like is being cut out of the money game. Not a bit. Other than the sun rising in the East and setting in the West, the only thing more consistent is that record labels will try and get their fingers into every single possible revenue stream associated with its signed acts. So this is where the complaints against YouTube come in, and, until Dubset and SoundCloud hammered out some deals, where the record labels and publishers really had a problem with unlicensed remixes and cover songs:
All they wanted was to get paid every time any version ever gets played. The original? Pay them. A remix? Pay them. A cover? Pay them.
You know, simple.
If record labels could find an enforceable way to charge you a broadcast royalty fee for whistling a pop song melody while walking down the street, they’d probably lobby to get it turned into a law.
For Once, This Seems Reasonable
Was the music industry using fan culture as a bargaining chip to get SoundCloud and YouTube to play hardball with them? Absolutely. Did it work? It’s not totally clear yet — check into the fight between RIAA and Silicon Valley with respect to, ahem, revising the DMCA “Safe Harbors” apparently to favor the large rights holder organizations, who, time and again, claim to be about “getting the artists a fair shake!” while signing the same artists to one-way power-dynamic indentured servant contracts. Needless to say I don’t think either side plays fair, honest, or really gives two f — s about musicians.
The whole concept of copyright protections is “To promote the Progress of Science and useful Arts” which is the absolute antithesis of the Mickey Mouse curve that Disney seems so determined to prolong. Copyright Reform is something I believe in, and strangely enough, what Dubset and SoundCloud have done is, practically speaking, set remixes and cover songs free from some of the traditional constraints. This is what real-world reform looks like, driven by market forces. Or, in other words, they found a way to get their cut.
Oh This Ain’t Over By A Long Shot
Just because a Cover Song Artist A can record a new version of Original Copyrighted Song 1 and upload it to SoundCloud doesn’t mean the original rights holders have given blanket permission. Quite the contrary. I think this is a very strategic move to cultivate remixes and cover songs which will benefit the original recordings. How? By giving them more exposure, to possibly engage in the profitable “crossing over” track of being a hit in multiple genres, while also allowing the rights holders to peek at each one along the way.
If a cover song or a remix is, well, “objectionable” to the rights holder(s), then I’m pretty sure they will have an opportunity to strike it down early. At least as they are able to get around to it or their attention is brought to it. A lot of what the music industry hates about the internet is their lack of control — this avenue gives them a form of compromise.
As awesome as it might be to remix DJ Snake and Lil John’s “Turn Down For What” with the theme song to the kids show Sesame Street, I can see how one of the two rights holders might not be in love with the idea.
I have been testing the waters since these agreements started getting announced a while ago. Something like my “A Quai” remix from the film Amelie, using the vocal track from Adele’s Saturday Night Live performance to make a roaring guitar version of “Hello” or snipping a clip of new Kanye West to turn “Real Friends” into a jazzy guitar song to see if they’d get taken down (they’re still up as of this writing on 5/25). I never enabled downloads or intended to monetize them through digital stores, but it looks like that is changing now.
What this does for me is un-cork a previously stashed away collection of tracks and tunes that I knew were blatant violations of copyright. Now I’ve got a Terminator 2 theme song re-done with guitars, a version of Chaz Jankel’s “Number One” sprinkled with quotes from Real Genius, and a half-dozen other weird little experiments and tributes I made throughout the years. I’m going to give them a try as releases on SoundCloud and through Dubset’s MixBank program to see how this all works out.
It’s hard to tell which is more exciting — actually getting the chance to share these, or the feeling that now it’s actually okay to share them.