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

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."

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

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  1. icon
    Karl (profile), 12 Feb 2014 @ 5:08pm


    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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