Don’t Fake It: Copyright and the Mixtape

The copyright message that came stamped on every piece of vinyl I ever bought is a bit harder to find on mp3’s, although it’s still there. It’s just hiding. The intrepid shopper can find it on the “Terms and Conditions” page on Beatport (Item 16, “Limitations of Content Usage and Copyright”), but in the course of doing 35 In Deep podcasts I can’t say I’ve thought about it a great deal. For a reminder I delved into a box of old vinyl and randomly pulled out a record. Fittingly, out came the classic “Don’t Fake It” by Crime (Nuphonic records). In tiny writing around the outside of the label it says: “Unauthorised public performance, broadcasting and copying of this record prohibited. Copyright of this record is owned by Nuphonic Records, London”. So recording deep house podcasts and sharing them on the internet is illegal then, unless you have the copyright owner’s permission. Ahem.

What got me thinking about this again was an interview conducted by Ben Watt, “How much is music worth?”, which I came across recently via the Darkfloor forums. Ben Watt talked to Robert Levine about copyright, online piracy, and the value of music and creativity. The question that especially interested me was this one:

The last few years has seen a boom in free podcasts and mixtapes where no permission has been sought from the creators of the tracks used. Blogs love them because they increase traffic (and in some cases ad revenue). Fans love them because they find hidden gems and are great for the iPod. The DJ loves making them because they bring acclaim, profile and more bookings. The labels and artist are caught in two minds; good promotion or cannibalisation of sales? What are your feelings on the pros and cons here?

This question cuts to the heart of what I get up to as a hobbyist DJ. I DJ a bit, record my own mixes and share them on the internet, and write about music sometimes. I buy the music I play from sites like Beatport, Juno, Boomkat and so on, and make little, if any, money out of my activities – All the mixes and podcasts I record get released free of charge. I guess what I do is similar to the vast majority of DJs out there, for whom DJing is not a career. There are thousands of people doing the same thing every week. We used to be called “bedroom DJs” but I think that phrase has fallen out of vogue, and anyway there might be the occasional excursion out the the bedroom and into a bar or a basement. The difference now is that the internet has made sharing home-made mixes very easy. International audiences can be found on Mixcloud or Soundcloud, as opposed to a dozen friends who listened to your tape a few times in the car before the stereo ate it.

Ben Watt’s question suggests that artists and labels are suffering as a result of the “boom in free podcasts” of the last few years. By sharing my mixes online for free, am I really doing any harm? Also, given the drive towards legislation like SOPA and ACTA, the copyright message that seemed invisible on digital music is suddenly asserting itself. A fight back against digital piracy is taking place. For instance, podcasts and mixes are routinely being taken down from Soundcloud whenever songs belonging to major labels are detected. With respect to the music I like to play, which tends to be a bit more underground than major label fare, what do the artists think about their music appearing on mixtapes? I thought it would be a good idea to ask, so I went through the tracklist of an upcoming podcast and got in touch with all the artists to see if it was okay to include their music. I wasn’t sure what the response would be. In fact, being a total nobody, I expected to be ignored, but over half of the twenty artists actually got back in touch. More about that later. Much of Ben’s interview is about piracy so I thought I’d weigh in with a few words on the subject too.

Music piracy

If an artist has put a price on a piece of music they’ve made that means you can’t have it for free, so it’s a matter of respect to go and buy it instead of downloading it from a filesharing site. There is no justification for stealing music from small, independent labels and artists. There are plenty of convenient and legal ways to get hold of the same music, such as iTunes and Beatport, or even Bandcamp if the artist is selling independently. Respect the wishes of the artist and give them your support, not just by saying “dope tune man, love it” to anything that beeps on Soundcloud, but by going to your favourite music store and carefully choosing music you like and buying it. Be picky – ignore the shit, and buy the good. Quality not quantity:

i believe music should be free because even a $1 a song is pretty rediculous … winamp is telling me i have 17000 items, so that’s $17,000, do you think average kids like myself who have to work their ass off all day just to pay for school each month would be able to have a luxury such as music in their lives if it weren’t free? (Konrad via Facebook)

Gotta fill that iPod. Gotta fill that hard drive. The vast storage capacity of modern gadgets, all that empty space just begging to be filled, seems to have changed music collection into a process of accumulation rather than curation.  The luxury is not the music itself, but the abundance of it – not even caring what you get as long as you can have lots. Feeding into this self-appointed right to luxury is the sheer amount of new music these days. It’s easier than ever to set up a record label and release music. Whole new genres like “minimal”, “minitech” and “mashup” have come along to accomodate the masses of new producers that suddenly found they could be creative with a cracked copy of Fruity Loops. Complicit in this wave of shit are the hoardes of file-sharers and downloaders who have given this music far more reach than it deserves, and more importantly by not supporting genuinely creative and interesting artists by buying their music. I can’t repeat this often enough:

The problem with techno is that somewhere along the way, forward thinking musicians were replaced by computer nerds on ecstacy.
(Dustin Zahn via Twitter)

Be selective, buy good music, ignore the crap. Bring back foward thinking musicians! If I had the chance to meet the artists I really admire and say how much I love their music, could I really look them in the eye knowing that I’d stolen all their music and not paid for it? Personally the answer is no. That would be lousy. I’d rather shake their hand knowing I’d done a little to support them.

But what about old, back catalog stuff that isn’t available any more? Are there situations where we can make exceptions?

I’d love to see more music busted out of obscure back catalogues that is no longer in circulation (for instance old disco and italo). Is it wrong to download ripped copies of long deleted records that are simply not available any other way? Of course it’s wrong – The copyright notice on those records says it is. But I’d argue it’s a lesser wrong, unless the artist has specifically said they don’t want that work to be available any more. In the days before music blogs and file sharing, those long deleted records would be subject to the economics of scarcity, leading to ludicrous, over inflated prices that benefitted record collectors but did nothing for the artists or the fans. At least that music has an opportunity to find a wide audience now. The premium value of the original 12″ still exists, for collectors, but the economic bubble that kept that music out of the hands of the general public has collapsed. Some of these long deleted titles have been re-released, such as Casco’s “Cybernetic Love” (1983) which came to light again on Radius Records. My dream would be to see a Gutenberg Project for all these old releases – Make them available digitally and legally for sale (I’ll let someone else worry about the details of how that might happen).

Mixtapes and podcasts

Copyright exists so that the owner of an original piece of work, such as a poem or a song, can retain exclusive rights to it: the right to make and sell copies, the right to perform it in public, and the right to broadcast it. As soon as the original work is transferred to a tangible form, such as a drawing or computer file, its creator holds copyright over it. Sometimes the copyright is sold or given to someone else, like a record label, and usually the copyright expires after a certain amount of time, such as 50 years after the death of the artist. So it doesn’t make a difference whether someone makes mixtapes to give away for free or to sell. Permission is needed from the copyright holder before any kind of copying or sharing can take place.

Except, we’re talking about dance music right? In Deep is a deep house podcast. Dance music is made to be played out, it’s made for communal listening, it’s made for mixing. There’s a long tradition of DJs making mixtapes and sharing them. Of course, just because something is traditional doesn’t make it right, but artists must know that the work they release into the world of dance music will (if it’s any good) be shared this way. It’s part of dance music culture. Mainstream rock and pop is different. Of course Katy Perry and Kanye West don’t want their music to end up on someone else’s podcast. They already have a huge market for their albums. It’s a different culture, based around the album, with no need for DJs to act as intermediary between artist and audience. The market for most deep house, techno or electro is the DJ though. It’s the DJ that buys most of the music, and the general audience usually hears it by way of mixtapes, radio shows, and in clubs. The audience for dance music is potentially huge, but the market is small. How many non-DJs trawl through the hundreds of new deep house and techno releases on Beatport every week?

The lingering role of the DJ as curator and middleman owes a lot to that evergreen format, the 12 inch single. The 12 inch was invented for the DJ so tracks could be longer and louder. Print runs were small, and it was expensive. It wasn’t a format aimed at a mass market, but for a long time this was the predominant way that dance music was released. As a result, DJs became central to the spread of dance music. There’s probably no reason things should stay this way. The digital format is accessible and relatively cheap, artists can spread the word about their music through social networks, and digital tracks can be dropped into a playlist with no need for a DJ to create a mix first. Last.fm, Spotify and even iTunes can be your DJ. However, the way it stands now, DJs remain central to dance music culture and are still the main market for dance music.

The implication is that mixtapes and podcasts are not taking away sales from dance music artists, because the general audience wouldn’t be buying that music anyway. If other DJs hear music they like on a podcast, they’ll be the ones buying it so they can play it (that’s what I often end up doing). If that copyright message was to be enacted 100% what sort of audience would dance music reach? It would be tiny compared to today, controlled by a limited number of outlets as opposed to the creative free-for-all we have now. Breaking the rules a bit is how a lot of dance music gets heard. So long as DJs are buying music, posting tracklists, and doing their bit to spread the word about the artists they like, I don’t see anything wrong with DJs making mixtapes to share.

But who am I to say? For the next In Deep I decided to find out what the artists had to say about it.

Permission to include the track…

In Deep #036 is a deep house and acid house podcast I recorded at the beginning of January. Most of the music was bought from Beatport or Junodownload, with the exception of the tracks by The Same Old Souls (unreleased promos given to me by the artist), and the classic Weekender track “Sunday Session” which I have on vinyl (so the mp3 played here is a rip). The full list of artists included in the mix is:

John Heckle, Perseus Traxx, Distortion, Roy Gilles, Petr Serkin, Be, 95 North, Alex Agore, Same Old Souls, Harley and Muscle, Freestyle Man (Sasse), Jace Syntax, Kerri Chandler, Vick Lavender, Weekender, Blakdoktor, Chris Simmonds, Jose Nunez, Naohito Uchiyama, Restless Soul

I’d been sitting on In Deep #036 for about a week when I read Ben Watt’s interview, and decided to see what would happen if I tried seeking the artists’s permission for all the music included on it. I made it clear I wasn’t going to be making any money out of the podcast, and that if I heard from anyone that they didn’t want their music to appear, then I wouldn’t release it. I also quoted Ben’s interview and asked if they had any thoughts on the issue. Facebook, Twitter and Soundcloud made it pretty easy to get in touch with people. I tried to find what looked like the most recent point of contact, although I didn’t hear anything back from 7 out of the 20 people I contacted. So if you need to get permission to include a song in a podcast, but can’t get in touch with anyone to do so, then what? Taking the copyright rules literally, I guess it means that song doesn’t get played any more.

However the response from the other 13 people was pretty quick, taking just a few days. Everyone seemed to appreciate being asked, and most people gave the thumbs up straightaway:

You can use these tracks of course. I think podcasts are very useful for promotion. I’m always happy to see my tracks in mixes.
(Petr Serkin)

Yeah man feel free to use it. I like people using my music in their mixes/podcasts. It tends to allow for more exposure for the music.
(John Heckle)

No problem – thanks for getting in touch though. People have been buying records and putting them on mixtapes for decades – podcasts do nothing to cause problems, its a mix of music. Giving away fresh material as mp3s is different. I make tracks for vinyl so if I give away an mp3 then it won’t get to vinyl as its no longer special. I don’t get any money from vinyl, and I don’t ever expect to – its about keeping something alive.
(Perseus Traxx)

One response was a question back to me: “Can you show us how your exposure will generate sales for our company.  Something we all need greatly.  Do you post your tracklist on Beatport?”. This is a fair point – The DJ gets the pleasure of playing the music and making the podcast and sharing it, so what can they offer the artists or labels in return? (Bearing in mind there is copyright infringement going on whenever podcasts are being recorded and shared. Buying music doesn’t confer the right to re-record it in podcasts and share it, so can DJs do anything to make up for this?). What can the DJ do to help drive sales? I don’t think DJs should have to function as marketing tools for all the artists and labels they enjoy playing, but it doesn’t take much effort to post tracklists and blog a few words about what’s good. A shout out and maybe a link to a favourite record store would obviously be appreciated. Rich of 95 North took a similar view, sending me the following response when asked about the classic “Get your mind together”:

.. technically I do not own the master; therefore, I wouldn’t really have a say in its use. However, if it were up to me, I would not have a problem with you using it in that manner. It is an old track, it is part of a mix and not a stand alone track, you are not selling the mix, and perhaps by hearing the track in your mix, someone may want to buy it (you never know. :-) They can get it from traxsource or itunes).

As far as any of our other tracks, it would be a case by case basis. For example, for our old and out of print items, I would have no problem with you using those at all. For items that can be found on traxsource, itunes, etc. then it would be cool if during your broadcast or in your write up you say something along the lines of “if you like what you heard, you can find it on xyz.com so please support the artists”.

For new tracks, such as the one I plan to release on Feb 7th on traxsource.com, I would not mind as long as:

1) you bought it first
2) you placed it in a mix so that it is not just a full on easy download for someone
3) you say something about the track (brand new from 95 North, etc. Buy it from traxsource)
4) you tell everyone you know that the track is available for purchase. :-)

The Ben Watt article you sent was very interesting. At the end of the day, we all need to come up with solution that meets in the middle between giving away music for free and choking off all podcasts/blogs/listening sites/etc.
(Richard Payton, 95 North Productions)

I followed this up with an email to Large Records, and heard back from president Jeff Craven with a final “ok”. He also made the point that if podcasts are aired through the right channels then the labels can collect royalties:

I appreciate your request for permission for usage in your podcast.  It is rare that someone will actually ask for permission. Ben Watt has some good points but actually misses something key:  We actually do get some income from your podcast if it is put through the normal channels- these are called digital performance royalties and companies like Sound Exchange collect on our behalf. By all means you have our permission to use the classic 95 North track.
(Jeff Craven, President, Large Records)

I’m not entirely sure what channels this refers to though. As far as I can tell Sound Exchange mainly collects from radio stations. So, sure, if you’ve recorded a mix for a radio station that pays its licensing fees, then when that mix gets played the labels can collect some royalties. Mixcloud is the obvious, legitimate option for DJ mixes and podcasts, as they are licensed by the PRS and the PPL. It’s a bit of a no-brainer really – Mixcloud is free, and the artists and labels will get paid every time their music is aired. I don’t know if the same goes for iTunes, as they don’t process tracklists for the podcasts that pass through them. Neither do Soundcloud, and of course if your mix is just available for download from a file-hosting site like Mediafire, then no-one’s getting any royalties!

So the final result was: permission from 12 of the 20 artists, no response from 7 people, and one “it should be okay, I’ll get back to you with a final answer” (then no further contact).

On the whole, then, there was no problem with In Deep #036. I have permission for most of the tracks to be part of the podcast, so if anything like SOPA or ACTA chases me down in future at least I can say did my best. In hindsight I should have contacted all the labels as well as the artists. As Rich from 95 North pointed out, he wasn’t the one with the masters any more (which I took to mean he was no longer the copyright holder), so he wasn’t in a position to grant permission. He pointed me to Large Records instead. Would any labels have taken a different position and opposedmy podcast? I hope not, but I welcome their views.

I’m not sure how this process of collecting permission would scale up though, if everyone had to do it every time. There are thousands of DJs making and sharing mixes every week – That would be a lot of emails for all the copyright holders to deal with! Maybe labels could pre-empt this and make a statement on their websites along the lines of “DJs are free to use our music in their podcasts, as long as no money is being made, the podcast is mixed so no individual tracks can be extracted, and a full tracklist is given”. That would cover the DJs back somewhat.

So, despite Ben’s question mark about the harm done by DJs circulating free mixes and podcasts, I feel re-assured that I’m not hurting anyone. I feel that a truce is in place: Artists and labels can overlook the endemic copyright violation, in return for DJs doing their bit to help support sales. Now that’s sorted, let’s enjoy the music.

Notes

1. I use the words “podcast” and “mixtape” pretty much interchangeably in this article. The only difference, for me, is that a podcast is a mixtape with nice cover art and a number in the top corner.

2. Alongside old and deleted titles, vinyl only releases are another candidate for piracy that it’s tempting to make excuses for. If you’re a digital only DJ and something’s only come out on vinyl, is it okay to download the rips? No, definitely not. Despite once being a vinyl junkie I’m in this exact situation now, and I find it frustrating. For instance, I would dearly love to get hold of the Mike Huckaby Reel to Reel edits of Sun Ra, but it’s only out on a limited 12″ from Kindred Spirits. I don’t buy vinyl any more because it’s way too expensive to get it shipped to New Zealand, and I don’t have my good old Technics for doing rips these days anyway.

It puzzles me why labels would hobble themselves by not releasing music in digital as well as physical formats. I understand that vinyl is a mark of prestige these days, because of the limited runs and production cost and as a mark of difference. But I don’t see why that means music fans can’t have a choice. Artist concerns about sound quality? Maybe, so release a wav. Worries about digital piracy or the effects on physical sales at record stores? I don’t think either add up – It’s still easy for one person to rip the vinyl and upload it. And digital editions won’t stop vinyl collectors from going to the store. Vinyl is still trendy.

There are some interesting issues surrounding the relationship between music and the format that carries it, a relationship which is analagous to epigenetics in biology. The genetic code stored in DNA carries all the vital traits of an organism, but as the organism grows those traits can be expressed differently depending on the environment during growth. The same musical DNA is carried by digital and vinyl, but they are different environments for growth and hence different traits are expressed when the listener experiences the music. For example, listening to the new wave Chi-house of “My New Muse” by Perseus Traxx on vinyl emphasies its historic background. The shiny black disc that carries the music reminds us directly of an era that was rooted in the 12″, turntables and drum machines, when house music was at the outer rim of music.  Listen to the mp3 or the wav and the same music can be heard, but those suggestions are not emphasised.

So, okay, an artist might be concerned with this relationship and decide that a particular format is essential, but that choice also limits the reach of that recording. Digital or vinyl, either way I think restricting the format of a piece of music is a lost opportunity but that choice still should be respected. One day I might meet Mike Huckaby, and I don’t want to feel like a shuck for ripping off his music.

3. Here’s the full tracklist for In Deep #036, which runs to 120 mins and was recorded on 7th January 2012. The tracks in italics are the ones I couldn’t get permission for, simply because no one responded to my message. And I never did get a final answer on the Kerri Chandler track, though I didn’t get an outright “no” either. Anyway, 17 out of 25 ain’t bad..

1. John Heckle – Fly City [Mathematics]
2. Perseus Traxx – Coded Emotion [Delsin]
3. Distortion – Throwback [Connaisseur Recordings]
4. Roy Gilles – Spotless Place [Blackrose records]
5. Petr Serkin – Junkyard [Shanti Records]
6. Be – Pass it On [Development]
7. 95 North – Get Your Mind Together [Large Records]
8. Alex Agore – Feel It [No Matter What]
9. The Same Old Souls – Health Benefits [Unreleased]
10. Harley & Muscle – Around Us [Little Angel Records]
11. Alex Agore – Stay Together [No Matter What]
12. Petr Serkin – Cassiopeia [Shanti Records]
13. Freestyle Man – One For Chez [Franco Bolli]
14. Jace Syntax – Roots Of House [Crayon]
15. Alex Agore – Do U Believe? [No Matter What]
16. Kerri Chandler – Back To The Raw (Instrumental Mix) [Deeply Rooted House]
17. Vick Lavender – Astronaut (DeJay Cease Love 4Soul Remix) [Open Bar Music]
18. Weekender – Sunday Session [Toko]
19. Perseus Traxx – Sticky Fingers [Bunker Records]
20. The Same Old Souls – Moving On [Unreleased]
21. Blakdoktor – Heaven In Your Eyes (Xpression Mix) [Shaboom]
22. Chris Simmonds – Message From The Duke [Cross Section]
23. Jose Nunez – In My Life feat. Octahvia (Jose’s Vocal Mix) [Subliminal]
24. Naohito Uchiyama – Halo [Foureal Records]
25. Restless Soul feat. Zansika – And I Know It (Jose Carretas Instrumental Mix) [Seasons]

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4 thoughts on “Don’t Fake It: Copyright and the Mixtape

  1. Great piece Matt. Very interesting and pretty much on point with my own thoughts around this.

    For example, with the Mantis Radio show I’ve always tracklisted my sessions with labels where possible (something so many online mixes neglect) because after all the purpose of the show is to share the music, and if you can’t find the music to support the artists/labels and enjoy it on your own headphones/system/dancefloor then it’s sort of pointless.

    I do disagree around your ‘podcast’ point. Podcast means I should be able to receive it as a podcast in iTunes or an RSS reader. Somewhere in the past few years with the massive influx of mix series available online, people kept the podcast term but ignored the fact you needed to set it up as an XML feed. It’s not difficult but it is more work than simply uploading to SoundCloud. Sorry, pethate of mine. If you call it a podcast and I can’t actually podcast it…

    It’s quite interesting seeing labels try new business models because music does need to have some worth to continue. Sure it’s great to get music for free, who doesn’t like free stuff, but with so much of it, being free means it’s more disposable as it’s cost you nothing other than a click to obtain it can be removed with nothing more than a click to delete. Yes to the curation point over the collection point.

  2. Thanks Mike..! My comment about the difference between podcasts and mixtapes was only half serious.. the difference is unfortunately blurred these days exactly as you say ;) You’re right, a podcast has a specific delivery route. Cheers for reading!

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