Remixing Not A Right

In this piece, Stephen Carlisle weighs in on several recent court cases revolving around remix artists and their right, or lack thereof to take another artist's note for note material, and use it in their own work.

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Guest Post by Stephen Carlisle on Nova Southeastern University

UPDATE: Arrghh! The dangers of writing a topical law blog on copyright is that new court opinions are issued every day. This blog post was published just before the 9^th Circuit issued its ruling in the Madonna “Vogue” sampling case. I will discuss that case at the end of the blog post.

Two events popped up this week in the never-ending quest of people seeking to use the creative works of others without showing the simplest kind of consideration: asking for permission and paying a license fee.

The first was a reversal by the German Constitutional Court of a lower Court’s determination prohibiting the distribution of the 1997 song called “Nur mir” (“Only to me”) because it included a two second sample of the 1977 song “Metall auf Metall” by the German electronic pioneers Kraftwerk. ¹ Though only two seconds long, the sample was “looped” so it played throughout the resulting song. ²

The second was a post on MTV’s website titled “Steal This Riff: How To Fix Copyright Law And Set Musicians Free,” calling again for the passage of legislation forcing musicians to give up their rights to control derivative works. ³

Both of these events suffer from the same illogical mindset: that musicians cannot be creative unless they can make note for note copies of something another composer has already done.

The Kraftwerk case is the perfect example.

“In the court battle, [producer and composer ⁴ Moses] Pelham argued that sampling is common practice in the hip hop genre.

He said he works from a set of interesting music sequences and was not aware at the time that the sample in question stemmed from Kraftwerk’s work.

Germany’s constitutional court acknowledged sampling as one of the “style-defining elements” of hip-hop in overturning the previous court verdict that was in favour of Kraftwerk.

It noted that imposing royalties on composers could be crippling as copyright owners can demand any amount, or they can simply reject the request for usage.”⁵

Think about this for a second. Someone who claims to be a “music producer and composer” states, in effect, that he cannot work unless he can copy note for note what others have already done. And also, that one of the “style-defining elements” of hip-hop is copying what others have done, without permission or payment, but claiming the resulting song is 100% your creation.

If that’s the only way you can work, then you’re not much of a composer, are you?

If Pelham was “not aware” that the sample came from Kraftwerk, then the simple thing would be once he had found out, and Kraftwerk had lodged their objections, to take the loop out and create a new loop to replace it. That’s what people who are “composers” do.

Even if Pelham was “not aware” that the sample came from Kraftwerk, it had to come from somewhere. Unless it was composed by him, the sample did not just magically appear in his computer.

So yes, German Constitutional Court, the royalties could be “crippling” on a “composer.” Why? Because the “composer” is not “composing.” He’s just copying note for note what someone else has already done. Yes, the copyright owner could reject the request for usage. Why? Because someone took the time and effort to sit down and “compose” something and then take the time and effort to generate a recording of it. That’s what musicians and composers are supposed to do.

This is the mindset of people who spend too much time fiddling with their computers and mistaking it for the creation of music.

Which leads us to the MTV blog post. It has all the earmarks of tired tech talking points.

“The U.S. copyright system is hopelessly broken. It’s an outdated regime, completely unequipped to deal with the realities of a modern world where cheap audiovisual software has made remix artists out of everyone from grade school kids to multiplatinum pop stars.” ⁶

Ah, yes, the remix “artist.” Whose first step of “creation” is to make a note for note copy of a song someone else composed and recorded. And of course, like all tired tech talking points, it confuses the “ability” to do something with the “right” to do something, and everyone else’s “rights” are an inconvenience that needs to be swept out of the way as soon as possible.

“In effect, artists are being forced to choose between having their music zapped off the most popular listening hubs on the Internet, or hiring a lawyer to sort out clearances for them. If clearing a sample were as easy and affordable as buying an audio plug-in, owners of desirable sampling material could make up for a drop in individual unit price by selling in bulk.” ⁷

It’s not hard to see where this is going. The solution, of course, to making it “easy” and “affordable” is to have the government step in and force songwriters to allow their creative efforts to be placed in a digital blender for a below market rate, a/k/a the compulsory license.

This idea was already considered and rejected by the U.S. Commerce White Paper report earlier this year. As I noted in this blog post:

“’[T]he record has not established a need to amend existing law to create a specific exception or compulsory license for remix uses,’ [the study said] noting that one comment called it “a solution in search of a problem.” ⁸

And, as I said back then:

“[M]y speech is my speech. Copying my speech does not make it your speech. And you have no absolute Constitutional right to make my speech. Plus, according to the Constitution, I have the “exclusive right” in my “writings.” So, no you don’t have a right to take my speech in order to make it yours. Plus, if you have sampled so many different artists that the licensing fees exceed 100% of your revenues, the failure is not in the copyright laws, but instead is the logical consequence of your failure to do anything creative. Slapping together a bunch of segments you copied from other people’s musical compositions does not make you Mozart.” ⁹

And here:

“If you as a re-mixer, wish to use my song, you want it for two reasons; first, it’s a good song or it’s a popular song, perhaps both. Neither of these values were created by you, the re-mixer, they were created by me, the composer. So in essence the re-mixer wishes to take advantage of the value of a song without being the cause of the creation of that value in the first place. Put more succinctly, the re-mixer seeks to reap where they have not sown, which is why we have laws against common law misappropriation, as well as laws protecting copyrights. So my permission to lend my valuable property to your project should absolutely be required. Don’t like that you need to get my permission? Then go write your own song. Get creative.” ¹⁰

Make no mistake. As an attorney, I have many times licensed client material to hip-hop artists. One became a #1 rap hit and as I sit here typing, I am finalizing a new license with a famous hip-hop artist. But in each case the artist took the time to acknowledge the source and properly license the material they did not compose.

Which is exactly what Mr. Pelham did not do with Kraftwerk. Should we be buying into his argument that stealing is some kind of art form? I don’t think so. And the Court in Germany should have known better.

Certainly courts in the U.S. faced this question head on in Grand Upright Music Ltd. V Warner Bros. Records, ¹¹ way back when, in 1991, over 25 years ago:

“’Thou shalt not steal.’ has been an admonition followed since the dawn of civilization. Unfortunately, in the modern world of business this admonition is not always followed. Indeed, the defendants in this action for copyright infringement would have this court believe that stealing is rampant in the music business and, for that reason, their conduct here should be excused. The conduct of the defendants herein, however, violates not only the Seventh Commandment, but also the copyright laws of this country.” ¹²

Exactly. Copyright is my right. Remixing is not a right.

UPDATE: Just after this blog post was published, the 9^th Circuit Court of Appeals published its opinion in VMG SALSOUL, LLC, v. CICCONE, et al. ¹³a/k/a the sampling which occurs in Madonna’s “Vogue.”

Though the reasoning of the court does not contradict the views expressed in the initial blog post, it does bear explaining.

In the Cicconne case, the reasoning of the court was that the sample, a .23 second sample of a horn blast, was too small to be actionable copyright infringement, invoking the long standing principal of de minimus non curiat lex or “the law does not concern itself with trifles.” ¹⁴ It did so in the face of a case directly on point from the 6^th Circuit Bridgeport Music, Inc. v. Dimension Films, ¹⁵ “which adopted a bright-line rule: For copyrighted sound recordings, any unauthorized copying—no matter how trivial—constitutes infringement.” ¹⁶

In doing so, the Court intentionally creates a direct split with another Circuit Court, a point that is not lost on the dissenting opinion:

“The majority chooses to follow the views of a popular treatise instead of an on-point decision of the Sixth Circuit, a decision that has governed the music industry in Nashville – “Music City” – and elsewhere for over a decade without causing either the sky to fall in, or Congress to step in. And just exactly what is the Sixth Circuit’s radical holding in Bridgeport Music, Inc. v. Dimension Films that the majority finds so distasteful? It’s this: if you want to use an identical copy of a portion of a copyrighted fixed sound recording – we’re not talking about “substantially similar” tunes or rhythms, but an actual identical copy of a sound that has already been recorded in a fixed medium – get a license. You can’t just take it…In this case Bridgeport has not been hiding out in the woods, waiting to be found: it has been governing the music industry in Nashville and elsewhere for eleven years. The majority now proposes to introduce a different rule for this circuit, creating a circuit split, and providing a lower level of protection for copyright holders in a different area of the country.(emphasis supplied and citation omitted) This inconsistent approach is plainly in contravention of Congressional intent that copyright laws be predictable and uniform, yet the majority defends its rogue path on the ground that Congress must have intended something other than what the Sixth Circuit has concluded, even though we’ve heard not a peep from Congress, or for that matter the Supreme Court, in the eleven years since Bridgeport has been on the books.” ¹⁷

So the blog post’s main point remains intact: there is not, nor should there be, an absolute right to copy another’s musical composition or sound recording, regardless of the fact that it is a common practice in “hip’-hop” music, or that someone with a computer finds it inconvenient to write their own song.

Whether that copy is too small to be legally actionable apparently is an issue for the Supreme Court of the United States to decide.

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