Company Wants To Nickel And Dime Every Single Music Mashup

from the searching-for-pennies-in-the-couch-cushions dept

Wed, Mar 18th 2015 4:11am — Mike Masnick

With the record labels desperate for any new source of revenue, they've been increasingly trying all sorts of convoluted plans to try to find "untapped" sources of revenue. Apparently mixtapes and mashups are next on the list. As you're hopefully aware, mashups have become a big deal in the world of music and remixes of various songs have become popular in interesting ways. Artists like Girl Talk and DJ Earworm have become incredibly popular. In the past, we've discussed how these kinds of remixes and mashups are almost certainly fair use, but things are tricky in the world of music samples, because of some totally screwed up court rulings. You have crazy rulings on the books like Bridgeport Music v. Dimension Films where the judge not only quoted the Ten Commandments as an authority (no, really), but also announced "get a license or do not sample," because he didn't even want to think about the concept of fair use.

This has created something of a problem for new music services, such as Spotify, Pandora and the like, where they often will not offer remixes and mashups, even when they're super popular. The problem for those services -- which do pay for licenses -- is often "who to pay?" on those songs. The answer should be that it's fair use and quite frequently acts as promotion for the original works, so it will help get those original songs more plays and licensing revenue that way. But no one wants to take the legal risk.

So, instead, it looks like we may end up with a completely bogus licensing regime that isn't required because of fair use -- but is going to happen, because everyone's scared to make the fair use argument. The WSJ has an article on a company that is jumping into the space, called Dubset Media, that has come up with its own system to analyze mashups and remixes to figure out how much of a song they use and then pay out royalties based on that amount:

Dubset Chief Executive Bob Barbiere estimated that online music mixes could eventually generate $1.2 billion a year in additional revenue for the industry. Currently all the big subscription music services “deal with same library, but now you’re dealing with a whole new world of content that could help drive new subscription,” he said.

Dubset spent the past several years creating its “MixScan” technology to analyze DJ mixes, which it hosts on a small music-streaming service it operates called Thefuture.fm.

Before posting music on the site, Dubset analyzes it, measuring how many seconds each individual song is heard and logging the data into its library. It then pays royalties based on the number of times users listen to a given mix, along with the length of time each song was featured in the mix.

As the article notes, Dubset has actually been around for quite some time. I've spoken to some of the founders before, and actually thought some of what they were doing was interesting in putting together a platform for these kinds of mashups and remixes. But the latest move to work with the major labels to then try to license these works to other platforms has me worried about what it may mean in the long run for this art form.

The article itself seems weirdly devoid of any discussion on the actual copyright implications of this. It doesn't mention copyright or fair use at all. It's not even clear how Dubset Media determines the royalties, though apparently it's negotiating with the major record labels on some sort of deal. Perhaps those record labels will agree, because this is money from nowhere -- in fact, it appears to be the potential of money out of fair use, where no money needs to be paid.

And that likely means that once the labels start getting a sense that there is some money to be made in licensing remixes and mashups, they're going to want more money from remixes and mashups -- because that's how the major labels always act. And that's likely going to mean a pretty big crackdown on the way most remixes and mashups are made and distributed, because the labels are going to want cold hard cash for each one. Remixes and mashups started as an amateur pursuit -- a fun thing to do, or a way to show off some skills. And while there certainly are plenty of professionals now doing it, you can bet that the labels are going to try to lock up and monetize all of it.

There's an excellent documentary, called Copyright Criminals, that tells the story about the early days of hip hop, in which most people considered it perfectly legal (or just didn't care) to sample others' music to make hip hop songs. And then people started getting sued, and the whole nature of sampling changed. When you had to pay for every sample, suddenly sampling was crazy expensive. So much so that some of the most creative hip hop albums of all time, like De La Soul's 3 Feet High and Rising and the Beastie Boys' Paul's Boutique could not be legally made today.

The only barely underground community of mashups and remixers brought that world back, at least partially, allowing us to see the kind of amazing creativity and music that could have been created if only the law allowed it. People weren't suing over it for a variety of reasons -- including the fear of a potential legal loss that reinforced the fair use argument -- but also because it really was just a side thing. But this move, to try to start licensing it all, regardless of the fair use question, seems likely to create another shift in remixes and mashups -- one where major labels eagerly searching for coins in the couch cushions, suddenly make it nearly impossible for anyone without a big bank account to take part in this art form.

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Filed Under: copyright, dj mixes, fair use, mashups, remixes
Companies: dubset media, thefuture.fm

37 Comments

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Ninja (profile), 18 Mar 2015 @ 4:28am

one where major labels eagerly searching for coins in the couch cushions, suddenly make it nearly impossible for anyone without a big bank account to take part in this art form

For the artists! The children! - The MAFIAA

Every time I see one of those morons talk about compensating the artists, preserving culture etc something inside me would love to punch them till there's no teeth left.
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Anonymous Coward, 18 Mar 2015 @ 4:32am

"It doesn't mention copyright of fair use at all."

(Unless you meant to say "or" ... )

Regarding "copyright of fair use" ... Is an (unique) assemblage of 'fair-use' material even copyrightable? And if so, does copyrightability require a certain percentage of original material? In that case, how does anyone draw the line between fair use and copyright?
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Anonymous Coward, 18 Mar 2015 @ 4:48am

The major labels are the only ones who should make money from music, and all artists are their slaves..
/sarc
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Anonymous Coward, 18 Mar 2015 @ 5:01am

The next (il)logical step (backwards) would be to ban/fee-lock certain genres, instruments, and even notes.
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Phil, 18 Mar 2015 @ 5:56am

If these mashup "artists" are so talented, surely they will have no trouble creating their own original songs, instead of piggybacking on the work of actual creators.

One thing I consistently notice about this blog is the very lowbrow appreciation of music, and I'm sure that lack of taste informs the biased opinions against actual creators often expressed here. If you can't value good music because you can't hear the difference, of course you will have no trouble with people profiteering off the backs of actual creators.
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Mike Masnick (profile), 18 Mar 2015 @ 6:12am

Re:
If these mashup "artists" are so talented, surely they will have no trouble creating their own original songs, instead of piggybacking on the work of actual creators.

If those musicians are so talented, surely they will have no trouble building their own instruments, instead of piggybacking on the work of actual creators.

One thing I consistently notice about this blog is the very lowbrow appreciation of music, and I'm sure that lack of taste informs the biased opinions against actual creators often expressed here. If you can't value good music because you can't hear the difference, of course you will have no trouble with people profiteering off the backs of actual creators.

Interesting. Based on your theories, nearly all of modern music is "lowbrow." Do you consider Bob Dylan lowbrow? The Beatles? Led Zeppelin? Elvis? Michael Jackson? Almost all of the most successful artists are somewhat famous for building off the works of those before them.

I find it amazing how many people, like yourself, pretend that you are supporting artists when, really, you are dismissing the value of nearly all artists.

I'm curious. Do you think this is "low brow" and that this guy should just "create his own" works instead of what he did here:

http://thru-you.com/#/intro/
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Anonymous Coward, 18 Mar 2015 @ 6:30am

Re:
Back already, phil? How's googlypants? Still licking Lowery's shoes?
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PaulT (profile), 18 Mar 2015 @ 7:13am

Re:
"If these mashup "artists" are so talented, surely they will have no trouble creating their own original songs, instead of piggybacking on the work of actual creators."

Yep, like all those artists who created work from whole cloth all on their own and never copied, borrowed, covered, imitated or otherwise utilised work by other people to create something new.

Wait... which artists are those again?

"One thing I consistently notice about this blog is the very lowbrow appreciation of music"

One thing I consistently notice about people who attack this blog is the lack of understanding that music is a highly subjective artform. Name your favoured kind of music, and I'll find someone who thinks its worthless on an artistic level.

"I'm sure that lack of taste informs the biased opinions against actual creators often expressed here"

Which opinions against actual creators? The ones where people dare to believe they should honour copyright as it was when they recorded and not expect to retire from a single piece of work they did decades ago? Or something more substantial?
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Anonymous Coward, 18 Mar 2015 @ 7:59am

Re: Re: Don't worry! It's only Masnick's imagination.
First is Masnick's typical self-contradiction: "often will not offer remixes and mashups, even when they're super popular". -- So what's the problem if already "popular"? -- Except that Spotify and "new music" services don't get money off those too?

Now look at how Masnick hedges: "looks like we may end up" ... "has me worried about what it may mean" ... "It's not even clear" ... "apparently" ... "that likely means" -- Just more of Masnick making up stuff and claiming it's a crisis.
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Roger Strong (profile), 18 Mar 2015 @ 8:06am

Re:
Wikipedia: Beethoven and Mozart: Influence of Mozart on Beethoven

> For example, Beethoven copied a passage from Mozart's 40th Symphony into the sketchbook he was using when he composed his Fifth Symphony, the third movement of which opens with a theme similar to one from the Mozart.

Other examples are given of Ludwig van Beethoven being, as you say, a mashup "artist." Works by Chopin, Tchaikovsky and others have been based on the themes in Mozart's music.

Many people greatly appreciate Beethoven's contribution, regardless of whether you dismiss such mashups as a "lowbrow appreciation of music" or dismiss them as "profiteering off the backs of actual creators." We appreciate that it was not - at the time - criminalized.
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jupiterkansas (profile), 18 Mar 2015 @ 8:07am

Re:
and you have no clue how music is created, or why.
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Anonymous Coward, 18 Mar 2015 @ 8:09am

Re: Re: Re:
out_of_the_blue just hates it when due process is enforced.
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PaulT (profile), 18 Mar 2015 @ 8:13am

Re: Re: Re: Don't worry! It's only Masnick's imagination.
You're free top refute any of the points with counterpoints, especially backed with evidence.

But instead, you whine and misdirect. Typical.
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John Fenderson (profile), 18 Mar 2015 @ 8:26am

Re: Re: Re: Re: Don't worry! It's only Masnick's imagination.
I can always tell when Techdirt is hitting the mark, because trolls come out of the woodwork with personal attacks and vitriol rather expressing actual points or arguments.
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jupiterkansas (profile), 18 Mar 2015 @ 8:43am

Re: Re: Re: Re: Re: Don't worry! It's only Masnick's imagination.
who knew sampling was so evil?
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Anonymous Coward, 18 Mar 2015 @ 8:52am

Re: Re:
nanos gigantum humeris insidentes
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John Fenderson (profile), 18 Mar 2015 @ 10:16am

This could make it more difficult
Since I'm one of those who tries to avoid giving any money at all to major music companies, I have to avoid music that takes part in this sort of licensing scheme as well.

However, I'm afraid that it will be hard to determine when this is the case...
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Phil, 18 Mar 2015 @ 10:20am

Re: Re:
"If those musicians are so talented, surely they will have no trouble building their own instruments, instead of piggybacking on the work of actual creators."

Absurd false equivalency. A musical instrument is not music. You do no credit to your position with such absurd departures from reason.

Again I ask, if these "mashup" artists are actually talented, why can they not create their own songs instead of piggybacking on existing material? Surely if what they are doing is so special, they would be able to do it and find success without relying on directly lifting from the work of other artists.

I repeat my contention that the real problem here is the blog author's failure to appreciate what actually goes into the creation of original music, and an aesthetic poverty that renders him unable to appreciate the difference between reworks of original material vs the creation of actual original material.

Here's a simple test- if you take away everything from a "mashup" that's lifted directly from someone else's work, are you left with something of creative value?

And no, sampling, copying, and "maships" are not equivalent to the interplay between serious composers, nor are they equivalent to stylistic borrowing between modern pop groups. You can't hold that opinion and simultaneously hold an appreciation for what actually goes into creating original works of music- to express such an opinion is to express your ignorance of the creative act of composing and songwriting. That's why you find yourself on the wrong side of copyright law- not because of some gross injustice of design, but because of your ignorance of the creative process and your general aesthetic poverty.
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Phil, 18 Mar 2015 @ 10:21am

Re: Re:
I'm not who you think I am, and I have no idea what you're talking about. Believe it or not Phil is a pretty common name.
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Phil, 18 Mar 2015 @ 10:24am

Re: Re:
"I'm curious. Do you think this is "low brow" and that this guy should just "create his own" works instead of what he did here:

http://thru-you.com/#/intro/"

It's pure crap. It just reinforces my belief that you have terrible taste in music and little appreciation for actual creativity.
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Phil, 18 Mar 2015 @ 10:28am

Re: Re:
You don't seem to get the difference between the intellectual interplay between creative people and wholesale copying of a performance. They are not equivalent, and that's why law does not treat them as being equivalent.
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Phil, 18 Mar 2015 @ 10:30am

Re: Re:
Find me a single example of Beethoven lifting a performance of Mozart and dropping it into one of his pieces.

The kind of gross ignorance of musical composition that you express here is exactly what I'm talking about... musically illiterate people trying to lecture us about how our work should be valued. It's pathetic.
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jupiterkansas (profile), 18 Mar 2015 @ 10:43am

Re: Re: Re:
Bartok samples from Shostakovich and it's called "interplay between serious composers" but someone does the same thing on a computer and it's the end of creativity as we know it.

The creativity is in the mashup. Yes, the linked video is made of individual pieces the video maker didn't create, but the final song never existed without the video maker putting it all together. It just reinforces my believe that you have narrow tastes in music and little appreciation for anything that challenges your preconceptions.

Get off your high horse and realize that there's more to creativity in this world than what you happen to like or accept. All you're arguing is that the only way to create music is the way it's always been done (or more specifically the way it's always been done professionally). There's so much more to art than that.
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That One Guy (profile), 18 Mar 2015 @ 10:46am

Re: Re: Re:
Well, it's a good thing we've got the Lord and High Master of Musical Taste here to tell us what good music is, and therefor what should and should not count.

And here I was thinking that musical tastes were subjective, and differed from person to person, clearly I was wrong, and your taste in music is all that matters.
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jupiterkansas (profile), 18 Mar 2015 @ 10:47am

Re: Re: Re:
Classical music is filled with "Variations on a theme by..." but I guess you wouldn't consider that remixing, would you? That's just "the interplay of serious composers."
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jupiterkansas (profile), 18 Mar 2015 @ 2:11pm

Re: Re: Re:
Here's the exact same type of creative sampling, except he's using a video of his environment rather than videos he finds on the internet.

But I suppose you don't consider either one an actual creative act.
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Anonymous Coward, 18 Mar 2015 @ 5:44pm

Re: Re: Re:
Don't flatter yourself. Anyone who does a search of this site when Lowery decided to throw a shit fit can find where you posted the same rabid defenses of a codger who can't stand the idea of not pandering to major labels. Same name, same writing style. Same jackass thinking it's intelligent to post from different IP addresses, threatening to sue everyone with their "sleeping giant" artist friends - years after the first stones were thrown. What a joke.
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PaulT (profile), 19 Mar 2015 @ 1:37am

Re: Re: Re:
"Surely if what they are doing is so special, they would be able to do it and find success without relying on directly lifting from the work of other artists."

So, you're saying that people who start their careers with cover songs or otherwise imitating other artists are worthless and untalented? Are you sure that's a road you want to go down?

The rest is "stop liking what I don't like!" bullshit of the highest order.
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PaulT (profile), 19 Mar 2015 @ 1:39am

Re: Re: Re:
"It's pure crap"

Subjective arguments *are* fun, aren't they? Unfortunately, your opinion is not fact, no matter how much you believe it or what you cherry pick to "prove" it.
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John Fenderson (profile), 19 Mar 2015 @ 8:19am

Re: Re: Re: Re: Re: Re: Don't worry! It's only Masnick's imagination.
Yeah, the outrage about sampling has always completely baffled me. Sampling is nothing more or less than a form of collage. People who say that sampling is unethical are saying that an entire form of art shouldn't exist.
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Mike Masnick (profile), 19 Mar 2015 @ 9:54am

Re: Re: Re:
It's pure crap

Your subjective taste in music is meaningless. Lots of people seem to like it quite a bit.

Do you also think Paul's Boutique and 3 Feet High and Rising are "pure crap"? Because an awful lot of people disagree with you, yet both of those rely heavily on sampling others works.
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Anonymous Coward, 19 Mar 2015 @ 5:43pm

Re: Re: Re:
"It doesn't count because I SAY SO! *foot stamp, balled fists, lip quiver*"
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Chris in Utah (profile), 19 Mar 2015 @ 6:03pm

The last say to every copyright debate I'm ever in.

When you restrict something that is free, aka culture you restrict freedom and culture. Simple. You support beings not rights.

Oh and btw, I feed myself doing this:

I make use of entire songs in sets interlaced with samples to create a message not otherwise heard. Do I need permission to speak? No.

Nameste.
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LAB (profile), 21 Mar 2015 @ 7:58am

Re: Re:
There is no doubt that Kutiman is incredibly creative and the work would definitively lean more towards fair use as very small parts of the original sources were used to create a new work. However, there are many mashups or remixes that use the entire vocal track of one song over the instrumental of another. In this context I can understand and support the licensing aspect. The court has defined a sample as requiring licensing in that it is the exact performance that is used. It is not similar, it is a copy. In addition, an argument (although weak) could be made that the mashup or remix is depriving the original creator to commercially exploit the work in the same manner.
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LAB (profile), 21 Mar 2015 @ 8:00am

Re: Re: Re:
See:(Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992).)
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James Wolfe, 22 Mar 2015 @ 11:51am

Sounds great until this part:
"You must not upload, display, send, transmit or otherwise make available any music or other Content in which you do not have the appropriate rights to do so. Unauthorized copying, distribution, modification, display, public performance or other unauthorized use of copyrighted works by you may constitute an infringement of the copyright holders' rights and may result in civil litigation and criminal prosecution."

If the sole purpose of this Future FM is to get people to upload new mashups and remixes so they can generate revenue for themselves and forward some if it on to you and the copyright owners they place all the legality on you the person creating the mix. If you don't get prior authorization for each and every piece of your mix the full weight of the law is upon you, not them. They use this magical technology to identify which pieces and how much belongs to who so they can rightly compensate the them but screw you if you don't get permission to use those pieces. So for us, what's the purpose of this? What's the benefit? How does this make me want to use it? It doesn't. I don't do this for money. I don't have lawyers to make phone calls all day and write legal requests and contracts with record companies for permissions to use their content for something I don't plan on making any money from. The only service I know of that doesn't require you to jump through all these hoops is Mixcloud and that's who I use. They have ads on their site that compensate the copyright users. I just have to make sure to list all the artists in the songs I upload. How could that be any simpler? If they come up with a system like that that also pays me a dividend I might be interested. But screw this.
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jr160 (profile), 20 Apr 2015 @ 3:59pm

Effect on other streaming sites
So will Spotify, Pandora, Soundcloud, etc. have to start paying royalties for mixes/mashups to Dubset Media (or thefuture.fm), who will then forward on to the record labels? I'm curious to how this works, and how it's going to alter the industry.

I'm all for artists and labels getting their rightful dues and fees, but agree that mixes are what they are, mainly a form of expression primarily done by amateurs to showcase their potential talents.
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