Copyright for a Remix - Advice please....

[RedRobin]

Hello

I am a musician (not professional) and someone has asked my permission to include one of my recorded songs in her remix of a commercially available song by Another. I have freely granted her permission as I generally approve of her work.

I have stated that my permission is granted only if the resulting musical derivative(?) is very strictly non-commercial and is not downloadable. The intention is to share her Remix online - Possibly on YouTube but certainly on SoundCloud.

However, the song by Another is commercially available on CD and I would expect the copyright to be held by the recording company based in France.

The Remix (which I have not had any creative part in) successfully blends my song over the first half of Another's song. It is my totally subjective view that both songs benefit but that has nothing to do with copyrights!

As a retired graphic design professional I am creating the online avatar presentation and also seek advice. My proposal is to follow this format.......

"SONG TITLE" (same as Another's title of the song used)
ARTIST (Another's name)
FEATURING "SONG" (my song title)
BY REDROBIN (my performance name)
-
REMIX BY XXXX (Remixer's name)

This format is my attempt to give credit where it's due and not to reduce the credit of Another's work.

I understand that what is TECHNICALLY 'legal' and what happens in real-world practice is complicated!

I would be grateful for any advice and thank you in advance,

Robin

[AndyJ]

Hi Robin,
I don't think anything you propose to do would infringe copyright in Another's song. Clearly if the remixer hasn't got permission to use Another's song then they may face a potential problem. Interestingly, the fact that you propose to give full acknowledgement to Another is very much in line with French copyright law, which emphasises the moral right of an artist to be credited for their work. The down side of that is that the same law (ie in France) strongly supports an artist who feels their work has been treated disrespectfully. Let's hope Another doesn't react this way.
Frankly I think the worst that the remixer might expect by way of reaction from Another's record label is for a take-down notice to be sent to Youtube and/or SoundCloud.
As I'm sure you are aware, using a streaming service such as YouTube doesn't really protect you against downloaders, so be prepared to find that the remix does get a wider distribution than you anticipate (assuming it's popular enough, of course).

[RedRobin]

Thanks, Andy - and for such a prompt reply.

It is both interesting and good to learn that French copyright law emphasises the moral right of an artist to be credited. I have the same morality in such matters.

Assuming that Another discovers the use of their original song in a remix, it would be entirely subjective whether they felt that the remix was disrespectful to their work. It could be argued that it was better for it but such opinions must rightly, in my view, favour Another. As a creative musician I will always strive to be respectful towards the creative work of others. In this particular case, our two songs have been well integrated (in my opinion) by the remixer and I know that she is also very respectful in her work.

Ironically, my research has shown that Another comprises of two musicians living thousands of miles apart who have come together via online music sharing. If we were to approach Another my expectation and hope would be that they, as artists, would enjoy and approve of the remix. However, I would never expect a record company to be so approving as they tend to prefer to chase the dollar rather than the artistic vision - Indeed a common reason why many artists split from record deals.

I would rather not approach the record company and prefer to put the remix out online, strictly not for sale, fully credited, and let Another and/or their record company issue a take-down notice which of course we would adhere to.

Point taken about there being no real control of people using software to copy any sound that a computer streams, irrespective of not presenting it as downloadable.

If 'discovered' I think that our openness to declare and credit Another and without any commercial gain, might hopefully be seen in a good light.

Assuming that the remix is liked, it might even be viewed that the remix contributes to marketing Another's CD album, especially if we go as far as stating that Another's song is from the album titled "AAA" available from "BBB" Records. Do you think that such a statement would be a good idea?

[AndyJ]

Hi again Robin,
It certainly won't do any harm to give a plug for Another's album and although, as you say, I don't think the record company will appreciate the altruism, Another may well do. Do you know if one or both of Another actually composed the song and lyrics? If they did and they are sympathetic to the remixer's work that means she won't face a copyright suit over infringement of the song, just possibly the recording, the copyright of which will be owned by the record company.
Good luck with the project.

[RedRobin]

Do you know if one or both of Another actually composed the song and lyrics? If they did and they are sympathetic to the remixer's work that means she won't face a copyright suit over infringement of the song, just possibly the recording, the copyright of which will be owned by the record company.

....Both members of 'Another' are independent as well as collaborative composers. The song used is entirely instrumental and so no copyrighted lyrics are in question. Together they composed the song in question.

It's the commercial recording of Another's original work (song) which the remixer has used.

But thank you, I am aware that the copyrights of a recording and a song are usually owned as separate entities - It's an aspect which many artists find difficult to accept. Many musicians don't record (I do so more than play live) and hence they don't understand that a recording studio crafts the sound and in many ways is a musical instrument itself which contributes much to a songwriter/performer's creation.

I suspect that most Remixers/DJ's don't bother to enquire about or respect the copyrights of the music they play publicly or distribute.

I've always thought that if you play music in any public place you need a licence. I don't necessarily agree with that as a blanket rule because organisations like PPL can potentially kill music and also kill live music performance. In my opinion it's fine to have copyright laws to protect the potential financial income of artists but not fine to apply it as a tax.

I recently had occasion to bring something to the notice of The Highways Agency which was about a farmer's tractor doing hedge-cutting before daylight on an A-road and without any warning signage on the approaches. My research to support my case brought up a Road Traffic Act PDF document solely about signage which was 271 pages!! Broadcasting or performing music is hardly putting people at risk of injury but I can see that copyright protection of digital media and distribution in cyberspace gets mighty complicated.

[typonaut]

I would rather not approach the record company and prefer to put the remix out online, strictly not for sale, fully credited, and let Another and/or their record company issue a take-down notice which of course we would adhere to.

Just to clarify here, the lack of a commercial aspect to this project doesn't form a defence against copyright infringement. Distribution of the original works is an infringement, whether money is involved or not.

As Andy has noted French IP law is centred around the idea of author's rights (droit d'auteur), which finds its way into UK copyright law by way of moral rights: the right to be named as the author, the right not to be falsely named as the author, the right to object to derogatory use of the work...

You can read a little more about them at the Intellectual Property Office

[RedRobin]

Thankyou, 'typonaut'

Clarification understood. We are not setting out to defend our infringement of Another and their record company's copyrights - We would respect their wishes and remove our remix from the public arena should they so wish it. But we have currently decided to leave the onus on them.

We have consciously titled the remix in this format.......

"SONG TITLE" (same as Another's title of the song used)
ARTIST (Another's name)
FEATURING "SONG" (my song title)
BY REDROBIN (my performance name)
-
REMIX BY XXXX (Remixer's name)

This format is our attempt to give credit where it is due and not to reduce the credit of Another's work.

Furthermore we would add text to state which album Another's song is from and also the record company's name and their website address from where their original can be bought.

This doesn't justify what we are doing nor does it provide us with a meaningful defence but is designed to illustrate our openness and respect for their work and incidentally may add further to their own commercial marketing efforts.

Additionally I suggest that our actions would protect us against any financial claim as we have not profited financially from using their music. We will have done no damage in our opinion. Please correct me if you believe I am mistaken.

You might ask whether it would really all be easier and watertight if we simply approached Another before uploading our remix anywhere. This is of course logical but we would risk them saying no and we are proud of the remix and would rather do what most other people do online and leave the onus on them to object.

I believe there is a happy balance between respecting the laws and offering (free of charge) our respectfully created version (which of course has its own copyrights).

It's a bit like fast driving - With power comes responsibility. The law states there is a speed limit of 70mph but in a car built for high performance and when/where the traffic and road conditions allow, more than 70 is perfectly safe (assuming you are either a trained or very experienced driver). I have been followed and stopped many times by unmarked cars for excess speed but let off with a lecture. Admission and a good attitude can go a long way. Lady Luck you might say. I'm hoping that Lady Luck will protect us sharing our remix for a while long enough for others to enjoy our creative works.

For the sake of others reading this thread with interest, I shall update it if there any other developments such as us being asked to remove our created work from the internet.

Oh, and thanks for the link you posted - I'll have a proper read later today.

[AndyJ]

Hi RedRobin,
I know your last post was directed at Typonaut, but for what it's worth, I think your pragmatic approach is sensible. Copyright is a right 'given' (ie it is not a natural right such as the right to life) to authors in order that the author may benefit from the fruits of his or her labour, but on the condition that society is enriched and other authors are stimulated to produce works, taking inspiration from the earlier work. In other words, exactly what you and the remixer would like to do.
There is a theory of copyright which contends that no work is truly original, and that every author draws, possibly subconsciously, on the work of those who have gone before. That ethos can best be seen in the development of folk tales and the roots of jazz. The theory then posits that therefore all authors owe a debt to their predecessors, and since this debt cannot easily be monetised and so paid off, it would be better that all authors allowed others to freely develop and improve on their creations without any hindrance, save that the original work is not denigrated or mutilated in some way, and that sufficient acknowledgement is given. This free availability for a work to be adapted would then balance out the earlier obligation owed by the first author to his sources of inspiration.
A nice theory from a moral standpoint but alas not one that the Hollywood studios or the big record companies are likely to be adopting in the near future.
Good luck with the project, and yes, please do let the forum know of any developments, good or bad.

[RedRobin]

Hi Andy

The info in your post is very interesting and especially when coupled with the Moral Rights as described in Typonaut's intellectual properties link.

Nearly all creatives, be it in the music, design, or other creative worlds, mature into the realisation that nothing is original. Not even language is original. Musically even the hilarious cacophony of totally improvised and unharmonious sounds which Gerard Depardieu played on the piano in the movie "Green Card" fall into a genre of music and are possibly not original! But, as you say, a nice theory but not a currently realistic one to rely on in a dispute or contest, and especially with Hollywood style record companies who are feeling very threatened by what goes on in hyperinterwebbynet cyberspace!

Ironically, our remix takes great inspiration from Another's work and in turn, Another's work itself is a direct result of its two sometimes independent members (one French, the other Japanese) inspiring each other.

As already established in this thread, the identity of the authors of ALL the music in the remix will be publicly stated and so I would expect this to satisfy a principle Moral Right under the Intellectual Property Rights legislation.

This leaves the rather subjective aspect of whether our remix raises objections due to 'derogatory' treatment. We think the opposite but it depends just how precious Another or their small French record company feel. And of course, they could exercise their rights by using this reason whether in truth they feel our inspired creation is derogatory or not.

I think that with both yours and Typonaut's contributions to this thread, I have been able to both confirm that my approach is sensible and that it's least likely to raise any objections from the other copyright holders, which is something important to me. Irrespective of liking the musical works of others, I try to respect their works.

I'm very glad to have found this Copyright Aid website and shall look at some of the other threads here.

[RedRobin]

I just thought I should add by way of introducing myself to this forum, that I have absolutely no background in the legal field but I am a retired graphic designer (I ran my own London based consultancy). However, as a youngster I did harbour a desire to be a Barrister...... Until I realised all the academic work I would need to successfully complete!

[typonaut]

Additionally I suggest that our actions would protect us against any financial claim as we have not profited financially from using their music. We will have done no damage in our opinion. Please correct me if you believe I am mistaken.

Unfortunately you are mistaken in this. It doesn't matter whether you profit from it or not. Account of profits is one measure that damages can be assessed by, but equally they can be assessed by other means, including the cost you may have had to pay to licence and distribute the track.

If you take a look at this article you'll see that sharing games with two others (there is probably more to it than that) has resulted in £6,000 in damages and £10,000 in costs - in the UK Patents County Court (covers all IP-related cases, not just patent).

Here is the same story on the BBC news site that adds a few details and comment (and dates it as August 2008).

While the BBC seems to be saying that a trial did take place, LawDit has a different take on the matter.

There is a case comment in Entertainment Law Review (Ent. L.R. 2009, 20(1), 28-29), but it doesn't shed any further light on the matter. I cannot find the case itself.

There is also a mention of this in Media CAT Limited v Adams (and others) at paragraphs 52-55 where Judge Birss makes it clear that this was in fact a default judgement, but that damages were assessed by the Patents County Court.

So the BBC was wrong (again).

Either way, the real issue here, that lawyers get all worked-up about, is whether, in a full trial hearing, the claimant can show that the defendant was the "person" that made the copies available online. This is because the usual course of the matter is that the claimant has only really identified the IP (internet protocol) address of the account holder's ADSL router (or sometimes their computer). This is a significant step away from identifying the "person" that uploaded the files, which is what the law requires.

In your case you won't really have the benefit of this doubt, since you are confessing your involvement in the matter right from the start - not here, but in the credit/title you intend to include with the remixed work.

You might ask whether it would really all be easier and watertight if we simply approached Another before uploading our remix anywhere. This is of course logical but we would risk them saying no and we are proud of the remix and would rather do what most other people do online and leave the onus on them to object.

You say elsewhere that you respect the rights of others ("Another" specifically), but this attitude doesn't really seem to display that respect. I suppose the criminal analogy in the physical world would be "Taking without the owner's consent".

[typonaut]

Hi RedRobin,
...Copyright is a right 'given' (ie it is not a natural right such as the right to life) to authors in order that the author may benefit from the fruits of his or her labour, but on the condition that society is enriched and other authors are stimulated to produce works, taking inspiration from the earlier work. In other words, exactly what you and the remixer would like to do.

Well, that is certainly one theory on IP, another is that property ownership is a natural law right, and that right comes about through the expenditure of the author's labour on the work.

As far as inspiration goes, that's a bit difficult to argue when you take someone else's recorded music directly. Oasis may have been inspired by Slade, but Run DMC licensed Aerosmith's Walk this way.

There is a theory of copyright which contends that no work is truly original...

The problem with that theory is that it fails to take into account that copyright may not be granted/enforceable on the full scope of a work. Only the novel parts of any work are protected, those that are derived from expired works, or unprotectable elements (characters, plots, titles, television show formats...) never become subject to an enforceable right.

[RedRobin]

It doesn't matter whether you profit from it or not. Account of profits is one measure that damages can be assessed by, but equally they can be assessed by other means, including the cost you may have had to pay to licence and distribute the track.

If you take a look at this article you'll see that sharing games with two others (there is probably more to it than that) has resulted in £6,000 in damages and £10,000 in costs - in the UK Patents County Court (covers all IP-related cases, not just patent).

Here is the same story on the BBC news site that adds a few details and comment (and dates it as August 2008).

While the BBC seems to be saying that a trial did take place, LawDit has a different take on the matter.

....At the moment I'm not entirely convinced that your linked example of the sharing games case is sufficiently close enough to the subject of my thread - A mix of two music recordings (one of which is wholly mine). Please understand that I am grateful for your input and I am not rejecting your much valued advice.

The case you refer to, as I understand it, involves P2P (peer to peer) file sharing. In my instance no files are being physically shared in the way that interactive games are. Or would you argue that uploading any music file to social media such as Facebook is P2P sharing, even if they are not downloadable?

Regarding the outcome of the linked games case, it appears that the defendant very unwisely did not appear in court nor did she contest the case, thereby leaving herself more exposed to the court's harsher judgement. I think I'm correct in saying that most courts view the non-appearance of a defendant as showing a degree of contempt and so tend to dish out more severe penalties. Also, the court can only respond to the case put before it and if that is all one-sided for the prosecution, then the outcome is bound to reflect that. Seemingly solid prosecution cases have been lost due to the prosecution not bothering to attend court.

Either way, the real issue here, that lawyers get all worked-up about, is whether, in a full trial hearing, the claimant can show that the defendant was the "person" that made the copies available online. This is because the usual course of the matter is that the claimant has only really identified the IP (internet protocol) address of the account holder's ADSL router (or sometimes their computer). This is a significant step away from identifying the "person" that uploaded the files, which is what the law requires.

In your case you won't really have the benefit of this doubt, since you are confessing your involvement in the matter right from the start - not here, but in the credit/title you intend to include with the remixed work.

....My involvement starts with me being asked for permission to download my song - Which I freely and willingly gave. I was then asked if I "liked" (approved of) a mix which that person had done with Another's song. I do approve of it.

Perhaps the resulting piece of music would be better described as a "Mix" rather than a "Remix", or would that make no difference?

Perhaps my confession of involvement is rather naive - It has only been my intention to pay homage to the mixed song and publicly give credit where it's due.

You might ask whether it would really all be easier and watertight if we simply approached Another before uploading our remix anywhere. This is of course logical but we would risk them saying no and we are proud of the remix and would rather do what most other people do online and leave the onus on them to object.

You say elsewhere that you respect the rights of others ("Another" specifically), but this attitude doesn't really seem to display that respect. I suppose the criminal analogy in the physical world would be "Taking without the owner's consent".

....Fair point. So far, my respect has perhaps been more for the Another's music itself rather than their technical copyrights. That's why I would feel more comfortable in crediting their authorship alongside my own.

At this time, nothing has been uploaded to anywhere public and the purpose of this thread has been for me to investigate what problems there might be.

Everyone I know simply uploads or shares DJ and other Sets of music via social media as if the internet was one giant radio station for anyone to enjoy. They tend to be ignorant of any copyright laws. In fact I already occasionally post a link to some of my favourite YouTube music videos on my Facebook page - Is that illegal?

In an ideal world, music would always be free and not subject to complex laws of copyrights etc etc etc!

[typonaut]

....At the moment I'm not entirely convinced that your linked example of the sharing games case is sufficiently close enough to the subject of my thread - A mix of two music recordings (one of which is wholly mine). Please understand that I am grateful for your input and I am not rejecting your much valued advice.

The point to be made is that claiming that you do not profit from the sharing of "Another's" music does not defend you against a claim for damages. Putting a song online, in any form, is distribution. The particular type of technology used (P2P, FTP, HTTP, streaming, video...) does not matter. The issue is "making available to the public" in an unauthorised manner.

The case you refer to, as I understand it, involves P2P (peer to peer) file sharing. In my instance no files are being physically shared in the way that interactive games are. Or would you argue that uploading any music file to social media such as Facebook is P2P sharing, even if they are not downloadable?

Any file on the internet is downloadable if you can access it in a browser - and it doesn't take much knowledge/skill to figure that out. But, as above, the issue in general is not about the particular methodology of distribution, it is about distribution full stop.

I think I'm correct in saying that most courts view the non-appearance of a defendant as showing a degree of contempt and so tend to dish out more severe penalties. Also, the court can only respond to the case put before it and if that is all one-sided for the prosecution, then the outcome is bound to reflect that.

It is possible that some mitigation could have been put forward in this case, or indeed that the defence could have been victorious (given the issue of identifying the actual person distributing the files). But the claimant was obviously legally represented, and would have had a solid case for claiming damages - the judge's hands would have been pretty much tied in terms of what damages were awarded.

Even if the damages had been assessed at the retail price of one copy of the video game, there would still have been the costs to factor in - £10,000.

Seemingly solid prosecution cases have been lost due to the prosecution not bothering to attend court.

The real question is whether any solid defences have been lost due to the defendant not turning up?

Perhaps my confession of involvement is rather naive - It has only been my intention to pay homage to the mixed song and publicly give credit where it's due.

The legal penalty lies with the person distributing the results. If that's you, or another, or "Another", then that's where the problem falls.

Everyone I know simply uploads or shares DJ and other Sets of music via social media as if the internet was one giant radio station for anyone to enjoy. They tend to be ignorant of any copyright laws. In fact I already occasionally post a link to some of my favourite YouTube music videos on my Facebook page - Is that illegal?

I think we all know that ignorance of the law is not a defence, so I'm not really going to address that.

As far as I know posting links to material, distributed without authorisation, is not something that a UK court will take action over. But I believe that criminal statutes are in place to address this issue in the USA and I think we also know that prosecutors in the USA are quite ready to extend their territorial reach where there is seemingly little connection with the USA.

In an ideal world, music would always be free and not subject to complex laws of copyrights etc etc etc!

Well, that's certainly one philosophical position to take. Unfortunately for you the philosophers have been debating that issue for a few hundred years and they have a different answer.

I'd personally question whether that really would be an ideal world - it would seem to preclude anyone ever making a living from the creation of music, and consequently have a negative effect on both the quality and quantity of music available to the public.

But I certainly would not wish to prevent anyone giving away music that they have composed and performed, if that's their choice.

[AndyJ]

As far as I know posting links to material, distributed without authorisation, is not something that a UK court will take action over.

I think you are forgetting Newzbin and Newzbin2