Fair Use and Electronic Dance Music: Will the Availability of Music Altering Applications Cause a Shift in How Courts Assess Copyright Violations?

• Author: Fenniman, Bradley

ABSTRACT 22 I. INTRODUCTION 23 II. THE LAW 26 A. WHAT IS COPYRIGHT? 26 B. FAIR USE AND SAMPLING 28 C. THE COURTS' VIEWS ON FAIR USE CONCERNING REMIXES, MIXES, AND LIVE PERFORMANCES 33 III. THE TRANSFORMATION OF THE MUSIC SCENE SHOULD LEAD TO COURTS FAVORING THE TRANSFORMATIVE PRONG OF FAIR USE 35 A. WHERE THE COURTS STAND Now 35 B. THE GREY ALBUM: A CASE STUDY 38 C WHAT IS A BRIGHT-LINE RULE FAVORING THE TRANSFORMATIVE PRONG IN ELECTRONIC MUSIC? 41 D. WHY IS A BRIGHT-LINE RULE FAVORING THE TRANSFORMATIVE PRONG GOOD FOR MUSIC IN THE ELECTRONIC MUSIC ERA? 42 1. IT WILL PROMOTE CREATIVITY 42 2. A BRIGHT-LINE TRANSFORMATIVE RULE ELIMINATES UNCERTAINTY 44 IV. CONCLUSION 45 I. INTRODUCTION

Electronic Dance Music, commonly referred to as "EDM," is a genre of music that employs the use of computers and other technological instruments in its creation. (1) Music has been electronically produced for the past 50 years, with the creation of the Moog synthesizer, (2) but EDM only gained its popularity recently. (3) In the early days of electronic music, producers used new technology like the Moog synthesizer and the Telharmonium (4) to reproduce already created works, instead of creating new songs. (5) In today's era, producers use computers, microphones, electronic oscillators to record, alter, and playback electronically created music. (6)

The birth of EDM started in the 1970s with Disco club music. (7) Electronic music pioneer Giorgio Moroder made a major contribution to the EDM that we hear today by popularizing the use of electronic sounds with repetitive percussive beats. (8) This paved the way for the "rave scene" (9) in Germany with the popularity of house, acid house, and techno. These subgenres of EDM are created using elements from many musical genres like jazz, disco, R&B and many more. (10) House music and other subgenres of EDM are created with repetitive percussion and high hats combined with smooth bass lines and melodies all on a computer.'' EDM and EDM subculture began to blossom in the 2000s with the help of social media websites like YouTube and SoundCloud. (12) Artists like Skrillex paved the way and started to popularize live performances, transforming the underground subculture in to mainstream popularity. (13) With EDM on the world stage, producers were sampling music in their own work and performing live with other artist's work in the form of samples on a massive scale. (14)

Sampling is a major component of creating electronic dance music. (15) Sampling sound is the act of taking small sound bites or "clips" from other creative works and incorporating them in to a new piece of music. (16) This is encompassed in new songs as well as live performances. It is an incredibly common production tool that electronic music producers use to enhance their own creation. (17) Sampling is popular in electronic music production because of its availability in the digital era. (18) The author of What Is Electronic Music? put it plainly stating "[w]ith the proliferation of digital production technology, the creative possibilities of sampling are virtually endless." (19) No longer does a producer need to hire musicians for vocals for other musical elements. (20) One can simply download sample packs online and chop and break beats in countless combinations until their creation is complete. However, DJs and producers can face legal claims if they do not obtain the rights to use the sampled works or cannot claim fair use. (21)

DJs can legally sample other works of art if they can successfully assert an affirmative defense of fair use under 17 U.S.C. [section] 107. (22) 17 U.S.C. [section] 107 highlights four elements that the court can weigh to determine fair use: the purpose and character of the use; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work. (23) These enumerated elements act as a defense to an infringement claim in order to allow courts to avoid stifling the artistic creativity and ingenuity that copyright law was meant to protect. (24)

2. THE LAW

   1. WHAT IS COPYRIGHT?

      Title 17 of the United States Code gives creators the unfettered rights to use their own creations however they choose. (25) Title 17 encompasses all of United States copyright law, including amendments and the Copyright Act of 1976. (26) The purpose of the copyright act is to incentivize creators to do exactly that, create. (27) Furthermore, 17 U.S.C. [section] 102 notes that musical works and sound recordings are copyrightable, and therefore the unauthorized use could lead to an infringement suit. (28) Similarly, Title 17 incentivizes musicians to seek approval to use others' works so that they do not face infringement. (29)

      Electronic music producers use samples as a tool to enhance their own creation because it ads layers and complexity to their music. (30) Copyright law gives musicians exclusive rights to these samples in the form of their original creation. (31) For this reason, if a musician wishes to borrow the creations of another artist, it is wise to obtain the permission from the creator or the borrower could face an infringement lawsuit. (32)

      The process for obtaining permission to use a sample is called "sample clearance." (33) Sample clearance is not always required, but if a musician wishes to distribute his work to the public, sample clearance is a must. (34) Typically DJs do not have to worry about getting sample clearance for playing a live performance. (35) This is mainly because it is an industry standard for a club/venue owner to clear the rights with the original creators. (36) However, DJs sometimes record their live performances and put them on various websites like "Soundcloud" for fans to listen to. (37) While these mixes are not distributed for monetary gain, artists still need to clear all of the samples before they can distribute. (38) For example, dubstep pioneer, Excision, played at Shambhala Music Festival in August of 2016, but did not release his recording of his performance until one month later. (39) This is because out of his 87 song performances, he only owned the rights to 17 songs, requiring sample clearance for 70 songs. (40)

      Musicians will need sample clearance if they wish to distribute copies to the public, especially if there is monetary gain. (41) For example, electronic music producer, Bassnectar, would have needed to clear the sample to remix Ellie Goulding's track, Lights. (42) Furthermore, EDM producers like Bassnectar, face higher scrutiny when remixing, as opposed to sampling because of protections from Title 17. (43) Remixing a song fits nicely in to what Title 17 defines as a "derivative work." "A "derivative work" is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a "derivative work"." (44) [section] 106(2) gives the original creator exclusive rights to derivative works. A remix of a song fits in to the definition of a derivative work squarely because by definition it is an adaptation of the original. (45) Title 17 effectively highlights the multiple protections that creators have and therefore the multiple vulnerabilities EDM producers face in remixing and sampling music.

   2. FAIR USE AND SAMPLING

      The focal point of this paper will be surrounding fair use, and how judges analyze factors in determining fair use. The fair use portion of 77 U.S.C. is found in [section] 107. (46) The Fair Use doctrine of Title 17 focuses on four factors. (47) The four factors are:(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;(2) the nature of the copyrighted work;(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. (48) This paper will focus mainly on the first and the fourth prong of fair use. The first prong is informally known as the transformative prong. (49) The transformative prong is important because it focuses on if a creation was transformed by adding expression, versus merely being copied. (30) Courts look to see whether works merely supersede the original work or if "instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is 'transformative.'" (51)

      Furthermore, the transformative prong analyzes whether the borrower has added value to the creation by transforming it. (52) Essentially, the transformative prong helps courts analyze if the original creation has been materially altered enough that the borrower's use of it is now fair. (53)

      When determining fair use, courts also often look at the fourth prong of [section] 107. (54) The forth prong (herein market effect) assesses whether the new creation deprives the original creator of income or undermines a potentially new market for the copyrighted work. (55) This means that DJs can walk a thin line when sampling other's works depending on what samples they choose to use. A DJ could make the argument that using a sample from a film has little market impact because it is being used for electronic music, and not the film industry. Furthermore, when assessing the market impact, courts "consider not only the extent of market harm caused by the particular actions of the alleged infringer, but also "whether...