The Legal Rundown of a Remix

The Legal Rundown of a Remix

So how can musicians make sure they’re not breaking the law with their remix of another artist’s song?

DJs and other artists often remix preexisting music, taking advantage of the popularity and structure of previously recorded songs to create something new, though typically derivative. Taking someone else’s work and using it for one’s own artistic gain is, as previously mentioned, an iffy proposition, but is popular among musicians of a certain variety.

Permission the best defense

The best way to ensure that it is legally OK when it comes to remixing another artist’s work is to simply ask permission from the owner of the master. This offers musicians the best route to avoid legal trouble, though it is smart to retain copies of all communications just in case. However, sometimes the owner will deny permission, which is one reason why some artists choose to remix music without permission.

Technically, the practice of remixing a song without permission is a copyright violation. However, artists can choose to cite fair use. This means that the remix is not derivative of the original work, but instead builds on it to create something new and original, Spin Academy explained. There is no way of knowing exactly how a court will rule in these cases though, which means musicians who use this argument to defend their remixes are taking a chance.

Obtaining A “Remix” License (Updated – Section Added 3/14/2023)

Artist should be mindful of the important licenses and permissions that may be needed to create remixes and other derivative works from pre-existing sound recordings and compositions.  Generally, a “remix” is a unique sound recording created by incorporating pre-existing stems or music and creating what becomes a new track by altering pitch, tempo, and other characteristics.  If a producer or artist seeks to commercially exploit a remix, the producer or artist is required to obtain permission from relevant rights holders, including, among others, the owners of the copyright to the pre-existing sounds or music.  

Although the licenses required in each case is fact and track specific, obtaining permission or a license from the songwriter, publisher, record company, original artist, is required in most cases. As discussed in greater detail here, each sound recording has two associated copyrights and each copyright may have different owners.  For example, the rights holder of the copyright to the musical composition may be different than the rights holder of the specific sound recording a producer or artist may be incorporating the remix.  There are exceptions to the license requirements, but such exceptions including, among others, certain “fair use” exceptions will be the subject of a subsequent blog. 

The first step to clearing licenses for use in remixes is to run a search on the major Performing Rights Societies (or “PROs”) databases, such as the ASCAP ACE Database for example, which typically identify and provide contact information for the publisher of the music or song.  These databases also list the performers of a particular song.  Next, streaming platforms and services such as Spotify, Apple Music, and SoundCloud also provide related artist details that may assist in identifying the rights holders of a particular song or composition. Once you have identified the appropriate rights holders, producers or artists must contact each rights holder to obtain a license.  In most cases, the rights holders (e.g., record label or publisher) will likely want to hear the remix and the manner in which the artist or producer intends on incorporating the original work into the remix as either as a sample, interpolation, or other such use.  Depending on the proposed use, the rights holders with either grant or reject a license request.  If rights holders refuse to grant a license, a producer or artist my choose to avail themselves of the “compulsory license,” which allows for the use of another’s copyrighted material so long as certain steps and royalty payments are made.  However, the rule of thumb and key takeaway is that record producers, artists, and any other person or entity looking to use copyrighted music should identify the various rights holders and should, in all cases, seek to obtain a proper license. 

The terms and conditions of licensing agreements for remixes and other works vary dramatically and are always subject to negotiation between the rights holders and the producer or artist.  For example, in some cases, the original artist will seek ownership of the entirety of the copyright to the remix and the master recording.  With respect to royalties, some rights holders prefer flat fee models, while others may opt for a split or royalty sharing arrangement.  When licensing music for use in a remix or other derivative work, it is imperative to thoroughly review the agreement and to understand how the terms and conditions of the license.  It is important that the producer or artist clearly understands what can, and cannot, be done with the remix under any license.   A careful and thoughtful review and understanding of the terms of any license agreement is important because inadvertent or unintended copyright infringement can lead to prolonged and expensive litigation in federal court. 

For example, a DJ named Arty recently  lost a copyright infringement lawsuit which alleged  that fellow artist Marshmellow’s 2018 hit “Happier” borrowed material from his 2014 remix of OneRepublic’s song “I Lived.” The Ninth Circuit held that because Arty’s licensing agreement with Interscope expressly stated that held no copyright interest or ownership in the copyright to the remix, Arty was not permitted to bring suit for copyright infringement.  As discussed, in this case as with many others, the terms and conditions of the license agreement govern. 

Live sets also raise issues

Another issue that may arise for DJs who specialize in remixes is playing their songs live at clubs or bars. A license for performance rights is typically required, according to FindLaw. However, musicians are not usually expected to pay for these permits – that is the responsibility of the venue. DJs should check up on performance rights at bars or clubs before they perform, to avoid any sort of legal situation regarding their sets.

Key Takeaway

Any DJ, producer, artist, or other creative looking to place his or her own spin on a classic song should be mindful of obtaining a proper license for such use, especially if the remix will be exploited for commercial gain.  Failing to secure all requisite licenses may subject the remixer, artist, or producer to costly and prolonged litigation and potential copyright infringement lawsuits. 

The attorneys of Scarinci Hollenbeck’s Intellectual Property Group have decades of combined experience representing artists, songwriters, composers, publishers, record labels, and other creatives  in the music industry. We encourage all artists and creatives to reach out to us with any questions and we are always ready to assist you.