Copyright protection on DJ sets ?
As collages of different musical elements DJ sets deserve copyright protection. DJs create sets in the same way painters create paintings. In fact, DJ sets are musical paintings. Copyright protection on DJ sets should not only apply to the more experimental and improvisational sets mixed during gigs, but also to pre-mixed sets.
On December 16th, 2012 Laurent Garnier celebrated 25th years of being in electronic music by DJing at Manchester’s Warehouse Project, streamed live to thousands on Boiler Room. A few months later, at Amsterdam’s Trouw he played an extended 5 hour set; a set that was recorded and has now been listened to by over 50,000 users at Soundcloud. When one listens to these sets online, is it to listen to the individual tracks or the musical collage of these tracks as a whole? In essence is it more than the sum of its parts?
DJ-sets and formatsTo understand my answer to this question, I should emphasize that in this context a DJ set refers to the musical collage of all tracks and components; remixes, edits, white labels, loops, effects, mash-ups and samples, selected and mixed by the DJ.
A DJ mix is a collection of these different musical elements, mixed live during a gig or pre-mixed. Keep in mind that when we use the term ‘live’ we are not referring to the playing of instruments or equipment in order to perform individual musical works (like musicians do). It is not relevant whether a DJ set consists of tracks composed or produced by the artist themselves; I want to focus strictly on the art of DJing.
DJ mixes come to us in many different formats. In addition to those live crafted sets, like that of Laurent Garnier’s, there are also physical mix products containing pre-mixed audio, as well as audio and mixes that get broadcasted on radio or TV. Nowadays however most mixes take the shape of digital mixtapes, online podcasts or mixes which are available for streaming from platforms like YouTube, SoundCloud, Mixcloud and DanceTrippin.
Copyright protection and neighbouring rightsWhen analyzing DJ sets in a more legal way, it is important to know which works would be protected under copyright law. From a global perspective there are two legal traditions to determine copyright protection: Anglo-Saxon common law (e.g. US, UK) and continental European civil law. According to the latter a work can be protected by copyright ‘if it is the expression of the creator’s own intellectual creation.’ In other words, the work must be the original result of certain subjective choices made by the creator. This explicitly applies to musical works (lyrics and compositions); collages of such musical works included.
In European copyright practice it seems that this legal threshold has the potential for application and could open the door for the protection of DJ sets. I have seen that in recent years many different objects were subject to litigation for granting copyright protection, such as the smell of perfumes, kinetic schedules, as well as the design of ‘beerbikes.’
In my opinion, according to the continental view on copyright protection laws DJ sets could be qualified as protected works as these musical collages are indeed the expression of the DJ’s own intellectual creation. While mixing, DJs have almost endless musical and technical possibilities to make subjective choices in order to build up a set that creates a flow on the dance floor or among the listeners. This copyright protection applies to the creative method of selection, arrangement and presentation of all different musical elements present in the DJ mix.
Within civil law tradition, certain countries such as the Netherlands do have the legislative concept of so-called neighbouring rights. These rights could be deemed literally as good ‘neighbours’ of copyright and provide legal protection to, inter alia, performing artists and the producers of phonograms (aka. the master owners or labels). According to the principles of neighbouring rights, it is arguable that mixing a DJ set is implying a performance of copyrighted musical works. While mixing DJ sets, DJ’s are presenting and re-interpreting these musical works in their own creative manner; in a similar manner to that of musicians when they improvise during musical performances. Therefore, DJs could also be deemed as performing artists.
In the Anglo-Saxon common law tradition, copyright protection applies to ‘original works of authorship, fixed in any tangible medium of expression.’ Skill and labour of the author, or creator, are central elements in this respect. Sound recordings are explicitly copyright protected according to common law.
In my opinion, given this legal threshold according to common law, only the recorded DJ sets could be legally deemed as protected works because these musical collages are indeed independent works of authorship, fixed within a tangible medium. The sound recording copyrights apply to the performance of DJ sets embodied in the recordings.
“paintingthroughsounds”The making of innovative pre-mixed albums underlines these conclusions. I refer to the Richie Hawtin’s Decks, EFX & 909 (1999), DE9: Closer to the Edit (2001) and DE9: Transitions (2005) as well as the experimental Joris Voorn mix compilation Balance 014 (2009). Richie Hawtin described DE9: Transitions as an “audio jigsaw puzzle using effects and edits as the glue between each piece.”
Hawtin asked himself the question as to whether or not this mix was transforming him from a DJ to a composer. Joris Voorn was literally talking about “painting through sounds” when he described the process of mixing more than 100 different tracks in both mixes for Balance 014. To add perspective, some of the tracks mixed on the CD consisted of six different source tracks.
Common practice in electronic music and futureMixing a DJ set means guiding and taking the dancefloor on a journey along musical heights. Even for the ‘press-play’ DJs, who are playing a pre-programmed set (whilst waving their hands in the air), their sets could be deemed as copyright protected as the musical collage is still the creative result of subjective choices made by the DJ.
Contradictory to my legal conclusion, common practice in electronic music still decrees that DJ sets are not deemed as legal objects protected by copyright and or neighbouring rights. For many years now DJ mixes have been exploited as musical collages separately.
DJs are paid reasonable fees for playing and from the audience’s point of view, DJs are the artists to listen and dance to. DJs are deemed as composers of their sets as well as performing artists. Having said this, I emphasize that the goal of legal protection should be the boosting of musical innovation and not just claiming intellectual property. A smart system of special remuneration could be the remedy for this. Collecting rights societies have a system that is based on the principle of individual musical works and authorized adaptations thereof; there is also a system in place for recorded performances of these individual works. There is no room in this system for our DJ sets; our musical paintings. Therefore, taking the legal protection of DJ sets as a new starting point, the next question should be how to incorporate mixes into the system of collective rights? Should we enlarge the existing ‘pie’ of copyrights and neighbouring rights to include mixes to therefore pay for the use and re-use of DJ sets? Or does this feel like a double dip?
Or, is it better to add DJ mixes to this ‘pie’ without enlarging it, by reshuffling the current remuneration? When tracks are mixed by DJs, sales of these tracks (supposedly) increase. In line with this Tiga stated recently that he believed collecting societies should be taxing the DJ directly rather than the events promoters.
After almost 25 years of dance music and decades of DJ sets it is time to ask ourselves these fundamental questions about the artistic nature of DJing instead of inventing counterproductive measures which obstruct musical innovation. Do we finally acknowledge DJing as an art form? Make room for the DJs!
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