Crime Scene: Sample In Progress

            The purpose of copyright law is to protect a creator and their intellectual property from plagiarism. The Copyright Act of 1976 defines the exclusive rights of the copyright holder and the cause of action for infringement. Modern copyright law was influenced by a variety of legal rights throughout history that included the moral rights, economic rights, and property rights of authors and consumers of many ancient cultures (Bettig, 1996). US copyright was originally restricted to books, charts and maps but was amended by congress several decades later to include musical works. By the time the nineteenth century came to a head, domestic composers had generated quite the body of work and began to rely heavily on copyright law to protect their works (Keyes, 2004).

            Copyright infringement occurs when one or more of a copyright owner’s exclusive rights under the Federal Copyright Act are violated. According to Title 17 of the United States Code, “the copyright holder must have a valid copyright, the person who is allegedly infringing must have access to the copyrighted work and the duplication of the copyrighted work must be outside the exceptions”. There are many penalties and legal ramifications for copyright infringement that include having to pay back the actual dollar amount for profits and any damages that have incurred as a result of the infringement. Violators can be fined anywhere from $200 to $150,000 for each infringement and will be on the hook for any and all attorneys fees, court costs and restitutions. The court will most likely issue injunctions to cease the infringing acts and arrange to have the illegal works impounded and destroyed which is a cost that can be burdened upon the violator by the record label, if applicable. Most copyright infringement cases are civil in nature but can result in criminal convictions in extreme cases like file sharing.

Copyright infringement is a very real concern for the independent record label in my business plan. The biggest potential for copyright infringement in my business will occur as a result of sampling. Sampling involves taking elements from a pre-existing musical composition and placing them into your own musical works (Salmon, 2008). Some would argue that sampling is a form of fair use that improves upon music and some would argue that it is a form of stealing but one thing is for certain; if the sample has not been cleared by the copyright owner(s), “you infringe on the copyright owner’s exclusive right to approve or refuse the creation of derivative works” (Limelight, n.d.). There are two forms of sampling that avid listeners of music should be familiar with: taking a portion of a master recording to use and re-recording an all new version of the composition (Limelight, ¶3).

On September 13, 1994, hip-hop superstar and Brooklyn native, The Notorious B.I.G. released his highly anticipated and critically acclaimed debut album, Ready To Die. Biggie’s release was also the very first album released on Bad Boy Records (which was originally a subsidiary of Arista Records before its recent signing with Interscope). B.I.G.’s album, which merged raw storytelling with street life experiences and his rags-to-riches lifestyle garnered critical acclaim and went on to sell more than 4 million copies and receive a series of accolades, many of which came after his untimely murder in the early months of 2007, just days before the release of his diamond selling sophomore album, Life After Death. On February 5^th of 2007, Bridgeport Music and Westbound Records filed a complaint against Bad Boy Records CEO, Sean “Diddy” Combs for the unauthorized use of “Singing In The Morning” by The Ohio Players (Rogers, n.d.). The five-second horn loop sample ended up costing Combs a little more than $100,000 per second (Salmon ¶13).  In the end, the trial judge awarded Bridgeport with $150,000 in statutory damages and Westbound with $366,939 in actual damages. Furthermore, Combs was ordered to remove the samples from any subsequent pressings of the album. Interestingly, this case led to two other tracks having samples removed from the album, which resulted in a remastered version of Ready To Die, minus the three uncleared samples.

            In Bridgeport Music v. Combs, it was discovered that Combs (who was the executive producer of Ready To Die) authorized the release of Ready To Die with the understanding that there were still samples on the album that had yet to be cleared. Snippets of copyright protected sound that are processed, edited and disguised all require permission to be used. Producers who remix or use samples in their instrumentals and artists who employ resung elements of pre-existing recordings are typically the ones responsible for gaining sample clearances from the record label (Salmon, ¶18). To be able to clear a sample, one must acquire both a license from the record label, or other entity that owns the actual sound recording, and a license for the underlying musical composition, which is owned by the publisher (Limelight, ¶3). In instances where the original copyright was not assigned to the record label or publisher, permission must be sought out from the respective copyright owners, or heirs if applicable.

            Protecting my business from copyright infringement can be a lengthy process, particularly if I sign acts that are heavily reliant on the art of sampling. However, lengthy processes are a lot better to my business and I in the long run than costly ones. To begin this process, I will need the name of the track to be sampled, the name of the composer(s), the name of the record label and the name of the persons who will use the sample. (All Music Guide, Discogs, Music Brainz and Who Sampled are all great resources that will help me find this information.) Next, I will need to provide the copyright holder with the precise length of the sample to be used, a description of the usage, a copy of the finished product and a written request for the sample to be cleared. If the sample has been cleared to use, it’s now time to negotiate the extent of usage and payment options. A flat fee, rolling fee and ongoing royalty fee will depend on the song’s likelihood of success, the original work’s notoriety and overall impact of the sample (Salmon, ¶30). After the details have been hashed out, one critical element remains: the credits on the final product.

            There may very well be instances where using a sample is out of the question because of price constraints or because of a denial for a clearance altogether. Royalty-free music is one alternative to curbing copyright infringement. There are many music companies that produce music for a one-time fee, free of royalties and can be a lucrative alternative for somebody with a good ear and good nose that can sniff out potential classics. Cover songs are a legitimate alternative to sampling because acquiring a mechanical license can be much easier. Finally, a Creative Commons License works alongside a copyright that gives copyright owners the choice of which rights they wish to retain in their works and which of those rights they wish to waive. With that said, Tomeworks will not willingly release any music to the public with uncleared samples because of the grave consequences of artists, producers and record labels as demonstrated in recent history.

Business Legal Liabilities

  This week, I have identified three podcasts online that deal with liabilities pertaining to my Tomeworks business plan. The first podcast comes from Chicago based law firm, Davis McGrath and covers copyright infringement. There are six rights that belong to a copyright owner: the rights to reproduce work, to prepare derivative works, distribute copies, perform the work publicly, display the work publicly and perform the work publicly by means of a digital audio transmission. Copyright infringement occurs when someone usurps or interferes with one or more of these exclusive rights. The remedies for copyright infringement include, but are not limited to, injunction, the impoundment or destruction of the goods in question, compensatory damages and/or profits, attorney fees and statutory damages. This is an excruciatingly crucial facet of running an independent record label because not only am I charged with making sure our works get registered to protect my artists, I am also ultimately responsible for getting sample clearances and making sure I remain inside the framework of a copyright agreement because it can cost me a lot of money or my business altogether if I fail to do so.

  The second podcast pertinent to my business plan comes from Stanford’s Center for Internet & Society and is directed at fair use. While copyright is considered to be a series of restrictions, fair use is considered to be a set of exceptions. Copyright owners are not granted unlimited control over the works that they own. Fair use gives individuals certain freedoms to expand upon copyrighted works as long as the improved work falls within the fair use guidelines. The fair use doctrine was originally put in place to encourage improvements in technology and intellectual property so a new work derived from an old work must be transformative in nature. The thing that makes this podcast so great is that there are legal experts that answer some frequently asked questions about fair use and they debunk some of the myths and preconceived notions that people may have about fair use. Tomeworks will create music, videos, pictures, stories, etc. so knowing what constitutes fair use and what constitutes copyright infringement will be the difference between life and death for my record label.

  Lastly, the London School of Business and Finance discusses the tort of negligence. They explain that, “in order to succeed in the tort of negligence the claimant must prove that the defendant owes him a duty of care, that the defendant breached his duty of care and as a result, the claimant suffered injury, loss or damage.” Negligence is something that can affect any business and an aspect of business that business owners should be fully aware of. Negligence can happen if an employee is hurt on the job and that person is being kept from getting the proper care and treatment for whatever reason. Negligence can also occur if the employer knew full well about certain conditions that had the potential to inflict harm, injury, or death on the employee but subjected them to those conditions anyway. In my opinion, there is no asset more valuable to a company than an employee so it is vital to a business to protect them at all costs or face dire consequences.

         

Industry Liabilities Around The League

          Irish singer-songwriter Sinead O’Connor has threatened sexpot Miley Cyrus of Hannah Montana fame with legal action if she doesn’t apologize for taunting her online in the wake of a series of passionate letters O’Connor has written to the former Disney actress regarding her late raunchy public antics. O’Connor charges that Cyrus took below the belt jabs at the state of her mental health in her response, potentially doing irreversible damage to her career. The feud began when Miley explained in a recent cover story in Rolling Stone magazine that her controversial “Wrecking Ball” video was inspired by O’Conner’s classic video, “Nothing Compares To U”. O’Connor responded with a public letter accusing Cyrus of pimping and prostituting herself to people who “don’t give much of a [expletive] about [her].” Cyrus fired back on Twitter with “Before Amanda Bynes, there was…” followed by a screen shot of O’Connor’s tweets desperately seeking out psychiatric help two years ago.
          I believe both singers are in the wrong and showed no class when dealing with each other. Instead of being humbled by Miley’s compliment in Rolling Stone, O’Connor went on the offensive and made herself vulnerable to attack. Instead of letting Sinead’s letter fall on blind eyes and deaf ears, Miley herself went on the offensive bringing attention to somebody who had nothing to do with the argument. So does Sinead O’Connor have a case? Probably not but the moral of this story is that Twitter shouldn’t be used for personal attacks because the whole world is watching you (and at times egging you on) and the utmost professionalism should be a standard at all times.

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          Meanwhile, Robin Thicke’s summer anthem, “Blurred Lines” has apparently been getting people in a lot of hot water lately. The video for the Pharrell Williams produced chart topping hit that features dirty south rapper TI, features three topless models in an unrated video on Vevo. “Blurred Lines” is in the midst of controversy in Scotland where it’s facing a ban by the Edinburgh University Students’ Association to back up its “End Rape Culture”. Defiers of the ban will have to answer to complaints and face harsh repercussions. The song has also lead to the firing of a high school dance coach in Wisconsin for a dance routine performed at halftime to the song. Though, the coach has exhibited the utmost professionalism during her time at the school according to some of the parents, the school stands behind their decision and is seeking out a new candidate for the position.
          My opinion on the whole thing? Get a life, people. The EUSA is insinuating that if the song is not banned, people are going to be raped because of it; the charge is outrageous. If someone is going to rape someone, they are going to get the urge to do it to other songs beside this one. How can an institution be free, equal and accepting if they go around banning something as simple as an infectious chart topping song? Scary thing is that the banning culture in other countries is beginning to trickle in to the United States as seen with the example in Wisconsin. People should be free to blow their eardrums out to whatever they want. I say, “blow their eardrums out” because I can’t listen to this song without playing it full blast.

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          Finally, step aside Kickstarter; there’s a new sheriff in town. Remember when crowdfunding meant that you could become a backer? Well, all that’s about to change because now you can become an investor. Equity crowdfunding has taken off in Europe, and though there are still many legal hurdles here in the states, we are well on our way to follow suit. Conventional crowdfunding means you back a project that you hold near and dear to your heart and receive perks from the creators as a thank you for your contributions. “Equity crowdfunding means that you can become a [business] partner in a company, venture or product.”
          So, what does it mean for crowdfunding as a whole if conventional crowdfunding is foreshadowed by equity crowdfunding? I have no problem with people using equity crowdfunding if it works for them unless there is potential for fraud, abuse and cronyism. I know that if I’m going to use crowdfunding to fund my product, I’m most likely going to use Kickstarter because I like its system and it would work for me. However, when you say the word equity, the little hairs on the back of government go up. The only worry I have is that crowdfunding becomes another issue that this massive government gets their grubby little paws on because it’s going so good for the individual. They seem to know how to mess this kind of stuff up for people.