By Joshua Krank, Attorney, SW&L Attorneys

Contents

The Basics of Copyright Law Key Components of Copyright Law Copyright and A DJ Mix: Understanding the Key Elements Respecting Copyrights and Best Practices Conclusion SW&L Attorneys

In the massive world of music, artists, DJs, and others play a crucial role in creating unique experiences and other content that draw in listeners and audiences. DJ mixes, which usually manifest as a seamless blend of tracks and sounds (sometimes several hours long), have become a growing art form. Some would argue that DJ mixes were born within a genre known as electronic dance music (EDM). The growing popularity of EDM and DJs is closely intertwined with the basics of copyright law. As EDM has taken the global music scene by storm, DJs have risen to stardom with their infectious mixes and thrilling performances, becoming some of the most popular artists in the industry. In fact, EDM has become the third most popular music genre as of 2023. Its immense appeal is evident in events like “Tomorrowland,” one of the world’s largest music festivals, where 400,000 tickets sold out in just 45 minutes back in 2019.

However, as the EDM phenomenon continues to captivate audiences worldwide, it also raises important questions about copyright law and how it applies to the creative works of DJs and EDM producers. This article discusses some of the important copyright laws as it pertains to DJ mixes and remixes.

The Basics of Copyright Law

Copyright is a legal framework that grants creators exclusive rights to their original works. These works can span various forms of expression, including literature, music, visual art, architecture, software, and more. Copyright protection extends to both published and unpublished works.

Key Components of Copyright Law

Eligible Works: Copyright protection applies to original, tangible works of authorship fixed in a tangible medium of expression. As noted above, this includes literary works, musical compositions, paintings, sculptures, photographs, films, and even computer software code.

Exclusive Rights: Copyright holders are granted a bundle of exclusive rights, including the right to reproduce, distribute, publicly perform, publicly display, and create derivative works based on their original creations.

Duration of Protection: In the United States, copyright protection generally lasts for the creator’s lifetime plus 70 years. After this period, the work enters the public domain and can be used by anyone without the need for permission

Copyright Notice: While not required, displaying a copyright notice (©), along with the creator’s name and the year of creation, can provide notice of ownership and deter potential infringers.

Registration: While copyright protection is automatic upon creation, registering your work with the copyright office offers additional legal benefits, such as the ability to bring a suit, and the ability to obtain statutory damages and attorney’s fees, if the infringement occurs after registration.

Copyright and A DJ Mix: Understanding the Key Elements

Fair Use Doctrine and Transformative Use: Fair Use is a legal doctrine that provides the most common protection from copyright infringement claims. Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and thus not subject to a copyright infringement claim. The statute points out some uses, such as criticism, commentary, news reporting, teaching, scholarship, and research as examples of activities that may qualify as fair use. These uses are not exclusive, however. Section 107 thus requires consideration of the following four factors in evaluating a question of fair use:

1. Purpose and character of the use
This includes whether the use is of a commercial nature or is for nonprofit educational purposes. Courts look at how the party claiming fair use is using the copyrighted work. In the Court’s consideration, they are more likely to find that nonprofit educational and noncommercial uses are fair. However, this does not mean that all nonprofit education and noncommercial uses are off the hook and that all commercial uses are infringement. Courts will balance the purpose and character of the use against the other factors mentioned below.

Additionally, this is where the concept of “transformative” use comes into play. Transformative use recognizes that it’s possible to use something while also adding something new, thus modifying its purpose or character and not impairing the original use of the work. With a DJ mix or remix, the more alterations and combinations of tracks, the stronger their argument for fair use or transformative use.

2. Nature of the copyrighted work
In this factor, the Courts consider the degree to which the work that was used relates to copyright’s purpose of encouraging creative expression – basically weighing whether you took from a more creative work or a more factual work (like a news article).

3. Amount of the work taken in relation to the copyrighted work as a whole
With this, Courts have to look at both the quantity and quality of the copyrighted material that was used. It all depends on the facts. If the use includes a large portion of the work, fair use is often less likely to be found. Conversely, if the use employs only a small amount of the work, fair use is more likely to be found. Interestingly, some cases have found the use of an entire work to be fair under the right circumstances while other cases have determined that using even a small amount of a copyrighted work was determined to be infringement.

This is also where the concept of “sampling” comes into play, among other factors. Sampling in the music industry refers to the practice of taking a portion, or “sample,” of an existing sound recording or musical composition and incorporating it into a new composition. Oftentimes, it manifests in the form of using a portion of one song in a different song or mixes. While transformative fair use is still a potential defense, “sampling” is the term used in the taking of pieces of other musical works.

A famous example is the case between the band Queen and the artist Vanilla Ice. Queen’s “Under Pressure” in 1981 has one of the most infamous bass lines in music history (yes, it just popped into your head). Vanilla Ice then sampled it for his song “Ice Ice Baby” in 1990. Attorneys for Queen threatened a massive copyright infringement lawsuit. Vanilla Ice tried to claim that his melody was different due to an added note between two of the beats. This, however, was not satisfactory to Queen, and they filed the lawsuit against Vanilla Ice anyway. Vanilla Ice ended up settling the case for an undisclosed amount, but this case provides a great example of how it can be hard to draw the line between what constitutes a transformative work and what remains as copyright.

4. Effect of the use upon the potential market for or value of the copyrighted work
Here, Courts look at whether, and to what extent, the unlicensed use harms the existing or future market for the copyright owner’s original work.

Respecting Copyrights and Best Practices

Giving credit to original artists and tracks within a DJ mix is a courteous sign of respect, but it can aid in establishing the transformative nature of the work. Be warned though, that attribution alone does not negate infringement.

After a copyright expires, a work enters what is known as the public domain. Works in the public domain are no longer protected by copyright and can be used freely by anyone. Works may also enter the public domain due to lack of proper copyright notice, or intentional dedication by the creator.

Lastly, to use copyrighted material in ways not covered by fair use or public domain, obtaining proper licenses or permissions from the copyright holder is absolutely necessary to avoid an infringement lawsuit.

Conclusion

DJ mixes and remixes can be a great means of artistic expression that can merge diverse musical elements into new and transformative works. However, those works need to operate within the framework of copyright law, which is often fact-specific and hard to decipher. DJs and artists must navigate this landscape carefully. By understanding the basics of copyright law through obtaining proper licenses and advocating for best practices, DJs and artists can continue to expand genres like EDM and create awesome new mixes that both respect the intellectual work of others and contribute to musical innovation.