J's Indie/Rock Mayhem

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Friday, August 08, 2008

Notes From Underground - #47
Meddling with Medleys

I'm about to open up a big can of worms with this, but here goes anyway:

Copyright laws.

There. I said it. I've had a column about copyright and sampling legalities brewing in my head for the better part of the last year, but just haven't known how to approach it. Then this past week something odd happened. Paul Westerberg's new digital-only release, 49:00, was pulled from Amazon and the other online distributors that were carrying it. Why? The by now somewhat infamous classic rock medley that leads into the last song on the album. Though details are somewhat sparse, it has something to do with copyright issues.

But what, exactly? And this is where I'm going to diverge from actually examining this issue and turning to you, faithful readers, for answers. Here is my understanding of how copyright/royalties work - you can cover anything you want. You don't have to have permission from the author(s), though I think it's often seen as nice, but by no means required. What is required is that either a standard, flat payment for use of the song, or else a chunk of sales persistent with the cover's percentage contribution to the album, is paid to the creators of the song.

Here's where my understanding gets muddy. So, Westerberg covered a handful of pretty famous songs on this medley. And he only charged 49 cents for the album on download. Since he is making a profit, but it's, in theory, smaller than the average physical record (or even download for that matter), could it be that the copyright owners wouldn't have been paid an appropriate amount? And if that's the case, should that prevent him from doing it?

What if he had given away the album for free? Then he's not receiving any direct profit from the covers and therefore has nothing to give the copyright owners. Should he be prevented from using the songs in those cases?

A lot of this is hypothetical, but the limits that are placed on artistic use are draconian at times. Preventing people from profiting exclusively from direct covers of other work is understandable, but the attacks on people who sample or borrow snippets of other songs, musically or lyrically, on the way to creating a unique and different work of art have been intense. If you're creating a different piece of art, building on the context of previous art, you're following in a pretty common folk tradition that goes back some time. But that's for another article.

So, what do you think? Copyright laws protect the use of people's art for purposes they don't want, but if profit isn't an issue, should they be allowed to stop use of their work? Could you argue that there is always profit to be gained since exposure is a type of profit? Leave it in comments.

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  • At 9:48 PM, August 09, 2008, Anonymous S. said…

    You can always argue that someone enjoyed an increase in the value of their name/brand/business, whatever, even if they gave the album/song/whatever away for free. Really, the issue becomes - can they prove it in the ensuing copyright suit? So, both sides hire economists at about $300/hr., and the jury has to decide whether the profits/increase in valuation/whatever is too speculative. I think in that case, honestly, the flat payment should be required, but people giving away albums is pretty new. The flat payment is more fair, b/c he's going to benefit from the original writer's hard work in some way, but it's not really very easy to quantify. I think artists other than local bands giving away albums for nothing is a relatively new thing, so this probably isn't well-addressed by the copyright statutes. There actually may be case law that settles this.. else, it muddies it more.

    On the other hand, you're a socialist who thinks people should be able to sample music/art/etc. and profit off the labors of others, without having to pay anything, so you probably just think this is a bunch of shit.

  • At 5:13 PM, August 10, 2008, Blogger sean coon said…

    yeah, josh, you socialist! haha.

    there's lots of good info on cover song copyright issue here, if you're interested.

    on the non-westerberg front: when it comes to actually playing a cover song (not sampling), all the artist has to do is send a formal letter to the publisher who holds the rights to the original song. that process automatically gives the cover artist a compulsory license for including the track on an album for sale.

    the monetary side of things is pretty straight-forward:

    * if the cover song is on an album that isn't going to sell more than 500 copies, there's no monetary compensation necessary

    * if the cover song is on an album that the artist thinks is going to sell 1,000 copies, then factor 1,000 X about $.09... or $90 to license 1,000 copies. artists are supposed to send out monthly checks if the initial sales estimate is overshot.

    * from what i've been able to gather, free downloads can be covered by simply obtaining a compulsory license.

    for DMP artists who play a cover and don't want to deal with these particulars, we simply exclude the cover on the amie stret release and don't allow free downloads of the track on the last.fm release.

    that's the extent of my cover/copyright knowledge.

    so did westerberg actually "cover" the songs you referred to? or did he pull a bit from each song in creating his uber long track?

    in any case, the $.49 price point is a genius way to get a ton of people to try his music out for the first time. he's definitely gaming the system -- where a long ass track (album without the cuts) sells for less than the cost of a single itunes or amazon mp3 track.

    so if a good chunk of the music is sampled or explicitly covers well-known songs, and westerberg didn't clear them or obtain something similar to a compulsory license, yeah, he's wide open to what's happening.

    we license all our albums with a CC license that allows for remixing, but not for commercial purposes. so westerberg would be able to mashup DMP music with his music, but not sell it.

    i don't know, josh. if westerberg created something artistic that included other people's music -- on one level or another -- then i can't imagine why he wouldn't have cleared it upfront. i mean, he had to see this coming.


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