Ever since the inception of remix culture in Jamaican reggae music of the 1960s, through to the explosion of sampling in US hip-hop during the 1980s and its continued popularity in pop music today, samples have operated in a legal grey zone. This has led to a number of lengthy and acrimonious legal battles over copyright and royalties.
One of the most famous cases occurred when lawyers representing Queen and David Bowie sued the rapper Vanilla Ice for copying the bass line of their 1981 collaboration Under Pressure. The case revolved around the bass line of Ice Ice Baby, Vanilla Ice?s 1991 crossover hit which fused rap and pop to lucrative effect, becoming the first hip hop single to top the Billboard 100 in the US.
To say that Vanilla Ice was not without his detractors would be a massive understatement. A white rapper in a predominantly black musical subculture, many media commentators and hip hop fans accused him of cultural appropriation. Just as it took Elvis to bring blues to the mainstream, it took a white guy from Texas to bring hip hop to the charts ? or so the argument went. Admittedly, his case was not helped by the fact that his record label had fabricated details of his autobiography to give him more ?street cred?, suggesting that he had grown up in poverty in Miami when he had actually spent most of childhood in a relatively affluent Texas suburb.
These questions about race, identity and fakery dominated the media coverage of the case, overshadowing some of the interesting legal principles and royalty issues involved. Ultimately, the dispute was resolved out of court, when Vanilla Ice paid an undisclosed settlement and agreed to credit both Queen and Bowie as co-authors of the track.
However, some commentators argue that this compensation did not go far enough. The essential argument here is that money isn?t everything. Why should respected musicians be forced accept that their creative output has been used in a different context without their consent? Should Vanilla Ice not also have to pay for the reputational damage he did to Bowie and Queen by being associated with the track?
The answer to these questions reveals a fundamental difference between copyright law in the US and in many parts of Europe. In the US, copyright law is designed with the sole purpose of protecting the economic interests of creators, but offers no safeguards over their creative interests.
In the US, Vanilla Ice (or anyone else) can cover any song he likes as long as he enters into a licence agreement in advance or pays a financial penalty afterwards. This is the reason why Neil Young, for example, who is an ardent supporter of Bernie Sanders, cannot prevent Donald Trump using his 1989 anthem Rockin? in the Free World at his political rallies. As long as Trump obtains a license, he is free to use the song. In fact, Trump could release a whole album of Neil Young covers and nobody would be able to stop him, although given his previous musical escapades, his audience might be limited.
When the Republican governor Charlie Christ used the Talking Heads song Road to Nowhere in a YouTube campaign video without permission, he was forced to pay a legal penalty and issue a public apology following an out-of-court settlement. However, this was purely on the grounds that Christ had failed to obtain the proper licence.
In parts of Europe such as France and Germany, however, copyright also allows creators a degree of control over their creative legacy through so-called ?moral rights?. This legal tradition goes all the way back to a revision of the Berne Convention in 1928, which gives creators the right to prevent uses of their work which are offensive to the creator or harmful to their reputation. So the Jonas Brothers might be out of luck if they want to do any Serge Gainsbourg covers and release them in France.
Interestingly, these moral rights continue to apply even if the creator sells the economic rights to someone else. So you can sell the right to commercially exploit a song to a third party, but still retain the right to be credited as the songwriter and to prevent the work being ?distorted or mutilated? without your permission. This reflects a different conception of copyright, which respects both the sanctity of an artist?s creativity as well as their right to commercially benefit from their work.
In future, machine learning algorithms could be paired with distributed ledger technology (DLT) to track which song stems are being used and store a digital fingerprint of remix versions on an immutable ledger. This could be used to automate payment rails via smart contracts so that the relevant rights holders can receive payments far quicker than before. In European territories with copyright systems featuring moral rights, the creator could choose to retain or waive these rights and this decision would reflected in the smart contract for that track. At Utopia Music, we aim to use emerging technologies like DLT, big data and artificial intelligence to ensure that creators receive more royalties and are paid faster, creating an ecosystem where creativity can flourish.
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