A Guide to Music Copyright For DJ and Producers
A quick lesson on navigating the streaming minefield
Oh, the mixtape. It’s been a cornerstone of DJ culture since Kool Herc and Grandmaster Flash first archived the seminal ‘70s Bronx block party sets that birthed hip-hop.
It has evolved alongside technology to become a pivotal piece of modern music culture, but technology has not necessarily evolved with it.
As essential curators, bold trendsetters and unwavering disseminators of modern music, DJs set the tone for popular music. They’ve become icons, in some cases eclipsing traditional pop stars. Yet, in a mystifying twist of fate, as an industry insider told me, “The recording industry at large has systematically refused to enable clearance and monetization pipelines in the name of control.”
Copyright law can feel like a minefield, but it’s crucial that DJs and producers grasp its most basic elements. The complex patchwork of regulations that first appeared in the 18th century now govern everything about how we create, consume and distribute creative content, and while much of the focus is spent on Sony, Warner and Universal, independent stakeholders are vital to the ecosystem as well.
What Does Music Copyright Mean For DJs?
To understand why copyright continues to be so problematic for content creators, it’s important to first understand how ownership functions.
“Record labels own the rights to recordings, and music publisher’s own rights to songs,” writes Annie Lin, Senior Corporate Counsel at Twitch. “While recordings are usually owned by just one label, it's not uncommon for a song to be owned by two, three or more publishers, each of which holds a percentage and collects a share of the royalties generated by the song.”
But I paid for this song on Beatport. Doesn’t that mean I paid the licensing fee for it?
The simple answer is, no. Purchasing a song from Beatport, Traxsource or iTunes does not authorize you to play that song publicly.
Why can you play your music at a club and not be subject to copyright infringement? Because venues pay Performing Rights Organizations (ASCAP, BMI, and SESAC in the US) public performance licensing fees. Those organizations then pay publishing companies and songwriters for the use of their content. This is the same license that Twitch pays to allow for the use of music during streams.
What if I just post an accountability notice? I’m not trying to make money off of this. I just want to play some tunes!
The problem here is that the mechanisms which allow rights holders to track the use of their content are part of an inhuman algorithm. Content ID systems utilize a technology called “audio fingerprinting” to scan incoming content. The results are then checked against catalogs of content for a match.
If a match is determined, and that piece of content is on a list of non-authorized content, your content is either automatically blocked or muted and a notice is sent. The platform has no way of preventing this from happening on individual streams without some kind of physical intervention.
Is The Industry Creating Solutions For DJs?
DJ mixes can contain anywhere from five to 50-plus songs, depending on the length and mix style of the DJ. Do some math, and that means hundreds of rights holders are involved. How do you coordinate all of those rights holders and apply the appropriate royalties and metadata?
Establishing a system that coordinates rights holders in the name of legitimizing DJ mixes requires a herculean effort. It also means that rights holders need to play ball. Many of the platforms that exist have the resources to get it done, but the recording industry at large continues to be at odds with DJs; all at once sending them free music to play at clubs while actively locking DJs out of the distribution.
It’s been proven that such a system could exist. Owned by San Francisco’s Dubset Media, MixBANK was a platform that made blanket licensing agreements with labels and publishers. This allowed DJs to upload and distribute DJ Mixes and bootleg remixes.
Dubset boasted a catalog of tens of millions of songs and had deals with thousands of labels including two of the three majors. Its payment structure allowed labels to actively track, control and monetize their content. There were still significant hurdles to leap with the remaining rights holders - and I would know, because I worked there to distribute thousands of pieces of content from both A-list and bedroom DJs.
Rightsholders retained complete control over their content, and even if they were fully on board were able to put additional barriers for use in place. Certain artists, and catalogs were completely blacklisted from being used. And even with the massive catalog that Dubset had access to, there were still large sectors of the industry that continued to hold out on signing commercial deals with the service.
What Are The Options?
So, what can a DJ do to effectively market themselves and give listeners an experience they’ve grown used to?
For top-line DJs, the answer has historically been official DJ mixes such as DJ-Kicks. In this context, each song is licensed individually by its rights holders, but even at that level, it forces DJs to compartmentalize their process in a new way.
“Normally when I’m doing a mix, you don’t have to get agreement from the label to include a track,” British DJ Patrick Topping says in an interview with Insomniac. “This time, you’ve got these constraints. You have tracks you want, and if the label doesn’t want to release them, it changes the whole direction of your mix. I had never really thought about these constraints before when I had been listening to the fabric series or the DJ-Kicks series or something like that. When I had listened to the mixes, I never really thought about the fact that they had loads of tracks turned down.”
Mixes like this were more common when physical media was in vogue. Now that DJ mixes are available for free online, it doesn’t make much sense to put the time, effort or capital into this style of mix.
In the wake of COVID-19 restrictions, DJs have flocked to live streaming platforms like Twitch, Facebook Live and YouTube to give fans an in-person feel. None of these platforms were built with DJs in mind, and while they’ve found ways to support rights holders in identifying content, they’ve done so without concrete deals with labels in support of content creators.
That’s not necessarily for lack of trying.
Twitch seems like an obvious choice for DJs, especially considering their deal with Soundcloud last March. The two companies aimed to fast-track Premium SoundCloud creators to Affiliate status, allowing them to unlock monetization tools.
Twitch often adds DJ sets from leading brands (Insomniac, Beatport, Space Yacht) to their front page. Clearly, they understand the demand, and yet the platform lists DJ sets as a “Type of content you may not use Twitch streams and on-demand content” for.
Twitch’s new SoundTrack feature hints at a set of deals, giving streamers access to catalogs from Monstercat, Insomniac, Distrokid and other labels. Unfortunately, it still changes nothing for DJs, as it mainly allows gamers to include background music in their streams. Majors, too, are noticeably absent from the label list.
A recent rash of DMCA complaints sent to Twitch by rights holders hit Video On Demand content hard. In response, many streamers simply chose not to feature VOD content, hoping that this will skirt Content ID triggers. Some streamers took down content that was a year old or even older, and Twitch’s response was to stop using recorded music in streams at all, even if it was attached to gameplay.
Some platforms were created with DJs in mind, Soundcloud and MixCloud being the most prominent. They’ve gone so far as to integrate themselves into popular DJ software platforms like Rekordbox and Serrato, but they still insist that DJs “please bear in mind that you must have permission to use all tracks that you have included.”
The most recent entry into the market is AUDIOS; a SoundCloud-like platform built on the blockchain, meaning none of their content is stored on servers and is instead spread out through a series of nodes.
The company claims that blockchain content can “never be censored or removed,” but as Journalist, DJ and Recording Academy representative Dani Deahl writes, “Audius is trying to avoid SoundCloud’s copyright issues by not hosting the user-uploaded content itself.”
The blockchain system doesn’t resolve grave issues related to adequately verifying artists. Lawyer Adam Freedman, who represents Herobust and Beats Antique, raised the alarm.
“Hey @AudiusProject,” he tweeted, “someone else created a profile for one of my clients and uploaded all of their music, presumably so this imposter can collect all of the monetization. Are you doing anything to protect against this? it seems like u just stopped responded to my clients instead [sic].”
AUDIUS promised to address these concerns, yet seemingly nothing has changed. What seemed like a panacea is blatantly ignoring the rules, possibly setting themselves and their users up for trouble.
There are not many places where a DJ can host their content with the full knowledge that they will be free from copyright issues. YouTube comes close, as they’ve set their Content ID system to track ownership and allow rights holders to monetize content that appears on other creator’s channels.
If you want to avoid rights holders from taking your YouTube cut, best practice is to pre-plan your mixes as to only include content you’ve been granted the rights, too.
To date, MixCloud is the only platform that ensures a worry-free experience for DJs. They work directly with rights holders to monetize content specifically for these purposes.
The site works somewhat like a radio station as opposed to a more traditional streaming site. Because of that, the rights holders have set several restrictions. For example, you aren’t allowed to use more than four tracks by any one artist. If you break these rules, your mix will only be available to MixCloud’s premium users, as this is content that can be monetized.
MixCloud also hosts a live-streaming platform for DJs. It has many of the same features as Twitch, but because of its licensing structure, MixCloud can not archive livestreams. Considering their fairly low market share, it’s hard to say when or if that will ever happen. That being said, if enough DJs make the move to the platform, MixCloud could become the de facto site for viewing and listening to DJ mixes.
In June of 2018 Apple Music, added the DJ Mixes & Live Sets genre. It was the first genre update in years, and a huge step in legitimizing Dj culture Yet even with the support of DSPs, fans, and the DJ community there is still a long way to break down the barriers DJs face to distribute content. It’s up to us to stay informed, and continue to prove to the music industry that our work is necessary for a healthy ecosystem.