Quick Tips for Avoiding Some Serious Trouble
IN MARCH 2012, KANYE WEST WAS SUED IN UNITED STATES DISTRICT COURT by The Persuaders’ Robert Poindexter for $500,000, alleging that a track on Kanye’s mixtape Freshmen Adjustment 2 contained an illegal sample of the song “Trying Girls Out” by The Persuaders. Mixtapes have long occupied a gray area in the recording industry. While they are often incorporated into marketing efforts for major hip-hop releases, record labels do not generally condone an artist’s unauthorized use of copyrighted music, movie/TV clips, and artwork. Whether you’re creating a mixtape of your own, releasing one to promote a label release, or distributing a mix for someone’s promotional efforts, here are some legal considerations…
Music & Audio Clips: The Kanye West suit is based upon a fundamental understanding in the music industry: Unauthorized sampling is considered infringement and is illegal. Original recordings are protected by copyright and if sampled without permission, there is an infringement of both the sound recording and the underlying composition. The U.S. Constitution (which authorizes copyright protection) and the Copyright Act were created well before the advent of digital sampling and, while sampling is not specifically prohibited by law, it has yet to be included as a defense to copyright prohibition. Some have argued that the Fair Use Doctrine under the copyright law may accommodate rapid technological changes such as sampling. In determining fair use, several factors are generally analyzed, including: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion taken, and (4) the effect of the use upon the potential market. Until the law changes, sampling remains illegal under the traditional theory of copyright protection. An artist’s remedy for infringement is an injunction against further copying, actual damages, and recovery of the infringer’s profits, and/or statutory damages. The Copyright Act states that any person who infringes a copyright willfully and for purposes of commercial advantage or private financial gain has committed a criminal offense. In addition, most record contracts contain provisions whereby the artist guarantees that all of the album material is original, and agrees to reimburse the label for all of its costs and legal expenses if an infringement suit arises.
Movies & Television: Mixtapes often involve the use of audio clips from television or movies over tracks or as filler between tracks (or for use as comedic skits, intro/outros, etc). Just as with sampling music from another artist, sampling a line of dialogue from a movie is illegal without authorization.
The two most common legal issues you will face while designing artwork for a mixtape are related to copyright and “likeness” rights.
Copyright issues may arise if you use someone else’s artwork or photos in your mix’s artwork. Like the audio and dialogue clips discussed above, artwork is likewise covered by copyright protection. Remember, no formal filing or paperwork is required for the existence of this protection: it is protected upon creation. Unless you have the artist’s expressed permission (called a “license”) to use his/her photo, painting, drawing, logo or digital image, you are violating the copyright laws. Infringement can also occur if you use the work beyond the scope of a license; adapt an image without permission (called “art rendering”); or ask a photographer to identically recreate the image. If a court finds that you’ve infringed on someone’s copyright, you can be held liable for statutory damages (between $750 and $30,000), actual damages and profits, or – in rarer circumstances – criminal penalties.
Of course there are ways to legally use someone else’s work without express permission. First, as discussed above, under the Fair Use Doctrine of the copyright laws, it is permissible to use limited portions of a work (including quotes) for purposes such as commentary, criticism, news reporting, and scholarly reports. This, however, is not likely to apply to your mixtape’s artwork or promo materials. The second (and more applicable) option would be use of images and artwork from a stock image resource, either fee-based or free. Finally, you can use images with certain types of “Creative Commons” protections, which, depending on the level of protection, may allow for use without consent.
Likeness Rights: In addition to using a copyrighted work, you can also be sued for using someone else’s name, likeness, or personal attributes without permission (most often when used commercially). The right of publicity is essentially the right to control the commercial use of your identity and image. The most common way to get in trouble here is by using the legally protected name or likeness of another for commercial gain without consent. This differs from violation of copyrighted materials because the claim is for the use of the person/likeness, not of the image itself. Here is an illustration: if you were to use a picture of Jay-Z on your next album cover without permission, the photographer may have a claim for copyright infringement, and Jay-Z would also retain a claim for violation of the right of publicity.
If there’s a piece of artwork or photo that you absolutely must use, make sure to get the permission of the copyright holder in writing. Remember, the person who took the photo or is the photo subject is not necessarily the copyright holder. Second, just because an image seems “stock” or free, don’t count on it: look for indicators of ownership (artists name, copyright “©”, year of creation, trademark “™”, etc). If you have any doubts, get consent or forget it.
AVOID LEGAL PROBLEMS:
Trouble tends to follow the money. While sampling without authorization is illegal, it is less likely if produced without commercial intent (or success) and distributed for promotion purposes only. Some may even argue that – as an unknown – a lawsuit based upon your mixtape can mean only good things ahead. That being said, if you’re working your way up or concerned about the legalities of your mixtape, your best bet is to contact an experienced lawyer in your area.
Adam Barnosky is a Boston-based attorney and writer. For industry trends, legal updates, or to request an upcoming Legal Pad topic, find him on Twitter @adambarnosky.
DISCLAIMER: The information contained in this column is general legal information only and should not be taken as a comprehensive guide to copyright law. Consult your attorney for all specific considerations.