Monday, June 20, 2016

Steal This Riff: How To Fix Copyright Law And Set Musicians Free

Written by Miles Raymer — Could compulsory sample licenses solve a problem that has vexed hip-hop and dance musicians for decades?

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 It’s an outdated regime, completely unequipped to deal with the realities of a modern world where cheap audiovisual software has made remix artists out of everyone from grade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. This used to be a controversial opinion, one you’d usually only hear coming from techno-libertarian bloggers and hard-core hip-hop heads — but as remix culture has crept from the margins into the mainstream, so has the idea of updating our copyright laws to make room for these new types of expression.

These days, support for remixing is coming from some unexpected places. “There are a lot of new uses that copyright enables that we want to encourage, that we are very excited about,” says Shira Perlmutter, chief policy officer and director for international affairs for the U.S Patent and Trademark Office. As part of the the United States Department of Commerce’s interagency Internet Policy Task Force, Perlmutter helped conduct a five-year study on copyright and the Internet. One of the things they looked at was “remixes,” a broad term they use to cover not just remixes as commonly understood, but also sampling, mash-ups, and other types of what are known legally as “derivative works.”

In January, the task force released a white paper summing up its studies, including testimony from the entertainment and tech industries. It concluded that remixes “make valuable contributions to society in providing expressive, political, and entertainment content. It is important that the copyright framework continues to allow both to thrive, ensuring that a vibrant fair use space coexists with effective licensing structures.”

U.S. copyright law is still based on the Copyright Act of 1976, which has been amended a number of times since it was first passed but still has no room for derivative works like sampling and remixing outside of fair use protections that are intentionally vague, designed more as a guide for judges hearing copyright cases than a set of hard and fast rules for artists. “I think that level of flexibility and unpredictability is both a glory and a curse,” Perlmutter says.

Since fair use is a matter of case law, it’s decided by legal precedent, and the precedents handed down in court since 1991 — when 1970s singer-songwriter Gilbert O’Sullivan sued Biz Markie in the real first legal case over an uncleared sample — have overwhelmingly supported copyright holders in sampling disputes. The result has been increasingly strict rules on ever more popular types of derivative works, and a confusing, half-improvised system for clearing them legally that even professionals have a hard time navigating. As sampling-based genres like hip-hop and dance music continue to crest in influence, and new platforms like SoundCloud and YouTube make it even easier for artists to distribute their works — derivative or otherwise — the problem has become exponentially more complicated, and the flaws in our copyright system more pronounced.

“The Copyright Act doesn’t make sense for anybody,” says Dina LaPolt, an entertainment and IP lawyer, and self-described “activist for creators and celebrities,” who works with A-list musical clients like Aerosmith’s Steven Tyler.

Despite her acknowledgement of the Copyright Act’s many flaws, LaPolt sees the current difficulties with clearing samples and remixes as more of a market failure than a legal one. Instead of changing the laws, she’d like to see the system updated to be easier to use — calling on solutions as simple as a global database of who owns what rights to what songs, which as of now is often ridiculously hard to figure out — but still based around the market dynamics the process has worked on for the past 25 years. “I agree with sampling,” LaPolt says, noting that she’s a former representative of the Tupac Shakur estate. “But the original creator has to be able to negotiate the sample themselves, in a free market.”

The Internet Task Force basically agreed with that argument. The white paper’s section on remixes concludes that “enhanced voluntary licensing options should play a significant role in permitting remixes alongside fair use in appropriate cases,” and there’s no pressing need for legislative change. “It’s easier for the market to come up with new ideas and to adjust them to existing circumstances than it is for us to do through legislation or regulation,” Perlmutter says.

There seems to be a consensus on all sides of the debate – from artists like Don Henley and Deadmau5 to the Internet Task Force — that business customs and market forces will bend in favor of remixing and sampling in time, effectively undoing years of bad legal precedents and often antagonistic relationships between sample-using artists and copyright owners. But that’s not the only solution available.

Berkeley law professor Peter Menell is the leading proponent of a radical idea to replace the entire current ad hoc system to clear derivative works with a much simpler and highly controversial alternative. (He’s also an ardent fan of mash-up DJ Greg Gillis, a.k.a. Girl Talk.) “I see the copyright system as this great safety valve for every generation,” Menell says. “I can see how so much of the creativity is getting put out into these gray channels, these areas that are not fully embraced by the market. So much of it is not really part of a well-functioning market.”

Menell’s solution is to apply something called a compulsory license to sampling, remixing, and other derivative works. Compulsory licenses replace the process of gaining a copyright holder’s permission to make use of their original work with a flat royalty structure and a set of rules for how the work can be reinterpreted. We already have this kind of setup for cover songs: Under U.S. copyright law, anyone can perform and record any song that anyone else has written and recorded without getting their prior permission, as long as they pay a royalty to the copyright owner. This is why pop-punk bands can cover Top 40 songs, why iTunes is full of sound-alike cover versions of hit songs by artists it doesn’t have deals with, and why hip-hop producers often hire instrumentalists to play “interpolations” of musical passages they want to sample but can’t clear.

A theoretical compulsory license for derivative works would work the same way. For the promise of a percentage of future royalties (plus maybe a flat fee) and a few guidelines (like how many seconds of an original recording they can sample), any musicians would be able to sample, remix, or otherwise reinterpret any pre-existing recording they want. They wouldn’t need to negotiate permission or fees with the original artist, or even need to know anything about intellectual property law.

“My proposal would somewhat be a shock to the system,” says Menell. “But the reality is, Greg Gillis shocked the system. We live in a country with very strong free-expression values. So I think what we ought to be focused on is trying to support the artist — both the original artist and those who build on their work. That’s just part of the kind of freedom that has been central to our entertainment industries.”

So far, the system seems resistant to the idea. Although there are intellectual property lawyers who back the idea of compulsory sampling licenses — one described it to me as “a movement” — there wasn’t much support when Menell put it in front of the Internet Policy Task Force. No other member of the Task Force’s roundtable voiced support for the idea, although Menell says some people who spoke out against it have claimed off the record to be open to it.

In fact, so far the opposition to compulsory licenses is far larger, more visible, and — thanks to LaPolt — better organized than any movement supporting them. When the Internet Policy Task Force issued a green paper in 2013 announcing its mission and suggesting that compulsory licenses for derivative works would be one subject it would explore, LaPolt and Steven Tyler issued a strongly worded letter warning of the “chilling effects” that compulsory licenses would have on creativity. An alliance of superstars including Ozzy Osbourne, Deadmau5, Britney Spears, and Don Henley submitted similar letters to the committee. “[H]ad I anticipated that, in the future, the songs and recordings I crafted so deliberately and carefully could be altered by anyone, without my express permission, in any way that diluted the integrity of my work,” Henley writes, “I question whether the creative path is one I would have chosen for myself.”

Artists as commercially successful as Henley and Tyler stand to lose a lot if they were compelled to allow samples of their work. “They feel the same way about their copyrights as they do about their house,” LaPolt says. On top of that sense of ownership over their creative work, there’s also the matter of money. Owners of famous material can charge a premium for popular works. There’s a reason why the monster drum break from Led Zeppelin’s “When the Levee Breaks,” once a staple of hip-hop production before Biz’s lawsuit, now only appears on mega-budget records like Beyoncé’s Lemonade. Under a compulsory license, Zep wouldn’t be able to charge any more for their platinum classics than any local band with a SoundCloud page.

Still, Menell, who holds a Ph.D. in economics from Stanford University, argues that compulsory licenses would actually allow copyright owners to turn a profit by collecting money that’s being left on the table under the current system. YouTube and SoundCloud are full of unauthorized derivative works like bootleg remixes and songs with uncleared samples; those sites are under increasing industry pressure to remove such content from their platforms, and filtering software is helping them target copyright infringement with increasing sophistication. 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. Having cleared samples could also allow more artists access to paid platforms like Spotify and Apple Music that have stricter policies on infringement, potentially opening up additional royalty streams for sampler and samplee alike.

Artists would have to give up the sense of sole ownership that opponents of compulsory licenses argue is essential for creativity, but that seems to matter less to younger musicians. For a generation that came up on beat-jacking rap mixtapes, illicit “Hotline Bling” remixes, Kanye West albums full of large chunks of other rappers’ songs, and a whole spectrum of derivative works, it’s taken for granted that one artist’s finished recording can serve as a building block for another artist’s work. Whether there are any modern-day Don Henleys forgoing musical careers out of fear of being sampled against their will is impossible to say, but there’s certainly a chilling effect on creativity coming from powerful artists who don’t appreciate how their work is being repurposed, and are willing to involve lawyers in order to opt out of their medium’s evolution.

A compulsory license would give musicians access once again to material like “When the Levee Breaks” — works that have become a crucial part of hip-hop and dance music’s cultural heritage, regardless of how the original artists feel about the honor — as well as the catalogues of historically important artists like George Clinton that have been exploited by sample trolls for years. Praise for sample-heavy masterpieces like De La Soul Is Dead and Paul’s Boutique wouldn’t have to be followed anymore with the phrase, “But that could never happen now.” Fans wouldn’t have to wait a decade or more between albums by sample-based acts like Avalanches. The artistic evolution of sampling, remixing, and other types of musical derivative works would be set free from the financial constraints they’ve been bound by for most of their existence.

Clearances for derivative works are at a similar inflection point to the one recorded music in general faced at the dawn of the millennium, swarmed by new technology that’s disrupting old systems and the old systems’ way of making money. The industry spent more than a decade fighting losing wars against piracy before getting onboard with a streaming model that made legitimate listening so much easier than illicit downloading that users were willing to pay for it. Sampling and remixing need to do something similar. Maybe it’ll be a market-based solution, like online stores for samples and song stems that include permission to make derivative works from them, a practice that has already begun to catch on with dance music producers. Maybe samplers and copyright owners will figure out a way to streamline negotiations themselves. Or maybe we just need to change the rules entirely.

“I know how the industry functions,” Menell says, “and that model doesn’t work for the digital era. I’m coming up with what I think is an imperfect system, but much closer to ideal than what anyone has talked about.”

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