DJ mixes

[HWNDarkside]

Great site

Maybe you can shed some light on this for me? It's been bugging me for years...

In 1991 a promoter books a DJ to play a gig for them. The DJ plays for 1 hour, using 20 different songs by 20 different artists. His live mix is recorded by the promoter and later sold in cassette format.

The music in question is not mainstream. At best, songs would have sold no more than 10,000 copies. Most are limited pressing of 500 copies never to made available again. Most of the songs are sample-based. Assume Artist A samples "The Winstons - Amen Brother" for the main drum-loop in their track and does not have permission from The Winstons to use it.

You can assume that the DJ may have had verbal consent from some of the artists but there would be no formal document outlining authority to use their material. Nor is it likely any payments were made for their use.

You can also assume the promoter may have had a clause in the contract with the DJ to reproduce and sell their mix (but from what I've read wouldn't they actually need the permission of the artists involved and not the DJ?)

I have a copy of the mix in MP3, downloaded from some random site. I now host this mix on my servers for others to download.

(1) Has the promoter any legal right to the recording? Am I breaching their copyright by distributing the mix for free? Could they sue me for hosting what they consider to be their material?

(2) Was the promoter in breach back in 1991 when they sold the recording of the mix?

(3) Does the copyright trail mean you would need permission from The Winstons, or Artist A, to publish the mix legally?

Any thoughts would be greatly appreciated

[AndyJ]

It may (or may not!) surprise you to know that this is a very imprecise area of Intellectual Property law. At its heart is the question of whether a sample constitutes an infringement, and therefore whether or not prior permission is required to make what is called a derivative work, namely the DJ's mix. The law is vague and was written before the phenomenon of sampling was really recognised.The law says that if a 'substantial' part of the original work is used then this constitutes an infringement, but it will be up to a court to decide what substantial actually means in each case. For instance in one test case, the use of 12 bars of an original piece of music was considered substantial because the original piece (an item of music in newsreel film) was itself not very long. On the other hand, if you believe the PRS for Music site (http://www.prsformusic.com/creators/wan ... mples.aspx) all samples require the permission of the original copyright owner. Personally I would view this statement as being over-simplistic, especially as PRS has a reputation for aggressively pursuing its members interests.
So it will entirely depend on the amount of each sample contained in the mix(es) as to whether prior permission should have been obtained. If the mix is found to contain infringing amounts of other people's copyright material, there cannot be a separate valid copyright in the recordings of the mix released by the promoter (and he faces the possibility of both paying damages and having his stocks of the recording seized).
Let's assume for one moment that the DJ mix did not infringe any earlier copyright, because either the sample was small or the DJ had permission to use the sampled music. In a derivative work, the DJ as creator of that work would hold the copyright and he could assign that right to the promoter (ie transfer it absolutely) or he could licence the promoter to market the recordings but he (the DJ) would retain the copyright itself. Ideally such things should have been put down in a written contract, which you mention may have happened. A lot would depend on the wording of that contract in determining the promoter's legal position to enforce his agreement with the DJ over distrbution of the recording. If it was a non-exclusive licence, then the DJ might well be able to authorise others (for instance you) to also distribute his mix, although from what you have written it sounds as if the promoter was responsible for actually recording the mix during a live performance, so he may well own the copyright in the recording (as distinct from the performance by the DJ) and a second recording of the same live perfomance would be unlikely.
So following on from that background, I will try and answer your specific questions.
1. Assuming the DJ mix did not itself infringe copyright, then you would be infringing copyight in the promoter's recording if you distribute it via a website. Either the DJ or the promoter (depending on what they agreed at the time of the recording) could sue you. However, if the mix was itself held to infringe the earlier music which was sampled, then the DJ mix holds no separate copyright, and your use of it now would not be actionable by the DJ or promoter, but you could be subject to an action brought by one of the copyright owners of the original music (Winstons, Artist A etc).
2. Obviously whether or not the promoter was in breach (for distributing the recording) depends on whether or not the mix was itself an infringement. As he was the only person who actually seems to have made any money out of this project, it is more likely that the Winstons & Artist A or their management would be more likely to go after the promoter because an award of damages would be more likely if they won.
3. Assuming that the samples in the mix were 'substantial' then yes, permission would be necessary from the original artists or their agents. If you beleive that the DJ had verbal permission to use the samples, then a court might find that the mix was a valid copyright work, thus making the promoter's recording OK. But you would still need either the DJ's permission, or the permission of the promoter to publish the mix on your website.

[HWNDarkside]

Thank you for a very concise reply

A couple more questions if I may.

I run an internet forum (much like this one); if a member posts a link to download a mix hosted on a free file-sharing site (megaupload etc) am I responsible for any copyright breach as owner of the forum?

If someone claims to have copyright on a file what evidence would they need to produce to back up their claim?

Thanks again

[AndyJ]

If you only host the forum which has the link, and not the actual file which contains disputed copyright material, it is highly unlikely that you will be liable in respect of any copyright infringement. The normal grounds under which a website might be liable is one of the following from the Copyright Designs and Patents Act 1988:
Section 18: Issuing copies to the public (ie 'publishing')
Section 23: Possessing or dealing with infringing copies,
or most seriously
Section 107: Criminal liability for making or dealing with infringing articles.

I am not aware of any cases in which the 'dealing in' element has been successfully applied to the activities of a forum. A forum clearly does not either issue or possess the material that is hosted on another site.

Although sites like Youtube and Vimeo are regularly sued for hosting infringing material, cases brought against sites like Google which effectively just point users towards sites where such material is hosted have generally not succeeded. I think your example is analogous to that situation. The reason I am not saying that there is no risk to your forum is that this is an area where the law is constantly being tested, especially in the US courts.
However at present most site owners which host forums and blogs etc are protected to certain degree by what are known as Safe Harbour rules, which say that as long as a site admin has no reason to suspect something posted on their site may infringe copyright, the site is not liable. However once a copyright holder informs the site admin that some material on the site allegedly infringes their copyright, the site may be liable if it does not take reasonably expeditious steps to remove the item. This can be done informally, or more formally via a DMCA takedown notice. The site owner does not have to comply but runs the risk of becoming involved in litigation if the matter does go to court. The person who posted the alleged infringing material has the right to issue a counter notice, after which if the original complainant does not institute legal procceedings against the poster (not the site) within a specified period, the site admin must reinstate the material which was removed. In other words the site admin acts as an honest broker between the two parties and thus indemnifies himself. That's the theory, but because of the different legal jurisdictions and the worldwide nature of the Internet, disputes may not always follow the same course. The large music and film companies who have big legal departments, have been accused of what might be described as bullying tactics (see http://chillingeffects.org/) in the way they operate their Takedown Notices so that it is easier for sites like Youtube just to comply with the first bit and not bother to see if the poster wants to challenge the Notice. They also seek out courts in countries which have a less sophisticated laws for dealing with this kind of infringement. Lots more detail here: http://en.wikipedia.org/wiki/Online_Cop ... tation_Act
From the foregoing, you can see that initially a complainant does not have to produce any evidence to back up their claim, although in the case of a proper DMCA Takedown Notice, there are penalties for anyone who knowingly makes a false claim of infringement.

[HWNDarkside]

Thank you once again - another concise answer

I guess that leads to my 2nd question then - if someone claims to have copyright on a mix what evidence would they need to produce to back up their claim?

[AndyJ]

I assume that you mean proof which a court would require, because I said previously, the claimant doesn't have to prove anything to you as a site owner. It then becomes a game of poker as to who blinks first! Because copyright infringement is a civil matter (unless it's being alleged on a large scale like the bootleg Chinese DVDs of feature films for instance, where that would be a criminal matter) the onus lies with the copyright owner to take you to court - which is expensive. Copyright cases cannot be dealt with in the County Courts and have to go to the High Court. Thus realistically anyone bringing a case will need a solicitor and possibly a barrister to get anywhere. So arguably it has to be worth their while financially to go that route, rather than just a matter of principle. If you have not been making money through offering the disputed mix via your site, an award of damages against you - assuming the court finds in favour of the other guy - would not tend to be large, especially if you provided evidence showing that the promoter had not lost money through reduced sales because of your action, if he did not actually have the recording on sale at the time. It is up to the discretion of the Court whether costs for the other side should be awarded against you.
The exact method of establishing that someone owns copyright in something like a mix would depend on several tests; firstly was the mix sufficiently different from the samples to make it a separate creatvie work which could attract copyright in the first place? If it passes that test, who was the 'author' (ie the DJ in this case) who would normally be the copyright owner, and is there any evidence to show when the material was created? Sometimes this is done by registering a copy of the work with a third party copyright registry. Obviously if two people dispute who was the actual 'author' a court would need to decide between the two claims first before deciding on whether there was infringement. I assume that isn't the case here, and that the authorship aspect is not in dispute. If it is the promoter who sues you, he needs to establish that he was authorised by the DJ (the author) to make a copy (the recording) of the performance. If he can't satisfy the court that he had permission to make the recording, he can't claim copyright. If there is some sort of written contract to back up his version, then this would probabaly satisfy that step. The promoter will then probably be deemed to have the copyright in the recording - which is a separate enity from the performance itself - and so the remaining step is for the claimant to show that the mix you are hosting is the same as his recording (and not for instance a separate, authorised recording of either the same performance or a different performance) and that you did not not have his permission to use the recording on your site. Clearly here both the claimant and you would each need to produce some expert testimony to support your case if this was a disputed issue. And the DJ's evidence would also be key here, as to who he authorised to record his performance(s), assuming he didn't actually record it himself.
If the DJ actually recorded the mix himself, and then allowed the promoter to distribute his recording, the situation is somewhat different. In this instance the DJ would own both copyright in the performance and in the recording. The promoter's position then depends entirely on the agreement berween him and the DJ. Did the DJ assign copyright in the recording to the promoter or did he merely licence the promoter to publish the recording. If it was the latter, was the licence exclusive or non-exclusive: this could be in terms of time or territory or any number of other stipulations. For example the agreement could have said the promoter had the UK rights to distribute the recording in cassette format for 10 years, which would allow the DJ to sell the European or American rights or UK CD format rights to someone else. I doubt if the agreement was actually that detailed, and might even have been verbal, in which case there is less certainty about the final outcome.
As you can see this gets very complicated and that's why high-priced legal help will be required. Should you get taken to court you will need to offer credible evidence to counter the claimant's evidence. If you don't or can't, then clearly the court is more likely to find in favour of the claimant. This is unlike a criminal court where you are presumed innocent until proved guilty. In civil cases both sides are presumed equal at the outset, and although the onus is on the claimant to prove his assertion, it is on evidence which each side produces to support his case that the court decides.
As a final point it is probable that the next step for the claimant will be to get a solicitor to write to you. This could take two forms, either a cease and desist notice (ie "take down the disputed material and we'll say no more about it") or a demand for some payment for alleged loss of income by the claimant due to your actions. The threat behind both these approaches would be to take you to court if you don't comply. That's when all the above procedure would kick in, although either side can elect to settle the matter out of court at any stage right up the the court's finding. Beware also the small claims court procedure. As I mentioned County Courts (which include the small claims courts) cannot deal with Copyright cases, but it has been known for claimants to issue invoices to cover fees for a usage licence, which when you don't pay up, allows them to go to small claims court to recover the monies 'owed'. Should this happen to you, firstly write to the claimant and deny that you owe him the fees, and when/if this is followed by a Claim Form from the Court, you must again refute the claim that you owe money and make it clear to the Court that the claim is founded on a disputed claim of copyright infringement. Normally this will be sufficient to persude the Small Claims Court that they should not deal with the matter and refer it back to the claimant.

[HWNDarkside]

Really, really interesting

What fascinates me is that, especially in the music I'm concerned with, sampling is/was a major part of most productions. Drum loops being the main culprit! A 6 minute track could contain the same unlicensed loop for it's entire running length, along with various piano and vocal samples.

The Amen break is probably the most famous example. Orginally taken from The Winstons 1969 release, Amen Brother, it's probably the most abused drum loop in history!

Firstly was the mix sufficiently different from the samples to make it a separate creative work which could attract copyright in the first place?

Assuming the mix is 20 tracks, and each track in it's original form is 6 minutes long; the DJ then uses 4 minutes of each track to create his mix.

I doubt this would class as "sufficiently different"?

In which case the DJ is effectively breaking the artist's copyright?

[AndyJ]

There are two slightly separate things at play here. The first is, has the DJ used a 'significant' amount of another track in the sample to constitute infringement of the copyright in the first track - or to put it another way: does the DJ need permission to use the sample?
The second area is: how much originality is there in the mix? If, in the case you quote, the DJ uses 20 separate samples then it is likely that the mix will be highly distinctive and separate from the original and thus be judged a work worthy of copyright on its own. If the work is not thought to be sufficiently distinctive or the result of effort and skill, it doesn't follow that the mix therefore infringes some one else's copyright. For example, part of the test of creativity requires it to be the work of a human mind, and not the result of a purely mechanical process. In theory a computer could take random samples and blend them together in a way that would produce something original and distinct from the samples but it would not be eligible for copyright unless the human who programmed the computer was thought to have been responsible for the actual outcome. So a computer-generated piece of music which didn't earn copyright would be just that, but it wouldn't infringe anyone else's copyright just because it failed to gain copyright protection.
To take a separate analogy, an artist takes 20 or 30 famous photographs and without changing them in any way he arranges them in a collage, perhaps so that the collage represents a completely different type of image. His work would probably be judged to be a piece of art in its own right - and therefore protected by copyright - because of the skill and creativity he had put into making the collage. But the individual pictures he had used were clearly still fundamentally the work of their separate authors, so he would need permission from those copyright owners if he was not to infringe their copyright. If his work infringes their copyright, it cannot earn copyright protection on the principle that something beneficial cannot be founded on an unlawful act. (Non faciat malum, ut inde veniat bonum - variously translated as: "let no-one gain advantage by his own bad deed" or "You are not to do evil that good may come of it").
As I mentioned before this is a really messy area as far as legal precedent is concerned, because so much depends the indiviual features of each case. To take a few bars of music from an entire symphony might be judged OK because compared to the size of the score of the whole piece a few bars might be considered insignificant, whereas on another interpretation, using a highly recognisable motif consisting of just a few notes from someone else's music might be treated as significant because of its recognisability. It is not helped by the fact that some artists (or their management) view sampling as a tribute to their work, and do not discourage it, whilst others pursue infringement in the hope of gaining damages. The music business as a whole is pretty divided on intellectual property rights issues.

[HWNDarkside]

If his work infringes their copyright, it cannot earn copyright protection on the principle that something beneficial cannot be founded on an unlawful act

Very interesting comment.

So if Artist A produces a record using, in the main part, unauthorised samples, they cannot claim copyright on their production unless it is

highly distinctive and separate from the original and thus be judged a work worthy of copyright on its own

If not, no copyright.

If no copyright, then a DJ who plays that record has no right to claim copyright on his mix, nor would the promoter who recorded and distributed their performance?

Minefield!!

[AndyJ]

Minefield indeed. Because of the long chain involved here, where each step relies on the previous one being lawful, this would make an interesting test case, although of course for your sake I hope it never comes to court!

[HWNDarkside]

I doubt it would ever come to that. As far as I'm concerned I'd rather remove any offending material - not that I make any financial gains from them anyways.

I really appreciate your time responding. It's an area that has been difficult to get any real clarification on - thank you