Steven Tyler, Don Henley And Others Join Forces To Fight A Compulsory License For Remixes

from the legacy-artists-attempt-to-control-how-culture-works dept

Wed, Feb 12th 2014 10:16am — Tim Cushing

The US Dept. of Commerce has been collecting input on IP issues through its Internet Policy Task Force (the commenting period wrapped up Dec. 5, 2013). One of the suggestions it sought input on was the creation of a compulsory license that would allow artists to remix the creations of others by simply paying a flat fee, much in the way cover versions are handled now.

The response has come back from several artists and entities (via some "late comments") who see remixes (and mashups, etc.) the way they see most derivative works -- as something that shouldn't be allowed without the originator's permission.

In a letter signed by Steven Tyler of Aerosmith and music attorney Dina LaPolt (and echoed by like minded artists like Don Henley, Joe Walsh, Sting, Deadmau5 [somewhat disappointing] and entities like BMI, SESCAC, ASCAP, etc.), LaPolt details their opposition to streamlined remix licensing. The rationale propelling this letter is nothing short of bizarre.

First off, LaPolt asserts that artists should be able to control use of their music.

Approval is by far the most important right that an artist possesses… If an artist or songwriter does not want his or her music used in a certain way, no amount of money will change his or her mind.

Artists can, and should continue to be able to, deny a use that they do not agree with. For one, an artist should be able to turn down uses in connection with messages that the artist finds objectionable…

LaPolt's parade of horribles follows this assertion. Melissa Etheridge remixed with homophobic slurs. Ted Nugent coupled with anti-gun sentiments. Sting's soulful voice draped over a National Beef Council ad. (The last one I made up.) The possibilities are endless.

But this concern is essentially meaningless. An unlicensed remix can still do all these things. The only difference is that the original artist goes unpaid. There's only one way to control how people will use your creation, and that's to lock it away unreleased. Rejecting a compulsory license simply cuts off a potential revenue stream, and instead of protecting artists from derivative works they don't approve of, it simply ensures they'll never be paid for the derivative works that will be created without their explicit blessing.

LaPolt seems to believe that artists will actually do the only thing that can protect them from unsavory derivative works.

Without a doubt, requiring a compulsory license for derivatives would discourage many artists from releasing their work in the first place. Steven and the other artists who have expressed support for our comments have stated that they probably would have withheld some of their work if they knew that one day they would be required to give up their right to approve derivative uses.

"Would probably have withheld some of their work." That's hardly a powerful supporting statement, especially when reported secondhand. I have serious doubts any of these artists would have "withheld" any creations because they were worried someone might offensively remix them. Artists create, and stashing it in the archives isn't nearly as satisfying as releasing it to the public, even if there's a small chance someone might crank out an unlicensed derivative work that offends their sensibilities. (Not only that, but considering the roster of supporting voices are all major label artists, it's highly unlikely the decision to release or not release would have been completely in their hands.)

Moving on, LaPolt insists there's already a "robust marketplace" for remixes, by which she must mean there's a limited marketplace that pays handsomely for a select few artists.

The thing is: LaPolt and her co-signers can't prevent derivative works. An vibrant mashup scene is nearing two decades of doing whatever it wants with the works of others. These artists know they can't sell what they've made, but they've found other ways (donations, live gigs, DJ gigs, themed events) to turn entirely derivative works into a viable form of income. Any DJ worth his salt has dropped dubplates and white labels that contain unlicensed mixes into their DJ sets. And they've seen others do the same with their works, spinning off their own remixes and mashups, all without permission. (And returned the favor by including these unlicensed remixes of their own work into their DJ sets.) There's little to no evidence out there that suggests DJ/producers are shoving new tracks into the sock drawer just to keep thousands of bedroom producers from cranking out terrible, unlicensed remixes.

Artists fighting against this sort of license are not only eliminating a revenue stream, they're ignoring the history of creative works. The phrase "everything is a remix" isn't just something conjured out of thin air and wishful thinking. Culture builds on culture and not every derivative/remix is going to make the original artists happy. But that's the way it goes. The only way to prevent reinvention is to lock the original invention up and resign it the self-imposed obscurity of the studio vault. That's the ultimate veto and, compulsory license or no, that's the only way to prevent the inevitable. Fighting this just leaves artists with the relatively worthless power to say "no."

Lapolt and Tyler Comment (PDF)Lapolt and Tyler Comment (Text)

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Filed Under: compulsory licensing, don henley, remix, steven tyler

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Ninja (profile), 12 Feb 2014 @ 8:56am

Without a doubt, requiring a compulsory license for derivatives would discourage many artists from releasing their work in the first place.

We accept the wealth of new creations in detriment of the possible "losses" suffered due to short sighted morons not releasing their works.

Signed,

Culture
Common sense

and specially

The People.
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That One Guy (profile), 12 Feb 2014 @ 9:02am

Potential problem
I can't help but worry that such a 'license' would present a problem when it comes to fair use, including parody and whatnot, as while currently such uses of a work are free, given fair use requires neither payment or permission, having a 'remix license' would seem to be a step towards the idea of 'The only fair use is paid use', something quite damaging to Fair Use.
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Leigh Beadon (profile), 12 Feb 2014 @ 10:02am

Re: Potential problem
Indeed. Compulsory licenses are a bit of a double-edged sword... Within the context of an industry that has locked everything down, largely just with its standard practices and ways of doing business, creating a de facto version of copyright that doesn't allow remixes except with specific permission, then compulsory licenses are an improvement. Just as how the compulsory licenses for cover songs that we have now are better than if the industry controlled compositions the way it controls recordings.

But, as you point out, there's an extremely strong argument that no license should be required, and many if not all remixes fall under fair use / transformative works. But that can only ever become the standard if someone with some muscle decides to stand up for it in court -- which nobody will ever bother to do if they can just get a cheap compulsory license.
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DannyB (profile), 12 Feb 2014 @ 10:30am

Artists controlling the use of thier work
Pardon this being a bit off topic.

But since when should artists ever be able to control the use of their work? Once they put it out there in the public, and the proper license rights have been paid (public performance, syncronization, etc, etc), then why should the artist have any say in *how* the licensed work is performed?

Is there some section of Copyright law on the books that I missed?

Furthermore, the artist should not have any say so over any particular way that a work is used if it also happens to qualify as fair use.

In the cave man days, if Joe came up with a new song, did he have any kind of right to control how other people used it, spread it, etc?
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Anonymous Coward, 12 Feb 2014 @ 10:40am

LaPolt's parade of horribles follows this assertion. Melissa Etheridge remixed with homophobic slurs. Ted Nugent coupled with anti-gun sentiments. Sting's soulful voice draped over a National Beef Council ad. (The last one I made up.) The possibilities are endless.

But this concern is essentially meaningless. An unlicensed remix can still do all these things. The only difference is that the original artist goes unpaid. There's only one way to control how people will use your creation, and that's to lock it away unreleased. Rejecting a compulsory license simply cuts off a potential revenue stream, and instead of protecting artists from derivative works they don't approve of, it simply ensures they'll never be paid for the derivative works that will be created without their explicit blessing.

Furthermore, not only do they go unpaid, if the purpose of the remix is to comment on the original artist's stated political views through parody, not only can they not stop it but that expression is explicitly protected by the 1st amendment and fair use.
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xenomancer (profile), 12 Feb 2014 @ 10:43am

Ad Extremum
Perhaps we should give them what they really want: all music ever written, played, recorded, hummed, whistled, thought of, or conjured by the will of Mad Max may only be enjoyed by individual persons in special auditory isolation chambers; only registered "content producers" can participate in "content" synthesis; any gross acts of domestic auditory terrorism, or "violations," with respect to the sampling of said "content" will result in a binding contract of servitude under the discretion of the "content producers" for the natural life of the violator plus one day; and, finally, only current "content producers" may designate another person as allowed to become a "content producer."

/sarc!

Quite frankly, that the cognitive dissonance of making any and every physical expression of human activity a copyrighted asset while maintaining the stance that said actions of the whole of human kind may never be derivative without some kind of permissions transaction has been allowed to fester this long is asinine. It's amazing we've managed to MAFIAA things up so badly.
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Anonymous Coward, 12 Feb 2014 @ 10:44am

Re: Potential problem
I see this as an either or choice that a remix artist can take. They can either pay the compulsory license and rely on that for their defense OR they can attempt defend themselves with a fair use claim. I don't see where one necessarily has to replace the other.
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Anonymous Coward, 12 Feb 2014 @ 10:48am

i can see this working much the same as people buying blank cds and dvds, with an extra amount included to compensate 'artists' for file sharing. those same artists and the pricks they were stupid enough to sign up with still want people bankrupted, families split apart and prison sentencing thrown about, even though that extra amount has already been paid! and as for ASCAP, i would have thought it a good idea for them to keep quiet, given the shit pit they have dug for themselves and hopefully the labels, which again hopefully will come back and bite them all extremely painfully in the throat!!
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Anonymous Coward, 12 Feb 2014 @ 10:55am

Re: Re: Potential problem
Oh I think SOMEONE will eventually bother to do it simply based on principle. In fact, what might be interesting would be for someone to announce a crowd sourced project to create a work simply for purpose of creating the legal situation where this can happen, using the majority of the crowd sourced funds to pay to litigate the case once a suit is brought against them. And if a suit is not brought the project could promise to use the funds to defend another case brought against another remix artist that is facing similar litigation.
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DV Henkel-Wallace (profile), 12 Feb 2014 @ 10:57am

Re: Artists controlling the use of thier work
Indeed, should a painter control what color wall I hang the painting on?

Toyota doesn't try to control how drive their car, even if you use it as a getaway vehicle.

Apple doesn't try to control what you say with a phone they made.

I don't try to control what source code you compile.

Why to these guys get special treatment?
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DV Henkel-Wallace (profile), 12 Feb 2014 @ 10:57am

Re: Artists controlling the use of thier work
Indeed, should a painter control what color wall I hang the painting on?

Toyota doesn't try to control how drive their car, even if you use it as a getaway vehicle.

Apple doesn't try to control what you say with a phone they made.

I don't try to control what source code you compile.

Why to these guys get special treatment?
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Mike Shore (profile), 12 Feb 2014 @ 11:03am

The irony
Aerosmith was dead and buried before Run-DMC brought them back to life in 1986 with their mashup of "Walk This Way".
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M W Lees-Gro�mann, 12 Feb 2014 @ 11:05am

Run-DMAerosmith is against this?
You'd think a band that was so drugged out and washed up as Boston's other big band might have learned something from remixes.

Maybe Tyler just wants a rider in there about the original band getting to be in the video as long as they're able to stand up straight for five minutes at a stretch.
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Anonymous Coward, 12 Feb 2014 @ 11:08am

Re:
Next politicians like Rogers and King will claim to own the words that come out of their mouths when they say stupid things and claim that they have a right to prevent people from quoting them to criticize their views because the find the views of the critics "objectionable". Also, does this mean defendants in criminal cases have a right to control how the things that they said are used against them in court because the find the views of the prosecutors "objectionable"?
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Anonymous Coward, 12 Feb 2014 @ 11:08am

Re: Re: Artists controlling the use of thier work
"Apple doesn't try to control what you say with a phone they made."

They would if they could.
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DannyB (profile), 12 Feb 2014 @ 11:13am

Re: Re: Artists controlling the use of thier work
> Apple doesn't try to control what you say with a phone they made.

They very much try to control what you read with their phone, that they own, which you paid for to carry in your pocket.

They try to make sure you don't see certain kinds of images.

And many other controversies about their 'curated' approach.
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Anonymous Coward, 12 Feb 2014 @ 11:15am

Re: Re: Re: Artists controlling the use of thier work
They try to control pretty much everything else.
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Anonymous Coward, 12 Feb 2014 @ 11:19am

Once licensed, artist have never had a say in who can use their music or not.

Watch the next election if you don't believe that. It goes on every election season some politician is using some band's song who doesn't like what the politician stands for.

So the idea that artists have control over who uses their music is a total BS smoke screen.
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nospacesorspecialcharacters (profile), 12 Feb 2014 @ 11:20am

No derivative comments please...
One wonders why Disney, amongst others, are not strongly objecting to this? Why, almost their entire catalogue of movies would be wiped out if it was applied retrospectively!

And then there's other movies...

Batman might never have begun!
No home to go back to for Dorothy and Toto!
Brewster would never have got to spend his millions!
No one watches the Watchmen!
No outer limits, no twilight zone to get lost in!

YouTube would probably be reduced to about 10 users. We'd lose the excellent Cinema Sins and Screen Junkies for a start...

and what about music?

Stevie Wonder - no Happy Birthdays to you!
Ray Charles wouldn't have a woman!
Lynyrd Skynyrd wouldn't have found Alabama so sweet!
Vanilla Ice might have been plain old Vanilla!
Beach Boys - No surfing for you!

But I suppose one consolation is that 50 Shades of Grey wouldn't exist.
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crade (profile), 12 Feb 2014 @ 11:23am

Re: Re: Re: Potential problem
those with muscle don't do things based on principle. It's pretty hard to crowdsource when your target is "untold millions"
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jameshogg (profile), 12 Feb 2014 @ 11:53am

This is once again the fallacy of defamation.
Defamation is something that can be answered on its own terms, without the need for copyright. And it is rather simple: include "official" and "unofficial" labelling/signatures on works in a way that is similar to trademarks. The best use of a trademark is defining what is "approved" by a person or business, so they can work just fine here. That way, if people end up listening to some abysmal AMV with Aerosmith music cut up into horrendous pieces and distorted something awful, and that AMV were to have the "unofficial copy of Aerosmith" signature on it, if such an audience goes away thinking that Aerosmith genuinely sounds as horrible as that, that's the audience's problem. No copyright can save artists from audience stupidity like this.

Let me give you an example of why you cannot stop the stupidity. It does not matter how beautifully George Orwell wrote Animal Farm as a means of showing the utopian nature of communism, and crucially it does not matter how Orwell wanted to be seen or heard upon releasing this book: we still got idiots yelling the straw-man that he was an apologist for fascism because he attacked communism. They did not have to infringe on a single copyright to portray Orwell as a crackpot. And hence, that is how his book was treated (and even censored) for a while.

The speech is enough to distort how an artist is "seen by the public", not remixes. If speech cannot do anything to change what an artist actually said in his works, then neither can remixes.

But nobody is dumb enough to suggest that because people might, just MIGHT, go off with an image of their music "sucking so much ass" that they will therefore not make that music.

The better question is this: can anybody name ONE artist who has NOT had the fear of being seen as low quality? Or a fear of simply being perceived in a way in which he would not favour?

And did the punk movement not teach us ANYTHING? Nobody gives a fuck what others think in the end! And people especially do not give a fuck if money and/or moral duty is involved in expressing themselves. In the end, the original works always come through.

Stupid fallacy. I take it we must now also shut down deviantArt for all the horrendous (profitable for deviantArt!) My Little Pony mutations that occur there, or fan-fiction sites in case a mediocre Twilight fan-fic suddenly branches off to become 50 Shades Of Grey after having all the Twilight content removed from it? (you'd have to ban fan-fics even on a non-commercial level on that basis, in case its popularity allows the author of the fan-fic to suddenly change character names and make millions overnight - profound "infringement" without actually infringing, such is the absurdity of copyright philosophy).

People who claim this fallacy also must in turn make the extraordinary claim that internet memes must be stopped if the memes mash up their music in a way they do not approve of. Some of these memes can spread everywhere around the internet within a few hours. Good luck with that.
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Anonymous Coward, 12 Feb 2014 @ 11:55am

Re: Re: Re: Re: Potential problem
But artists often do. And crowd sourcing can be used to give an artist willing already willing to do something based on principle the muscle to accomplish the goal.
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jameshogg (profile), 12 Feb 2014 @ 11:57am

Re: This is once again the fallacy of defamation.
You just have to imagine the sight of a politician making such similar fallacies against newspaper cartoonists to see how absurd this whole thought process is.
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Zem, 12 Feb 2014 @ 12:43pm

What do you expect when you throw dollars at someone and let them call themselves an "artist".

The vast majority of popular music is nothing more than entertainment, just like have a good stretch and scratching your back in the morning.

Now, if they earned a normal wage, and were called musicians, they wouldn't be getting these crazy ideas.

And now for the executive summary.

IT'S NOT ART YOU IDIOT
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Anonymous Coward, 12 Feb 2014 @ 1:06pm

Re: Potential problem
I think your are correct in worrying, such a license is a big step towards all creative people having to buy a license to publish new material. The legacy gatekeepers would have a reason to recognize all works as being derivatives, and therefore requiring the creator to purchase a license before publishing a work. It would give them a means of gaining an income from those who choose to self publish.
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eric, 12 Feb 2014 @ 1:36pm

run dmc + nirvana
run dmc is a nice one,; aerosmith was very dead until those adidas sneakers came along. on the other hand i understand artists who will have to endure the horror of a cheap commercial house version of their art. nirvana's smells like teen spirit was trashed this way. those responsible for that should be shot, not licensed.
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Anonymous Coward, 12 Feb 2014 @ 2:11pm

Re: run dmc + nirvana
Not shot. Ignored. Bad art, whether it borrows from good art or not gets ignored.
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Just Sayin', 12 Feb 2014 @ 4:17pm

only?
"An unlicensed remix can still do all these things. The only difference is that the original artist goes unpaid."

You forget that the creator of an unlicensed remix also would risk lawsuits, financial ruin, and so on... oh I know, details...
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Karl (profile), 12 Feb 2014 @ 5:08pm

Re:
if the purpose of the remix is to comment on the original artist's stated political views through parody, not only can they not stop it but that expression is explicitly protected by the 1st amendment and fair use.

This is a point that bears repeating.

When these artists say that "an artist should be able to turn down uses in connection with messages that the artist finds objectionable," they are explicitly endorsing censorship through copyright. They are granting or withholding permission, not out of any attempt to protect against infringement or protect against fiduciary exploitation, but solely because they disagree with the remixer's message.

In First Amendment terminology, this is called a content-based restriction on speech. It is one of the worst offenses against free speech that can be made. And if the government is allowing or endorsing the use of copyright in this manner, then it is unconstitutional.

Furthermore, keep in mind that by the time a work is published, the copyright holder is almost always not the artist, but the publisher (I include studios and labels as "publishers"). They are the ones that get to decide whether others can have a license for remixes, according to what they find "objectionable."

So, for example, an artist on Sony can have his music held back from any remix artist who doesn't endorse Sony products, or even just endorses a competitor's products. They could have their music withheld from any remix artist who signed the anti-SOPA petition, or even who held political views that were at odds with a candidate that Sony endorses. And the artist would have absolutely no say in the matter whatsoever.

Is this really what Tyler, Henley, and the others really want? Because it's exactly what they're endorsing.
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Donglebert the Needlessly Obtuse, 13 Feb 2014 @ 1:00am

Walk This Way
Anyone would have thought from this letter that a remix never helped Steve Tyler's career at all.
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btrussell (profile), 13 Feb 2014 @ 1:33am

I have to agree with them. I would hate for a rock classic such as say, walk this way, to be remixed into some irritating rap song. My only rider would be: "Leave it up to the fans!" What is a song worth without fans? Exactly! So it is the fans that make it valuable, it is the fans that decide if the remix is acceptable and valuable as well.
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Woadan (profile), 13 Feb 2014 @ 1:38am

"In a letter signed by Steven Tyler of Aerosmith and music attorney Dina LaPolt (and echoed by like minded artists like Don Henley, Joe Walsh, Sting..."

This is theater of the absurd. None of these artists have had any release of note in this millennium.

I would like to invite them all, in the immortal words of Barnabus Collins, to repeatedly press their lips upon my posterior.
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Pragmatic, 13 Feb 2014 @ 3:15am

Re: Re: Artists controlling the use of thier work
A sense of entitlement a mile wide?

This is what happens when you attach notions of property to cultural artifacts and ideas. And that's why it's wrong, friends and neighbors!
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Pragmatic, 13 Feb 2014 @ 3:18am

Re: This is once again the fallacy of defamation.
Orwell got hammered by both sides; commies called his work "dripping with poison" and the right wingers weren't fond of him either. That's always been the case as far as I know. Where did the "fascist apologist" stuff come from?
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Anonymous Coward, 13 Feb 2014 @ 4:07am

Re: Re:
What is amazing is the statement didn't come from Tyler or Henley but rather an attorney who should know better.
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John Fenderson (profile), 13 Feb 2014 @ 12:46pm

Re:
Not to mention, taking this stance is saying that one of the purposes of copyright law is to confer some kind of moral right to the artist. In the US, this is absolutely, positively not the case, nor should it be.
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Leigh Beadon (profile), 16 Feb 2014 @ 10:24am

Re: Re: Potential problem
Actually, availability of a license is one of the factors of fair use -- so not only would this make artists less likely to attempt that defence, it would actually weaken their position if they did
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Anonymous Coward, 16 Feb 2014 @ 10:08pm

Re:
Only if the original artist decides to be an ass like you.
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heidi8 (profile), 26 Feb 2014 @ 1:57pm

Anyone remember Steven Tyler in the Sgt. Pepper movie?
It's a little ironic to be lectured on the importance of artists having control over their works throughout the period of copyright by someone whose band covered a Beatles song in the oft-reviled movie Sergeant Pepper's Lonely Heart's Club Band.
Mr Tyler can complain all he wants about how horrible it would be for his Dream On to be sung over a scene that "denigrates women" (page 7 of his letter) but he performed The Beatles' "Come Together" without John Lennon's consent, next to a woman tied to a dollar sign; later in the sequence she falls to her death. Disingenuous, Mr. Tyler. Almost hypocritical.
More thoughts - lawyerly ones - at fyeahcopyright.tumblr.com
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