The Open Music Initiative is a non-profit initiative creating an open-source protocol for the uniform identification of music rights holders and creators. On June 5th, 2017 the Open Music Initiative Summer Lab kicked off it’s second ever summer lab. Led by Eric Chan, four teams consisting of 19 members with various skillsets were assigned different tasks to identify and solve problems within the music industry. Our team consisted of five students: Luís Claudio Arcos, Soma Suuki, myself, Yi Pan, and Xueqi Zhang. The problem that we were given was How do we commercialize mix-tapes built from original material and back catalogs?
Our team has discovered many new facets to the complicated problem of licensing music, from when our last article was written, The Future of Derivative Works, until now. We chose to focus on two prominant issues:
- Can the licensing and distribution process of an original work be just as enjoyable as the music itself?
- In the future of derivative music works, can commercialization be monetized for all creators of the derivative work?
Last week, we were able to see the current licensing system to cover a song, the problems of it, and where the future of derivative works were headed. This week, we chose to focus on identifying the license system for sampling someone else’s music to create a derivative work. Too often, DJ’s and artists create and base their works off of samples and original material of another artist, and do get permission from the original copyright holders or credit them. Because of this, there is often a lawsuit involved, and the artist of the derivative work is sued, because the right to sample was not obtained legally.
The Start To The Next Chapter
Before, the team dove into solving the issue of improving the licensing system for music, we chose to figure out what exactly the laws were with licensing samples. Through another interview with the credentialed Berklee College of Music Professor, George Howard, we discovered that in order to obtain the rights to a sample, you must contact the copyright holders directly. Here is a list of items needed to sample a song:
- Permission for the use of the master recording.
- Permission for the use of a composition.
- The publisher usually wants an upfront clearance fee or percentage on all revenue made. The fee for more popular artists in Billboard’s Hot 100 ranges from $100–$10K. 15%-50% is usually the percentage according to George Howard.
- The label who owns the master also wants a rollover fee of revenue made from the derivative work. The rollover fee is based off of how much the artist makes. So if I sell X amount of CDs I owe them Z amount of money.
- After you agree to all of this, the copyright owners can still refuse to give you the right to sample the work.
This entire process can take around a month just to gain permission until you write the song, let alone release it. This seemed long and expensive just to legally sample one song. We wanted to experience this process first hand, to see exactly what the problems wee, and develop an angle to tackle it.
The Customer Journey: Licensing a Sample
I, myself, decided to become a customer. I decided to go big, and tried to sample the Katy Perry song, Swish Swish, to create a derivative work. I, of course, wanted to do this legally. I started by first, going on the Harry Fox Agency Website, to see if I can obtain permission to sample the song directly from the site. What would the process for that look like for legally sampling a song? How much money would it cost? Would royalties go directly to you? I knew I could legally cover the song with a mechanical license from Harry Fox’s SongFile, but I didn’t know if I could obtain permission to sample the song to create a new piece of music. Here is the email they sent back in response to my questions.
I can’t obtain a license for sampling from the Harry Fox Agency. Next, we took their advice and attempted to gain permission through ASCAP, which is the royalty company that Katy Perry has chosen for her music. I contacted them through speaking with one of their representitives on the live chat feature on their website. Here is how the conversation went:
Me: I am a student at Berklee College of music. I am currently trying to sample a Katy Perry song Swish Swish to put into my own music. I know that she is registered under you. I was wondering that process was for that? Do I need a mechanical license? Who do I pay? Where do royalties go?
ASCAP Representative: Good Afternoon! My name is — — — and I am here to help. In order to re-record cover, or sample a song, you would need what is known as the mechanical license. Both the publishers themselves and Harry Fox Agency issue mechanical licenses. Harry Fox can b reached at 212–834–0100 or at www.harryfoy.com. If Harry Fox does not have the song you’re looking for, you can search the publisher in our database at www.ascap.com/repertory. If you don’t find the song in our repertory it may be listed at bmi.com or sesac.com
Me: So all I ned is a mechanical license to sample the song?
ASCAP Representative: Yes and You’re welcome.
Me: Now does this change if I want to stream the song on Spotify or YouTube?
ASCAP Representative: That would be something to discuss with harry fox or the publisher.
Me: Okay thanks for your help.
These two companies I had asked has said something different, which is misleading. This conversation has brought me in a full circle, and nobody seems to understand or know how to obtain a license to sample a song. Harry Fox says I can’t obtain a license to sample and that I need to contact ASCAP or BMI. ASCAP says I need a mechanical license from Harry Fox. (Who do I contact next? I’ve gone full circle!) I decided to attempt contacting Capitol Records, which is the label that Katy Perry is under. I went onto their website, and there is currently no contact page. (GREAT…….-____-)
Through further research, I discovered that Capitol Records is an umbrella label owned by Universal Music Group. An umbrella label is a label that acts as a contractor for a larger organization. They sign the artists for the organization, while still operating independently as their own organization. I went under Universal Music Group’s website, and saw a contact button (Thank God). I clicked on it, and it took me to a long FAQ page on how to get signed, illegal distribution, and being owed royalties. There was NO actual number or email I could contact. There was NO information on how to sample one of their songs. (Wtf…(╯°□°）╯︵ ┻━┻)
Through this whole process, I learned that gaining a sample for a license, is essentially impossible. Nobody seems to understand what is going on. Rather based off of what George Howard had said, they had bits and pieces of the facets that were needed to sample a song. I thought to myself, that this is quite comical that these labels and artists file lawsuits against the creators of derivative works for using their sample without permission, when the permission is impossible to obtain.
How Could We Fix The System?
Through the above research, we learned that the current system for licensing a sample is convoluted and basically impossible to obtain without knowing the actual artist. To fix the issue, we need a system that can answer the following questions:
- How can a platform assess the stems of a song in a way that samples can be detected? (DubSet already does this, so maybe a possible partnership with them?)
- How can the experience for obtaining rights in samples, be as enjoyable as creating the derivative work?
- How will the original copyright owners of the sample be contacted?
- How can the copyright owners share the profit with the creator of the derivative work?
- How can the process of creating derivative works be appreciated and everyone still benefit?
This is the system we devised:
- The person selling a song, uploads a sample or whole musical work to the site, and sets a rate for the song or sample to be used, whether that is an upfront fee or a percentage of revenue made from the derivative work using the sample or song.
- The creator of the derivative work creates a profile.
2. The creator uploads the derivative work to the platform.
3. The platform recognizes that the song has used samples from publisher 1 . and label 1. (We would of course need some sort of song catologue)
4. The platform reports a diagnoses to the creator of the derivative work and the creator can agree to the rate or negotiate a price for the permission to use the sample.
5. Once the price or percentage is agreed upon and confirmed, each song uploaded assigned a code with encrypted info containing
- Artist name
- Song name
- All Copyright holders of the samples used
6. The work is distributed, and tracked using blockchain and everyone receives part of the profit.
7. A fan of the derivative work decides to tip or pledge to the artist to support the music and derivative work. The money is distributed based on the percentage or fee the copyright owner of the sample used has set for the sample.
Initially we thought that these percentages or fees that are going to be paid for using the sample, should be determined by popularity. Following the process of Human Centered Design, and talking to actual people about the concept, we all found that there is no true way to calculate a percentage based off of popularity. Instead, creating a marketplace driven by the user would be more functional.
Here is the beginning prototype that Yi Pan has made, to show visually, how the process works.
- Select Your Song in Your Own Database
2. Upload Your Derivative Mix: Our mix contained a sample from Adele’s Someone Like You and a sample from Mark Macina’s August Rhapsody.
3. The System is Ready to Scan After File Has Loaded.
4. The System Scans for Samples: The System Recognizes that Someone Like You and August Rhapsody has been used.
5. I Accept This Sample Has Been Used: I now, can see the rate that Adele set for her samples being used. From here, I can choose to accept the terms, negotiate, or go back.
To use it yourself, you can click the link below. Please feel free to give us feedback in the comments of your initial thoughts.
This is of course the bare bones to a solution. Our team is working to first create such a system, that would be able to identify a minimal part to a song, such as a guitar riff, or a bass line. We will research other platforms to see how revenue is made in a song. Finally, we need to figure out how that revenue can be linked together to share the profit. If something like this was functional, it could be a solution to a VERY LARGE PROBLEM. We would love to hear your thoughts on how to solve this, or just your thoughts about the concept. We are excited to be working alongside with some of the most-credentialed people in the music business with the Open Music Initiative, and working on Human Centered Design with the folks at IDEO to try to make this solution come to life. We can’t wait to update you on the discoveries we make, the new systems we create, and the hope that we can give to the future of derivative works.