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.