Electronic Dance Music, otherwise known as EDM, is revolutionizing the treatment of existing music, resurrecting rave culture from the 90’s, and muddling the world of intellectual property for professionals in the music industry. EDM has inspired heated intellectual property discussions, complicating our understanding of how digitally modified music is used, and how current intellectual property laws can protect it.

Our generation has undoubtedly centered its life on digital technology, and the music industry has not escaped this trend. Music artists now depend on the use of original creative works by other artists as a base-point for their own music. Yes, what I’m talking about is the world of EDM and electronic DJs – e.g. Deadmou5, Tiesto, Avicii, David Guetta, Zedd, Swedish House Mafia, to name a few – making a living (in other words, millions) pumping hard beats, and remixing famous pop songs. While some of these DJs focus on producing music with up-and-coming vocalists, independent of any existing works, many depend on the ability to remix existing music.

Technically these artists take digital versions of original pieces of music and alter them to some extent. They will mix it with other lyrics, loop the chorus, speed up the beat, and present their new, digitally altered music to the public. Under current copyright law, this digital modification of existing music has escaped liability as a permissive use.[1] These DJs, adding their own creativity to the underlying work, argue transformative fair use;[2] emphasizing that their contribution to the work adds an unexpected element, entitling them to the right to use the relevant portion of the underlying work, and evade infringement.[3] This concept centers on the idea that the contribution from the infringer, transforms the underlying work into a product of a new market, so substantially different from the original, that liability for infringement is unjustified. This concept of fair use was utilized to protect works like Andre 3000’s “Rosa Parks” through transformative fair use, and 2 Live Crew’s adaptation of “Pretty Woman” through the fair use of parody.

Fair use has derived substantial debate form intellectual property scholars over the years, and this new field of EDM and its dependence on fair use principles has been the subject of growing controversy. Traditionally, fair use is criticized for its ability to acknowledge that infringement exists, but eliminates liability on this theory of transformative use. Additionally, scholars criticize the open-endedness of the doctrine – it is written in a flexible manner and left open for inclusion of new technical application.[4] Scholars continue to question the applicability of fair use in intellectual property matters, especially in the realm of remixing.

In today’s world, the growing infatuation with EDM has inspired the idea that anyone can be a DJ, and that famous DJ artists are privileged to depend on others’ works to create new masterpieces that dominate the market. Where DJs were protected by the doctrine of fair use, the fame and universal recognition of EDM has posed a threat to the exemption of DJs from copyright liability. As remixed music becomes more popular, the applicability of transformative use dwindles. One of the fundamental understandings of fair use is that the infringer transforms the underlying work in a way that the original creator could have never expected. He brings the underlying work into a new market or a new realm, through his creative contribution. But in a world where EDM prevails, and every artist who makes the Top 40 expects, or even hopes that a DJ will remix their tunes, how is it possible that this digital modification is unexpected? And when the underlying artist expects this transformation, how is the DJ entitled to fair use protection?

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Brittany is a 2L at Loyola Law School, Los Angeles with a focus on Entertainment and Intellectual Property Law. At KHS, she works as both a Law Clerk and Marketing Director.
Brittany wrote this article originally for The Dotted Line Reporter where she works as Managing Writer.

Now that electronic remixing is a defined market in current music culture, the argument is that all remixes should conceptually qualify as derivative works (inherently belonging to the original artist), and added creativity and transformative use are no longer a defense to liability. Although there is no settled conclusion to this debate, EDM’s prevalence in the music world raises several questions that complicate the industry for music producers and artists. Should artists be entitled to create this derivative remix version of their own song? Should music labels that sign DJs be contributorily liable for infringement of the songs they produce and distribute? Should DJs be forced to retain the proper licensing through a blanket-licensing scheme[5] or alternatively, through a compulsory licensing scheme?[6] And, even if the DJ has a license to remix the music, how can he evade infringement of the performance right while playing live? More importantly, how do we protect the integrity of the copyright system, while still making room for digital advancement?

It is only so long before artists take a stance on these potentially infringing uses of their work, and fight to establish their rights where DJs capitalize off their original music. While amateur DJs may hide in their volumes and escape liability, DJs with fame and money are an easy target for copyright infringement suits and should remix music with caution. As the notion of fair use dwindles in this realm of remixing, established DJs should always protect themselves by obtaining licenses prior to remixing music. Although it may seem unnecessary or troublesome, procuring the proper license is a small expense in comparison to the cost of legal representation to battle copyright liability.

Eventually, we must weigh the balance of the benefit derived from EDM – a tremendous source of economic revenue and creation of a new industry – and the problems it creates for the rights of existing artists – presumed entitlement to derivative rights of their own works. In conclusion, this trouble with defining the rights of artists in relation to DJs is just a subset of the growing complications for the digital world, and we must have faith that the market will eventually adapt and dictate what laws shape the industry of EDM in the future.

To view the original article on The Dotted Line Reporter, click here.

[1] Robert Merges, Justifying Intellectual Property, 249 (2011).

[2] Fair Use requires the satisfaction of four factors: (1) that the artwork transforms the character and purpose of the original work, (2) the artwork is artistic, (3) the artwork utilizes only the amount necessary to transform the work, and (4) the artwork creates a distinctive new market from the original work.[3] Id.

[4] Id., at 250.

[5] Emily Harper, Note: Music Mashups: Testing the Limits of Copyright Law as Remix Culture Takes Society by Storm, 39 Hofstra L. Rev. 405, 432 (Winter 2010).

[6] Id., at 432- 3 (explaining how compulsory licensing schemes would force artists to allow uses of his or her music for the purpose of remixing. If the artist does not agree to a price for the use of his or her music, the compulsory licensing scheme would designate a fixed price for the original artist in exchange for use of the music).