There are a lot of misconceptions that go around the music industry, but copyrights are among one of the top issues. Unfortunately, it’s somehow become common knowledge that an artist can use another artist or band’s music if it’s fewer than 3 seconds. That’s simply untrue.
Consequently, these artists end up in court with six- or seven-figure fees to pay due to this infringement. The same issues arise with cover songs, purchasing beats, the “poor man’s copyright,” and simply being negligent with others’ rights.
Back in 2015, the co-writers for Robin Thicke and Pharrell Williams’ “Blurred Lines” sued Marvin Gaye’s family for declaratory relief, meaning that they were hurt either financially or their image was hurt from the suit originally put forth by the family of Marvin Gaye. Gaye’s family stated that “Blurred Lines” contains a similar melody to Gaye’s “Got To Give It Up.” Gaye’s family, however, were restricted in the case because the only item that was registered with the copyright office was the lead sheet, nothing more.
We sat down with Davey Jay, a music copyright and intellectual property lawyer at Meehle and Jay law firm in Altamonte Springs, Florida, so we can demystify the top five copyright misconceptions.
Perhaps one of the biggest misunderstandings when it comes to copyrights is sampling. The most understood and widely accepted definition of sampling is when an artist, DJ, producer, beat maker, whomever, takes another artist’s master recording and runs it through effects, such as time stretching, filters, or distortion and places it within their own track. They then claim the track in its entirety as theirs. At the end of the day, that sample isn’t yours; therefore, the track isn’t 100-percent yours. You can paint my car, put some sweet new rims on it, and add those loud mufflers that everybody loves. But at the end of the day, despite all the work you put into it, that’s still not your car. It’s mine. The same concept goes for sampling.
“I’ve only used a three second sample of their track, though.” In fact, there’s no such rule that states how long of a sample you can or can’t use, and the courts haven’t been able to agree as to how long a sample’s length can be used. “In a case called Bridgeport Music v. Dimension Films (6th Cir. 2005), which dealt with an N.W.A. song, ‘100 Miles and Runnin’,’ that contains a three second sample of a Funkadelic song ‘Get Off Your Ass and Jam,’ the court expressly rejected a de minimis defense (the taking is so small that it is legally insignificant - like if you stole a blade of grass from my front yard) for sound recordings and held that unlicensed sampling is copyright infringement,” states Davey Jay. “The court actually stated in its opinion, ‘Get a license or do not sample.’"
Now, three seconds is definitely a sampling that anyone can easily pick out and identify. That’s a significant amount during a track. Unfortunately, copyright infringement isn’t whether or not the sample will be recognized by consumers; rather, it’s the fact that another artist took something that wasn’t theirs. The case with VMG Salsoul v. Ciccone (9th Cir. 2016) is in regards to a sample in Madonna’s “Vogue” that was .23 seconds in length. The court determined this to be a de minimis and not an infringement. So what’s the verdict, your honor?
“If you sample, there’s a good chance that the owner will come after you, likely first with a demand letter and later a lawsuit,” says Jay. “Will you win that lawsuit? Definitely not in the 6th Circuit, maybe in the 9th, and who knows where else. The real question is, though, do you have at least $50k to defend yourself in that suit?”
Cover songs are legal; people do it on YouTube all the time!
Who doesn’t love to put their own spin on their favorite track and share it with the world? A lot of upcoming artists use this method to get some traffic through their SoundCloud and YouTube channels. It has to be legal as long as you’re giving credit to the artist(s), right?
“Well, I see people speeding all of the time, too. That doesn’t make it legal,” says Jay. “If you’re making an audio-only cover, a mechanical license is necessary. If it’s a video cover, you need a synchronization license.”
It’s hard for artists to keep track of where their copyrighted material is at on the internet, which is why platforms like YouTube have implemented content ID systems. Those messages YouTube sends you when your channel gets hit with an infringement is the content ID system. That is, in fact, not YouTube. That’s the copyright owner of the material you’ve uploaded, and if you read carefully it will state who that owner is. “The [copyright owner] can have the video removed by filing a DMCA notice, or they can choose to leave the video up, place ads on it, and take all of that revenue, leaving the creator of the video with nothing but, well, a video,” states Jay.
I bought a beat.
Everyone does it. Their friend or friend of a friend is trying to make it big, so they purchase a beat to rap or sing over and show the world what they’re capable of. As a matter of fact, you didn’t actually purchase the beat. “You likely just paid for a wildly overpriced, non-exclusive license,” states Jay. “In order to purchase the rights to a work, you MUST have a written agreement in place that specifically refers to the assignment of the copyright.
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Copyrights and contracts are like magic spells. If you don’t say ‘wingardium leviosa’ properly, it won’t fly,” adds Jay. Without this written agreement, the beat maker can turn around and sell that same beat to two, three, or 50 other artists. “Without a properly written contract, that beat maker could claim to be a co-owner of the new track, entitling him/her to an equal share of ALL money earned and equal control over the track,” adds Jay. Get it in writing that you are the owner of the track, not the original beat maker.
Poor Man's Copyright:
Another extremely common myth within the copyright world is that you can mail yourself something without opening it (proving it’s yours) and use it in court one day, should you need it. This couldn’t be more false. “People often mistakenly think this is a substitute for registering their copyrights with the U.S. Copyright Office,” says Jay. “It’s not. It literally gives you nothing but mail. Why? Because if I mail myself an empty, unsealed envelope today, it will go through the postal system and return to me with a postmark. Still empty. Still unsealed.”
You can begin your copyright registration via the U.S. Copyright Office here. If you’re not sure what you’re doing, please contact a lawyer to ensure your registration is done correctly.
Ignorance/Lack of Intent:
Just because you say “no copyright infringement intended” in the description of your YouTube video or SoundCloud cover does not mean just that. Whether you’re aware of it or not, you’re still infringing someone else’s rights when you sample or cover an artist’s track without the proper license and permission.
The same issues arise when you collaborate with someone who has sampled and infringed upon someone else’s rights. You’re just as liable as the infringer, regardless of whether or not you’re aware of the infringement. “Copyright infringement is like using an illegal substance,” states Jay. “Your liability has nothing to do with your awareness or your intent. You either did use an illegal drug or you didn’t.”
Copyrights can be a messy place, and not many artists are aware of the issues and their repercussions. We must respect one another’s craft and go about getting the proper rights when we use someone else’s work so the music industry can continue to flourish. An artist’s music is their property, just like your car is your property. Would you want someone to use your car without your permission? Probably not. Would you want someone to use your car and drive for Uber or Lyft without your permission and earning any revenue? Hell no. Copyrights are the same thing.