Discussion on Mashups and their Copyright Laws
I've never had a good understanding of copyright laws in music and how it all works so this will be a discussion on copyright laws regarding mashups, which is a topic I've been concerned with as I've been making small mashups for about 5 years as a hobby and also post some of them on SoundCloud. I also want to get into performing them live but by me using existing music and not mixing my own original content, I am not sure how that'll go down with the law. Thank god this topic won't be a huge bore for me because I'm actually interested in learning more about how copyright laws work around this particular department so that I'm aware of what I'm able to use/create in future projects.
Let's get to the basics first.
What is Copyright?
It is "a legal protection given to authors of original works, like songs, paintings and novels," (Rocket Lawyer, 2012) which in this topic, refers to the musicians or artists. Copyright is crucial for all artists and authors as it protects your works from being stolen or used without permission, (Rocket Lawyer, 2012).
What are Mashups?
So mashups are mixing pre-exiting songs with other pre-existing songs or your own original tracks to create new work (Australian Copyright Council, 2014) and an example would be adding a vocal track from one song and adding it over the instrumental or backing track of another song. I created a mashup using 3 songs: "Didn't Wanna Do That" - A$AP Ferg, "The Kill" (Ft. Niki Randa) - Flying Lotus, and "Without You" (Great Dane Bootleg) - Spooky Black and this also is an example of a mashup.
I used A$AP Ferg's track as the backing/instrumental track of the song and used Spooky Black's vocals as the main vocal while Niki Randa's vocals in Flying Lotus' track was there to serve as a higher range vocal as well as for the pads in the track to give it an atmospheric feel. I've had to make sure all the songs were in the same key (D Major to match instrumental backing part of song), had all matching tempos, and had to loop and chop and drop in the vocal parts that I wanted in the track. These are just some of the main steps that should be followed to create mashups. Here are the 3 original songs for this mashup.
Didn't Wanna Do That - A$AP Ferg
Without You (Great Dane Bootleg) - Spooky Black
The Kill (Ft. Niki Randa) - Flying Lotus
Every time I upload one of my mashups, I'm always crediting the artists and their songs in the description so to avoid anyone accusing me of stealing any content, but I am always not sure that that is enough to avoid having my mashups taken down.
Mashups and remixes have caused a lot of debate into who owns mashups and are pre-existing tracks allowed to be used to create new content so, what are you really entitled to when creating a mix of content created by others?
Regardless of anything, the person that created the material is usually the copyright owner and the creators of music have moral rights in relation to their works (Australian Copyright Council, 2014). But regarding mashups, they are normally protected by Fair Use (USA) or Fair Dealing (AUS).
Fair Use (USA)
Fair use is a doctrine created to "protect the first amendment right to freedom of expression for works deemed valuable to society (Rocket Lawyer, 2012) and in most cases, fair use has been used to protect a lot of parodies. How mashups get covered by fair use is decided by courts where they have to consider how the samples were used as well as what purpose it will be used for such as a parody or a transformative piece and what effect it has on the market (Rocket Lawyer, 2012). Because mashup artists tend to change samples dramatically either by changing the tempo, pitch, or by chopping up a sample, it then makes it into a new original work, which can mean that it can be considered "a form of free expression protected under fair use" (Rocket Lawyer, 2012).
Fair Dealing (AUS)
Fair Dealing is the Australian version of Fair Use in USA where the same rules apply: where it allows you to use material copyright without needing permission from the owner, but regarding mashups, "it is likely that the most relevant fair dealing purpose will be parody or satire" (Australian Copyright Council, 2014); meaning that you aren't really protected if you use pre-existing material for other purposes like music. They state that they only permit fair dealing with copyright material for "specific purposes such as research or study, parody or satire and criticism or review" (Australian Copyright Council, 2014), which kinda sucks but I guess it kinda makes sense, in that these specific purposes help to bring out new information or are platforms that can help people express their feelings against or for something, which is why they'd need to use pre-existing material.
Permission
Depending if you need permission to use pre-existing material also depends on how much of the material you are using. From the Australian Copyright Council's Information Sheet, it states that, "if you're not using a "substantial part" of the source material, then you don't need permission." (Australian Copyright Council, 2014). What they mean by substantial is the "important, distinctive, or essential part of the source" for example, a lead melody line or a lead vocal of a song. To be able to not use a substantial part of a song means that you'd need to "chop up the audio into either very small or almost indiscernible pieces" (Australian Copyright Council, 2014) and mash or remix it in this way, to be able to count as non-substantial. This way, you wouldn't need to have the artist's permission to use their work.
Uploading Mashups Online
It's common sense that you need to agree to some terms and conditions before uploading your work online and that you need to abide by copyright laws to make sure that you aren't going against them and ladida, but most times, you need to check with the particular site's policy regarding uploading material that has pre-existing material in it (Australian Copyright Council, 2014). Some sites may only allow original content/material only with no third party material incorporated to be uploaded on their sites, whereas other sites do allow third party incorporation. The Australian Copyright Council also advices that if you are at the stage where your mashups are beginning to reach potential commercial marketing, it is recommended to search for legal advice on whether you'd need clearance or not by using other people's material within your work (Australian Copyright Council, 2014).
Summary
To put this whole discussion into a small summary, if you want to make mashups where you can use other creator's samples without needing permission or not needing to be concerned with any legal stuff, take your sample, change/chop it up so it's totally different or unidentifiable from the original sample and mash or remix it into your own work, and you're good to go. If you're using substantial parts of pre-existing material, you automatically don't get protected by Fair Dealing and you'd need the owner's permission for using their material. In my opinion, if you're just starting out (just like me) and are just uploading your mashups just as a hobby, the least you could do is credit the artist and their work that you've used. Also tag them as well if you can. Just don't go around telling people that the samples in your mashups are yours when they clearly not, because that's stealing, and it's bloody rude.
From this research, I've actually learnt quite a bit about copyright laws concerning mashups. I never knew there was such large confusion regarding using other people's material and how confusing the whole process is to get mashups cleared of copyright infringement. It kinda sucks that we don't really learn about it in our lectures (or even in high school) as it would've helped me be more aware of what I'm allowed to use, as there must be a lot of artists out there not knowing how all this copyright legal stuff works and must have their stuff stolen left right and centre, without any protection or any knowledge that their materials are getting used.
As I continue to create mashups and hope to perform my mashups live someday (as a hobby or a side profession), I hope to learn more about these copyright laws so that I'm not stepping on anyone's toes and that everyone's happy on each end of the scope.
References
Rocket Lawyer. (2012). Mashups and sampling: what's fair use?. Retrieved from https://www.rocketlawyer.com/blog/mashups-and-sampling-whats-fair-use-97506
Australian Copyright Council. (2014). Mashups, Memes, Remixes & Copyright. (p. 1-6). NSW: Australian Copyright Council. Retrieved from https://www.copyright.org.au/ACC_Prod/ACC/Information_Sheets/Mashups__Memes__Remixes___Copyright.aspx
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