Sony Music have recently signed a deal with Dubset to ‘legalise’ remixes of their songs. The project follows on from the Content ID agreement between YouTube and music publishers in 2012.
‘Sampling is just a longer term for theft … Anybody who can honesty say sampling is some sort of creativity has never done anything creative’. Those were the words of The Turtles’ Mark Volman during an interview with the L.A. Times during the 1991 lawsuit his group levelled against hip-hop group De La Soul for their ‘Transmitting Live From Mars’. As a result of the out-of-court settlement, the group’s iconic album 3 Feet High and Rising is still unavailable on major streaming services.
At the turn of the millennium, the costs of sampling were so great that scholar Wayne Marshall declared that the costs had led to the ‘giving up’ its firstborn, with the heavily-sampled layers of Public Enemy replaced by the authenticity articulated by band The Roots. Yet, Moses is not yet in the bulrushes.
As I pointed out in my recent article on Chance the Rapper, free mixes and mixtapes circulated in the grey area of SoundCloud’s free content have only gained in prominence. This creates an uncertain future for musicians whose back catalogues created their prominence but which exist in a liminal space where they cannot be sold yet could still lead to lawsuits.
Dubset, however think they have the solution:
Dubset’s MixSCAN® technology parses mixes & remixes into smaller micro audio segments and uses a combination of acoustic and textual fingerprinting technologies, along with proprietary heuristics and pattern analysis technology, to identify all original master recordings used in the mix or remix. This information is then used to build a unique MixDNA track list and copyright structure that can be used to control usage and distribution of content by rights holders, and collection and administration of streaming royalties.
The result of five years of content analysis and algorithm design, MixSCAN® utilizes a library of over 100 million master recordings and dozens of additional authoritative databases to ensure accurate track identification and label/publisher rights holder association.
This approach seems appropriate for reclaiming financial compensation for the use of rights. However, it appears to neglect many of the moral rights important in allowing one’s music to be licensed. In the US, the case of Campbell v Acuff-Rose Music in 1994 dealt with this subject in regards to 2 Live Crew’s sampling of Roy Orbison’s ‘Oh, Pretty Woman’. This case concerned whether this parody was ‘fair use’.
In particular, Dubset’s agreement with Sony seems to bypass the US Copyright Act of 1976’s § 107(4) ‘the effect of the use upon the potential market for or value of the copyrighted work’. I.e. it is unclear whether the copyright holder has any say over whether their material is used, they simply benefit financially from its use.
However, these problems aside, Sony and Dubset should be applauded for attempting to find a technological solution which could produce commercial rewards for both parties.
By Jonathan Coote. Jonathan is a guitarist, who is currently working as a paralegal after studying music at Cambridge University and King’s College London