Fair Use and Electronic Dance Music: Will the Availability of Music Altering Applications Cause a Shift How Courts Assess Copyri

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FAIR USE AND ELECTRONIC DANCE MUSIC: WILL THE AVAILABILITY OF MUSIC ALTERING APPLICATIONS CAUSE A SHIFT HOW COURTS ASSESS COPYRIGHT VIOLATIONS? 46 RUCTLJ 22 | Bradley Fenniman | Rutgers Computer and Technology Law Journal

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Rutgers Computer and Technology Law Journal 2020

Note Bradley Fenniman

FAIR USE AND ELECTRONIC DANCE MUSIC: WILL THE AVAILABILITY OF MUSIC ALTERING APPLICATIONS CAUSE A SHIFT HOW COURTS ASSESS COPYRIGHT VIOLATIONS?

Abstract 22 I. Introduction 23 II. The Law 26 A. What Is Copyright? 26 B. Fair Use And Sampling 28 C. The Courts' Views on Fair Use Concerning Remixes, Mixes, and Live Performances 33 III. The transformation of the music scene should lead to courts favoring the transformative prong of 35 fair use. A. Where the Courts Stand Now 35 B. The Grey Album: A Case Study 38 C. What is a Bright-Line Rule Favoring the Transformative Prong in Electronicmusic? 41 D. Why is a Bright-Line Rule Favoring the Transformative Prong Good Formusic in the 42 Electronicmusic Era? 1. It Will Promote Creativity 42 2. A Bright-Line Transformative Rule Eliminates Uncertainty 44 IV. Conclusion 45

ABSTRACT

This Note will discuss the copyright implications of DJs and electronic music producers' use of sampled music in live performances, as well as music production. It will mainly focus on *23 various courts analysis of the four prongs of the Fair Use Act, and how they weigh different prongs heavier than others. Electronic music live performances and production heavily uses the works of others, a departure on normal live music performances where a band spends 90% - 100% of the time playing their own music. In today's era, a concert goer might go to an electronic music show and only hear 6 or 7 songs made by that producer. I will discuss how the courts should weigh these factors in analyzing the four prongs of Fair Use. It will discuss how the wide availability of tools that electronic music producers have that can distort sampled music has made the transformative property of Fair Use easier to obtain over the last 30 years. Ultimately, this Note will make the argument that courts should favor the transformative prong in determining fair use in electronic music because of the normalization of using other artist's works in live performances and because of the applications that make music alteration readily available.

I. INTRODUCTION

Electronic Dance Music, commonly referred to as “EDM,” is a genre of music that employs the use of computers and other technological instruments in its creation.1 Music has been electronically produced for the past 50 years, with the creation of the Moog synthesizer,2 but EDM only gained its popularity recently.3 In the early days of electronic music, producers used new technology like the Moog synthesizer and the Telharmonium4 to reproduce

*24 already created works, instead of creating new songs.5 In today's era, producers use computers, microphones, electronic oscillators to record, alter, and playback electronically created music.6

The birth of EDM started in the 1970s with Disco club music.7 Electronic music pioneer Giorgio Moroder made a major contribution to the EDM that we hear today by popularizing the use of electronic sounds with repetitive percussive beats.8 This paved the way for the “rave scene”9 in Germany with the popularity of house, acid house, and techno. These subgenres of EDM are created using elements from many musical genres like jazz, disco, R&B and many more.10 House music and other subgenres of EDM are created with repetitive percussion and high hats combined with smooth bass lines and melodies all on a computer.11 EDM and EDM subculture began to blossom in the 2000s with the help of social media websites like YouTube and SoundCloud.12 Artists like Skrillex paved the way and started to popularize live performances, transforming the underground subculture in to mainstream popularity.13 With EDM on the world stage, producers were sampling music in their own work and performing live with other artist's work in the form of samples on a massive scale.14

*25 Sampling is a major component of creating electronic dance music.15 Sampling sound is the act of taking small sound bites or “clips” from other creative works and incorporating them in to a new piece of music.16 This is encompassed in new songs as well as live performances. It is an incredibly common production tool that electronic music producers use to enhance their own creation.17 Sampling is popular in electronic music production because of its availability in the digital era.18 The author of What Is Electronic Music? put it plainly stating “[w]ith the proliferation of digital production technology, the creative possibilities of sampling are virtually endless.”19 No longer does a producer need to hire musicians for vocals for other musical elements.20 One can simply download sample packs online and chop and break beats in countless combinations until their creation is complete. However,

DJs and producers can face legal claims if they do not obtain the rights to use the sampled works or cannot claim fair use.21 DJs can legally sample other works of art if they can successfully assert an affirmative defense of fair use under 17 U.S.C. § 107.2217 U.S.C. § 107 highlights four elements that the court can weigh to determine fair use: the purpose and character of the use; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work.23 These enumerated elements act as a defense to an infringement claim in order to allow courts to avoid stifling the artistic creativity and ingenuity that copyright law was meant to protect.24

*26 II. THE LAW

A. What Is Copyright?

Title 17 of the United States Code gives creators the unfettered rights to use their own creations however they choose.25 Title 17 encompasses all of United States copyright law, including amendments and the Copyright Act of 1976.26 The purpose of the copyright act is to incentivize creators to do exactly that, create.27 Furthermore, 17 U.S.C. § 102 notes that musical works and sound recordings are copyrightable, and therefore the unauthorized use could lead to an infringement suit.28 Similarly, Title 17 incentivizes musicians to seek approval to use others' works so that they do not face infringement.29

Electronic music producers use samples as a tool to enhance their own creation because it ads layers and complexity to their music.30 Copyright law gives musicians exclusive rights to these samples in the form of their original

© 2020 Thomson Reuters. No claim to original U.S. Government Works. 2 FAIR USE AND ELECTRONIC DANCE MUSIC: WILL THE..., 46 Rutgers Computer... creation.31 For this reason, if a musician wishes to borrow the creations of another artist, it is wise to obtain the permission from the creator or the borrower could face an infringement lawsuit.32

The process for obtaining permission to use a sample is called “sample clearance.”33 Sample clearance is not always required, but if a musician wishes to distribute his work to the public, sample clearance is a must.34 Typically DJs do not have to worry about *27 getting sample clearance for playing a live performance.35 This is mainly because it is an industry standard for a club/venue owner to clear the rights with the original creators.36 However, DJs sometimes record their live performances and put them on various websites like “Soundcloud” for fans to listen to.37 While these mixes are not distributed for monetary gain, artists still need to clear all of the samples before they can distribute.38 For example, dubstep pioneer, Excision, played at Shambhala Music Festival in August of 2016, but did not release his recording of his performance until one month later.39 This is because out of his 87 song performances, he only owned the rights to 17 songs, requiring sample clearance for 70 songs.40

Musicians will need sample clearance if they wish to distribute copies to the public, especially if there is monetary gain.41 For example, electronic music producer, Bassnectar, would have needed to clear the sample to remix Ellie Goulding's track, Lights.42 Furthermore, EDM producers like Bassnectar, face higher scrutiny when remixing, as opposed to sampling because of protections from Title 17.43 Remixing a song fits nicely in to what Title 17 defines as a “derivative work.” “A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work *28 of authorship, is a “derivative work”.”44§ 106(2) gives the original creator exclusive rights to derivative works. A remix of a song fits in to the definition of a derivative work squarely because by definition it is an adaptation of the original.45 Title 17 effectively highlights the multiple protections that creators have and therefore the multiple vulnerabilities EDM producers face in remixing and sampling music.

B. Fair Use and Sampling

The focal point of this paper will be surrounding fair use, and how judges analyze factors in determining fair use. The fair use portion of 17 U.S.C. is found in § 107.46 The Fair Use doctrine of Title 17 focuses on four factors.47 The four factors are:(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;(2) the nature of the copyrighted work;(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.48 This paper will focus mainly on the first and the fourth prong of fair use. The first prong is informally known as the transformative prong.49 The transformative prong is important because it focuses on if a creation was transformed by adding expression, versus merely being copied.50 Courts look to see whether works merely supersede the original work or if “instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is ‘transformative.”’51

*29 Furthermore, the transformative prong analyzes whether the borrower has added value to the creation by transforming it.52 Essentially, the transformative prong helps courts analyze if the original creation has been materially altered enough that the borrower's use of it is now fair.53

When determining fair use, courts also often look at the fourth prong of § 107.54 The forth prong (herein market effect) assesses whether the new creation deprives the original creator of income or undermines a potentially new market for the copyrighted work.55 This means that DJs can walk a thin line when sampling other's works depending on what samples they choose to use. A DJ could make the argument that using a sample from a film has little market impact because it is being used for electronic music, and not the film industry. Furthermore, when assessing the market impact, courts “consider not only the extent of market harm caused by the particular actions of the alleged infringer, but also “whether unrestricted and widespread conduct of the sort engaged in by the defendant ... would result in a substantially adverse impact on the potential market.”56 For this reason, a new creation must be far removed from the original creation's market.57

Moreover, fair use incentivizes EDM producers to obtain authorization for their samples.58 The incentive derives from a DJ potentially having to face an infringement claim if they do not obtain authorization.59 While incorporating a sampled work directly in to a new piece of art without clearing the sample with the creator would be a clear violation of 17 U.S.C. § 102, a remix poses a difference scenario.60 A remix is an altered version of an original *30 work that still resembles the original audio file.61 Remixes can be a reworked version that includes additional or subtracted elements or simply just a version that has had the tempo changed.62 Even the slightest alteration to an original track can constitute a “remix.”63 Remixing has become increasingly popular in the electronic era with the advent of technology that makes remixing easier.64 Namely, easily accessible synthesizers allowed producers to create and alter tracks electronically.65 DJs can now easily download various programs like Traktor, Serato, or Ableton Live that allow them to mix and alter any song in their library.66

A remix of another song fits the definition of a “derivative work.”67 “A ‘derivative work’ is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.”68 One can fit a remix in to the definition of a derivative work by picking apart exactly what a remix is. When starting a remix, a producer downloads an MP3 file found on the internet that comes in the form of “stems.”69 Stems are individualized layers of sound that *31 can come in the form of basslines, synths melodies, vocals and any other musical component.70 Producers can essentially add an unlimited number of stems to a song that have been transformed or added to.71 Modification of stems to make a remix has become increasingly simple and versatile in the digital era as “there are hundreds of easily downloadable plug-ins to modify the sound of the layers--adding reverb, compression, panning, brightness, distortion--the overall “mix” becomes extremely subjective and depends on the taste of the person “mixing” the track”.72

Because remixes are created by taking the stems of a preexisting work and then transformed in to a new creation, they firmly fit in to the definition of a derivative work.73 Therefore, producers need to be careful as to avoid legal trouble. As DJ and producer MartyParty warns, producers who put uncleared samples in to music and release them on platforms like YouTube and Soundcloud will often get a warning or error message letting the user know that somebody else owns the rights to the sample used.74 In his own words, “The software is getting really smart!” indicating that this happens automatically without the original owner having to comb through thousands of songs to find a fraudulent use.75

DJs might think that putting uncleared samples in to a mixtape on a website like Soundcloud would avoid copyright infringement because it is not a commercial use, but this is a common misconception.76 A mixtape is a compilation

© 2020 Thomson Reuters. No claim to original U.S. Government Works. 4 FAIR USE AND ELECTRONIC DANCE MUSIC: WILL THE..., 46 Rutgers Computer... of various songs and *32 samples that are combined in to one continuous audio file.77 The misconception amongst DJs is that since there is not a commercial value to a mix because it is being distributed for free, then it is fair use.78 Yet, this is incorrect because while the production is free and nobody is profiting off of it, since the original artists' works are open to the public, it can potentially reduce profits for that original artist.79 Lots of DJs make mixtapes to showcase their mixing skills. It is easy to conceptualize a scenario where a popular song is used in many mixtapes from many up and coming DJs.80 Where a producer's song is being listened to thousands of times, it is also easy to conceptualize how this would take away profits from the original artist.81 This could be a direct implication of the fourth prong of fair use: “the effect of the use upon the potential market or value of the copyrighted work.”82

Fair use is an affirmative defense.83 This means that the proponent of the fair use defense carries a large evidential burden regarding market impact.84 To launch a successful defense, the proponent would probably need to prove sales in a relative market, and lack of sales in the originators' market.85 Similarly, the proponent could try to show that listeners of the new work did not take away listeners from the original work. However, proving statistics such as these would be incredibly demanding and carry a *33 high burden. This poses liability to the thousands of SoundCloud DJs that are trying to make a name for themselves.

C. The Courts' Views on Fair Use Concerning Remixes, Mixes, and Live Performances

Producers and DJs who create remixes, or create live remixes need permission from the owner to use the original work because they have created a derivative of the original.86 Without permission, a DJ would be infringing on the owner's rights.87 However, DJs can look to the Fair Use exception rule. When looking at Fair Use in the context of a remixed track, all four prongs of fair use need to be analyzed.88 Where the first prong looks at the purpose of the derivative, courts look at if a remix has progression or commentary on the original work.89 Courts will also look at what the availability of the original work at the time of the remix was.90 DJs will face an uphill battle if their remix is based off of an unreleased song as copyright laws aim to protect the original creator's decision-making process.91 The third prong assesses how much of the original work was used.92 Courts will favor a track that has simply taken a synth line or bass line from an original and added multiple stems to it as opposed to simply adding a few vocals to an original.93 The fourth prong analyzes if the remix has diminished the value of the original song.94 When assessing the fourth prong, the court is looking less at *34 if the reasonable and average consumer is more likely to buy the remix over the original, and more at whether the remix is likely to take away licensing opportunities away from the original creator.95 Yet still, there is leniency within copyright law.96 While the law's primary intention is to protect the original creator's work, it is not meant to the work off from the world at large.97

Courts continuously have recognized that technological advances shift the analyzation of fair use.98 This is because new technology and new popularity spawn new issues of copyright.99 Electronic Dance Music has exploded with popularity over the last decade, with artists like Skrillex going from 700,000 followers in 2011 to 19 million followers today.100 With EDM swiftly gaining popularity, it is important for courts to look at fair use through new contexts. With DJ and production programs being easily obtainable, and new copyright search software becoming “smart”101 as MartyParty said above, courts should analyze the four fair use *35 prongs in light of this technological wave. Mainly, because copyright laws, and therefore fair use, were developed well before the days of sampling and remixing, courts have to mainly rely strictly on interpretations in light of vastly different technology and the scenarios they present.102

III. THE TRANSFORMATION OF THE MUSIC SCENE SHOULD LEAD TO COURTS FAVORING THE TRANSFORMATIVE PRONG OF FAIR USE

A. Where the Courts Stand Now

The first of such cases to take up the issue of copyright infringement was Grand Upright Music, Ltd. v. Warner Bros. Records.103 The United States District Court for the Southern District of New York case is about the infringed use of the song “Alone Again (Naturally)” by Raymond “Gilbert” O'Sullivan.104 In Grand Upright Music, the owners of Alone Again (Naturally), claimed that Defendant rapper Biz Markee infringed on their rights when he sampled three words and the accompanying music behind them from Alone Again (Naturally) in his song Alone Again off the album “I Need A Haircut.”105 The defendant's argument that it is customary in the music industry fell flat.106 The Court in Grand Upright Music granted Plaintiff's injunction request, setting a bright-line rule that a license must be obtained for even a small sample.107 However, in 1991, defendant Warner Bros. did not launch a fair use defense, leaving future courts to tackle the complex issue.108

*36 Courts generally have left a fair use defense of remixing and sampling in electronic music at a level of uncertainty, at best.109 The Court in Bridgeport Music, Inc. v. Dimension Films, a key case in analyzing fair use of sampling music, addresses the issue of whether a 2-second sample of an original work that is looped and extended to a point unrecognizable to the listener surmounts to an infringement claim.110 Specifically, “[a]ccording to one of plaintiffs' experts, Randy Kling, the recording “100 Miles” contains a sample from that guitar solo. Specifically, a two-second sample from the guitar solo was copied, the pitch was lowered, and the copied piece was “looped” and extended to 16 beats.”111 The Bridgeport court rejected a di minimis argument made by defendant.112 The Court when on to say “The heart of Westbound's arguments is the claim that no substantial similarity or de minimis inquiry should be undertaken at all when the defendant has not disputed that it digitally sampled a copyrighted sound recording.”113 This statement forces a stricter test when the claim pertains to a remix. In fact, producers really only have two defenses in sampling and remixing: the de minimus defense and Fair Use.114 The courts should favor a transformative prong over the de minimus defense entirely because in electronic music, the producer can take a 2 second clip from another song and turn it in to the loop of the entire track using ableton.115 Because of *37 this, the courts would almost be factoring transformation in to the de mimimus use defense thus confusing the issue. In rejecting a di minimis defense, the court urges producers to come up with more creative methods of using copyrighted works without paying expensive licensing fees. Furthermore, the Court noted that in light of technological advances that there is no cut and dry way to determine fair uses of sampling.116

The courts need to determine a test that allows for the integration of new remixing and sampling technology. The most effective way to regulate fair use cases in electronic music is to favor the transformative prong of fair use within Title 17. This is because, where courts weigh the transformation of electronic music remixes and sampling heavier than other factors, thus promoting fair use, there will be an incentive for producers to continue to be creative where they can use new technology but seek a license where they cannot. If the courts favor the transformative prong, it will create a narrower test for producers of electronic music. In light of new technology117 that makes transforming samples quite easier than in the 70s, 80s, and 90s, the courts will need to raise the standard on transformation. This will push artists to either 1: take samples and transform them to the point almost or completely unrecognizable or 2: obtain a license to use the copyrighted work. This will push further creation while simultaneously strengthen the protections afforded to the original creators.

The courts should focus on adopting a bright-line test in heavily weighing the transformative prong of fair use because without it leaves a large uncertainty for electronic music producers who create remixes. Furthermore, the courts should equally weigh the market value of the remix. If the remix or use of sampling is equally as *38 transformative and affects an entirely different market, for example remixing a rap song in to an electronic music song, the courts should favor fair use. Market value should be factored in when an artist produces the song for no gain, as if very popular in the electronic music scene.118 Focusing on fair use for free music, in the form of mixes or live performances will enable new artists to pursue their creativity and build their careers. Electronic music producers are already running the gambit by making a fair use defense, as the de minimis defense is clearly not an option. However, the court in Campbell stated that “[t]he task is not to be simplified with bright-line rules, for the statute, like the [1965] doctrine it recognizes, calls for case-by-case analysis.”119 By asserting that fair use analysis of remixing should be done on an ad-hoc basis is essentially passing the buck.120 Without a bright-line test, electronic music producers are left in a situation where they are uncertain of the legality of their creations from the start.

B. The Grey Album: A Case Study

In 2004, the production of The Grey Album by music producer DJ Danger Mouse brought remixing in to the public spotlight.121 Danger Mouse combined an acapella version of Jay Z's The Black Album122 with The Beatles' The White Album and released it for free online. Danger Mouse recognized that stealing music was wrong and *39 never had the intention to profit off of The Grey Album because he knew he could not release it commercially.123 However, EMI, the owners of the Beatles, The White Album, still sent Danger Mouse a cease and desist nonetheless.124 While Danger Mouse only ran a limited production, one organization wanted to make a public statement concerning the matter.125 Downhill Battle, a non-profit music activism organization, launched the project “Grey Tuesday,” which was an effort that led 170 websites to make over 100,000 copies of The Grey Album available for free download in one day.126 Such a dramatic response to a cease and desist on a free album shows the value that the music industry holds for remixers and creators.127

If courts favored the third and fourth prongs of fair use back in 2004, we may have seen a different scenario play out. If Danger Mouse knew that he may have had a fair use defense because he did not intend on distributing The Grey Album for profit it is possible that EMI would not have been involved at all and Downhill Battle would not have made an aggressive response in promulgating the free download of the album. A scenario such as this presents a more peaceful realm of creativity. While the ends do not justify the means, Danger Mouse came out on top where EMI stopped pursuing legal action after sending the cease and desists, even after releasing a remastered version128 of The Grey Album.129 Danger Mouse went on *40 to say “I think that the world and how music is perceived and received is very different in 2012 than it was in 2004.”130 Danger Mouse would agree that the way music is perceived in 2019 is very different than 2012, and it will be extremely different in 2030 etc. as technology continues to progress and make music transformation easier and more readily available. Instead of analyzing cases on an ad-hoc basis, the courts should favor the third and fourth prong of fair use over the first two because they are more applicable in the digital age.

The third prong, also referred to the transformative prong, and the fourth prong, referred to as the market affect prong, are more applicable to the digital age of electronic music production because we often see DJs creating remixes and then performing them live. Where venues pay a blanket royalty fee to the major music production companies, the artists individually are not profiting off of playing someone else's (or a remix of someone else's) production.131 Thus favoring the third and fourth prongs of the fair use doctrine would potentially influence a

© 2020 Thomson Reuters. No claim to original U.S. Government Works. 7 FAIR USE AND ELECTRONIC DANCE MUSIC: WILL THE..., 46 Rutgers Computer... shift in industry standards and allow further freedom for artists to play their remixes and the music of others. Furthermore, the courts should expand on the idea that:

“The central purpose of this investigation is to see ... whether the new work merely supercedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is transformative.”132

We are beginning to see more decisions that are favoring transformations in works of art, be it music or physical art.133 In *41 Cariou v. Prince the United States Court of Appeals for the Second Circuit held that 25 out of 30 altered works of art were by artist, Prince (not to be confused with the musician Prince), did not infringe on the original artists rights because they were transformative enough.134 Specifically, the court in Cariou makes it explicitly clear that they favored the fact that Prince “transformed those photographs in to something new and different” was a heavily favored factor.135 This indicates a hopeful shift in the courts views on fair use in understanding the importance of creating new works of art. Where the lower court in Cariou held Plaintiff accountable, finding that Prince took more than what was necessary, the Second Circuit reversed holding that what is “necessary” is not a requirement at all.136 The court stated they consider the quantity of materials taken, but more importantly their “quality and importance” to the original work.137 This is exciting for electronic music producers as it favors the art of sampling and remixing by focusing on the barebones nature of a remix: the amount the song has been transformed.

C. What is a Bright-Line Rule Favoring the Transformative Prong in Electronic Music?

Measuring transformation in electronic music is relatively simple and is the main reason why courts should favor the transformative prong when determining fair use. Every song that is produced electronically has many measurable elements that can be compared and contrasted.138 For example, electronically produced songs include measurable four-beat bass drums, high hats, claps, and numerous synthesizers.139 Some songs have drops, some do not, the possibilities are endless.140 The umbrella term “EDM” means a song *42 that encompasses the first three elements, the kick/bass drum and a downbeat (high hats and claps).141 Because “EDM” songs are created in this fashion, measuring the amount of transformation is easily obtainable.

If courts are able to measure the transformation between electronically produced songs with ease, they should be able to set a bright-line transformative rule that will indicate fair use to a new creator. This will not only promote creativity by forcing a producer to bring value to the original song, but will at least give an indicator to the producer on whether or not they should spend the resources trying to obtain the right to sample or remix.

D. Why is a Bright-Line Rule Favoring the Transformative Prong Good for Music in the Electronic Music Era?

1. It Will Promote Creativity

Given the availability of programs on the internet that allow electronic music producers to get creative,142 a bright-line rule favoring the transformative prong of fair use will allow for artists to promote their creativity online by releasing more music than they would have been able to without a bright-line rule. For example, the website Bassgorilla offers over 5,000 free sample packs to download.143 With many legitimate production tools

© 2020 Thomson Reuters. No claim to original U.S. Government Works. 8 FAIR USE AND ELECTRONIC DANCE MUSIC: WILL THE..., 46 Rutgers Computer... and thousands of sample packs to download the possibility of creation is endless with electronic music production. If the court adopted a bright-line *43 rule favoring the transformative prong of fair use it would allow artists to more freely distribute their music.

Furthermore, unless a person has a huge following that actually buys electronic music albums, like Bassnectar or Skrillex, there is not a lot of money made in releasing music in the electronic music scene.144 Since there is not a lot of money to be made in releasing music, electronic music producers should not be as concerned with other producers using their music to create remixes and promote their own brand. Furthermore, without the aspect of money, the market share prong of fair use is diminished, thus upholding the importance even further of adapting a bright-line rule involving the transformative prong. In fact, it is common practice in the electronic music community for producers to put out stems of their songs so that other producers can make the highest quality remixes their brains can create.145 This form of sharing music stems to promote creativity amongst fellow producers has been popularized on social media.146 The utilization of Facebook allows for a robust atmosphere for sharing music.147 In fact, Facebook is taking measures to make *44 sharing music even easier.148 The courts should adopt a fair use policy that allows for such adaptation of technology. This notion advances the intentions formed in Campbell.149 The advancement of technology allows for artists to have more tools at their discretion that will add value to originally created works.

In the new age of electronic music, major DJs expect their music to be remixed.150 This brings a challenge to new producers as digital modification is expected. It pushes the boundaries for producers because if courts favor the transformative prong, then they know that they will have to bring something new and special to the original work or they will lose in a legal battle.

2. A Bright-Line Transformative Rule Eliminates Uncertainty

Many electronic music producers begin their careers as DJs by bootlegging because it is easy.151 They then may move on to remixing and eventually creating their own original music as their skills progress.152 However, where the caselaw stands today, the producer does not have a clear picture of what may be allowed and what may not (besides simply obtaining a license).153 An update to the copyright law would make it clearer for producers and easier to navigate.154 Remix proponent, Lawrence Lessig, recently made some suggestions that would make the 1970 law easier to navigate, one is of utmost importance and a creative solution: “(1) deregulating noncommercial amateur remix[ing] by making it fall outside of copyright law.”155 This idea aligns with a bright-line transformative *45 rule because it gives up and coming producers greater protection while also allowing promoting creativity. Every music scene starts out with amateurs, the electronic music scene is no different.156 It is important that the pathway to creativity and success is clear for said amateurs as it has become easier and more accessible for youth to download a program and learn how to remix and sample.157 It should be stressed that these youth are not caught up in litigation while they are trying to begin a career in music production.

IV. CONCLUSION

The Copyright Act has been in effect since 1976.158 Music has developed in more ways than were imaginable since its inception. There need to be laws that adapt to music in the technological era. The music scene and technology were dramatically different when the copyright laws were created. The malleable nature of the law allows for the courts to shift emphasis on different legal doctrine as momentous changes are made to various industries. The music industry is one of such that needs changing.

Music sharing and music production has been made easy and available. It is only right that the laws that can stifle or promote the production of such music are able to adapt with the times. Adopting a bright-line rule favoring the transformative prong of Fair Use does just that. Favoring the transformative prong of fair use adds legal argument to creativity, which is the exact backing that producers need in the digital age.

Footnotes 1 John Misachi, What Is Electronic Music?, World Atlas (Apr. 25, 2017), https://www.worldatlas.com/articles/what-is- electronic-music.html.

2 Id.

3 Caroline Grigoriev, The History of EDM,JMC Academy(Nov. 21, 2015), https://www.jmcacademy.edu.au/news/the- history-of-edm.

4 Jay Williston, Thaddeus Cahill's Telharmonium, Synthmuseum, http://synthmuseum.com/magazine/0102jw.html (last visited Oct. 5, 2018). The Telharmonium was invented in 1901 by a lawyer in Washington, DC and is considered to be one the first electronic music instruments (The Telharmonium is a large, organ-like device that used electricity to amplify sound. This was the first instrument in this era to use electricity for music production. The first telharmonium weighed 7 tons).

5 Misachi, supra note 1.

6 Misachi, supra note 1.

7 Grigoriev, supra note 3.

8 Grigoriev, supra note 3.

9 Sarah Stanley-Ayre, Top 10 rules of the rave: A guide to underground dance party etiquette, City Pages (Feb. 11, 2014) http://www.citypages.com/music/top-10-rules-of-the-rave-a-guide-to-underground-dance-party- etiquette-6648523 (The term “rave” refers to underground parties that embody EDM subculture. Raves are gatherings of people who enjoy EDM and go to see DJs perform).

10 Ron Slomowicz, Ask the DJ - House Definition, LiveAbout. (Jan. 29, 2016), https://www.liveabout.com/ask-the-dj- house-definition-1012629.

11 Id.

12 Caroline Grigoriev, The History of EDM,JMC Academy(Nov. 21, 2015), https://www.jmcacademy.edu.au/news/the- history-of-edm.

13 Id.

14 See John Misachi, What Is Electronic Music?, World Atlas (Apr. 25, 2017), https://www.worldatlas.com/articles/what- is-electronic-music.html.

15 Glenn Jackson, Modern Approaches: Sampling, Red Bull Music Academy Daily, (July 26, 2016), http:// daily.redbullmusicacademy.com/2016/07/modern-approaches-sampling.

16 Id.

17 Id.

18 Id.

19 Id.

20 Id.

21 See17 U.S.C. § 107 (2020).

22 Id.

23 Id.

24 Campbell v. Acuff Rose Music, 510 U.S. 569, 577 (1994).

25 See17 U.S.C. § 106 (2020).

26 See generally id.

27 See id.

28 Id.

29 See17 U.S.C. § 106 (2020).

30 See How to Creatively Use Samples, MMMMAVEN (July 20, 2015), https://mmmmaven.com/2015/07/20/how-to- creatively-use-samples/.

31 See17 U.S.C. § 101 (2020).

32 See id.

33 Richard Stim, When You Need Permission to Sample Others' Music, Nolo, https://www.nolo.com/legal-encyclopedia/ permission-sampled-music-sample-clearance-30165.html (last visited Oct. 15, 2018).

34 Id.

35 Id.

36 Brett Snider, Is It Illegal to Remix Music?, FindLaw (Aug. 31, 2013, 6:45 AM), https://blogs.findlaw.com/ law_and_life/2013/08/is-it-illegal-to-remix-music.html.

37 See Stevo, Excision Drops the Highly Anticipated Shambhala 2016 Mix Compilation, edmsauce (Sept. 14, 2016), https://www.edmsauce.com/2016/09/14/excision-shambhala-2016-mix/.

38 Stim, supra note 33.

39 Stevo, supra note 37.

40 See id.

41 Stim, supra note 33.

42 SeeEllie Goulding, Lights (Bassnectar Remix) (Amorphous Music 2011).

43 See17 U.S.C. § 106(2) (2020).

44 See17 U.S.C. § 101 (2020).

45 See id.

46 17 U.S.C. § 107 (2020).

47 Id.

48 Id.

49 Richard Stim, Measuring Fair Use: The Four Factors, Stanford University Libraries, https://fairuse.stanford.edu/ overview/fair-use/four-factors/#the_transformative_factor_the_purpose_and_character_of_your_use (last visited Oct. 17, 2018).

50 Id.

51 Campbell v. Acuff Rose Music, 510 U.S. 569, 579 (1994)

52 Id.

53 See id.

54 SeeSony BMG Music Ent'mt v. Tenenbaum, 673 F. Supp. 2d 217, 226 (D. Mass. 2009).

55 Stim, supra note 49.

56 Campbell, 510 U.S. at 590.

57 See id.

58 See17 U.S.C. § 107 (2020).

59 See id.

60 See17 U.S.C. § 102 (2020).

61 See Simon Langford, The Remix Business: Part 1, SoundonSound (Jun. 2009), https://www.soundonsound.com/ techniques/remix-business-part-1. (Remixes have been around as early as the 40s but were popularized in the 60's and 70's with the introduction of dancehall music; Remixing was further popularized by the disco era. DJs became frustrated with having to change tracks over throughout their sets, so they developed extended versions of the original song to keep the dancers on the dancefloor).

62 Id.

63 See id.

64 See id.

65 See id.

66 See Si Truss, Best DJ Software: 10 apps recommend, Techradar (Feb. 27, 2013), https://www.techradar.com/news/ software/applications/best-dj-software-10-apps-we-recommend-1134266.

67 See17 U.S.C. § 101 (2020).

68 Id.

69 MartyParty, Everything You Always Wanted To Know About Remixes, But Were Too Afraid to Ask!, VICE (Oct. 4, 2013, 6:00 PM) https://thump.vice.com/en_us/article/4x8ywj/everything-you-always-wanted-to-know-about-remixes- but-were-afraid-to-ask.

70 Id. Stems can consist of almost any musical component involving rhythm and sound such as guitar lines, drums, multiple vocals, digital recordings, analog records, and individual chords. Stems are the meat and bones of a song created digitally.

71 See id.

72 Id.

73 See17 U.S.C. § 101 (2012).

74 MartyParty, supra note 69.

75 See id.

76 Max Foreman, How Music Copyright Works: Sampling, Covers, Mixtapes & Fair Use, Pro Audio Files, (Mar. 22, 2018), https://theproaudiofiles.com/music-copyright/; see also Scott Wilson, 21 Great Free Sample Packs for Producers on a Budget, FactMag (Mar. 25, 2017), http://www.factmag.com/2017/03/25/best-free-sample-packs-download/.

77 See Bassnectar - Immersive Music Mixtape - Side One, SoundCloud, (Jul. 29, 2013) https://soundcloud.com/bassnectar/ bassnectar-immersive-music-1.

78 Max Foreman, How Music Copyright Works: Sampling, Covers, Mixtapes & Fair Use, Pro Audio Files, (Mar. 22, 2018) https://theproaudiofiles.com/music-copyright/.

79 See id.

80 Ravenscoon's “Wrapped in a Dream” Mix, SoundCloud, https://soundcloud.com/ravenscoon/ravenscoons-wrapped- in-a-dream-mix; Marty's Mothership Mix, SoundCloud, https://soundcloud.com/djmartybg1.

81 See Stevo, supra note 37 (noting that Excision creates a new Shambhala mix every year that he plays at the festival).

82 17 U.S.C. § 107 (2020).

83 SeeCampbell v. Acuff Rose Music, 510 U.S. 569, 590 (1994).

84 See id.

85 See id.

86 Noah Sutcliffe, Copyright Concerns for Digital DJs,DJ Techtools (Mar. 25, 2012), https://djtechtools.com/2012/03/25/ legal-concerns-for-digital-djs-should-i-worry-about-copyright/. (referencing an example of a case that probably resulted from a Fair Use defense. He discusses Dangerous Mouse's 2004 mash-up album of Jay-Z and the Beatles titled “The Grey Album.” While Dangerous Mouse had permission from Jay-Z and Paul McCartney of the Beatles and released the album for free, the company who owned the masters of the songs filed an infringement suit. The owners eventually backed away. Id.

87 See id.

88 17 U.S.C. § 107 (2020).

89 Sutcliffe, supra note 86.

90 Sutcliffe, supra note 86.

91 Sutcliffe, supra note 86.

92 Sutcliffe, supra note 86.

93 See Sutcliffe, supra note 86.

94 Sutcliffe, supra note 86.

95 Sutcliffe, supra note 86. 96 SeeBridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 799 (6th Cir. 2005).

97 Id. at 800.

98 Id. at 799.

99 See generally id.

100 WaybackMachine, https:// web.archive.org/web/20110609212320/https://www.facebook.com/skrillex/ (last visited Nov. 11, 2019, 3:42 PM); see also Skrillex (@Skrillex), Facebook, https://www.facebook.com/skrillex/ (last visited Feb. 16, 2020). Other artists with a similar history and following to Skrillex show the same pattern in numbers, like Bassnectar who now totes 1.4 million followers and Excision who totes 1.8 million followers. Bassnectar (@Bassnectar), Facebook, https://www.facebook.com/bassnectar/ (last visited May 4, 2020); Excision (@Excision), Facebook, https://www.facebook.com/excision/ (last visited Feb. 16, 2020).

101 Megan O'Neill, How YouTube Detects When You Upload Copyrighted Stuff ... And Makes Money Off It!, AdWeek (Dec. 8, 2010), https://www.adweek.com/digital/youtube-make-money-off-your-videos/ (Specifically, YouTube uncovers copyright infringements using a program they call Content ID. Content ID matches every sound and video file to sound and video uploaded by the owner, instantly. This is how YouTube is able to automatically notify users of copyright infringement despite the 35 hours of content that is uploaded to YouTube per minute).

102 See Lucille M. Ponte, The Emperor Has No Clothes: How Digital Sampling Infringement Cases Are Exposing Weaknesses in Traditional Copyright Law and the Need for Statutory Reform, 43 Am. Bus. L.J. 515, 522 (2006).

103 SeeGrand Upright Music, Ltd. v. Warner Bros. Records, 780 F. Supp. 182, 183 (S.D.N.Y. 1991).

104 Id.

105 Id.

106 Id.

107 See id. at 185.

108 See id. at 184.

109 See Bridgeport Music, Inc., 410 F.3d at 805.

110 Id. at 796-97

111 Id. (explaining the Track “100 Miles” was the new track that featured a sample from the song owned by Bridgeport Music, Inc.).

112 See id. at 797, 801. (A de minimis argument asserts that the point being argued is so miniscule that the law should not consider it. In Bridgeport, the de minimis argument is that taking a 2 second sample from a song and shaping it to be unrecognizable to the original song is so insignificant that the use should be granted).

113 Id. at 798.

114 Jeffrey John Sayers, The Wrong Mix: Electronic Dance Music and its Copyright Problem, Law School Student Scholarship at Seton Hall (May 1, 2014), https://scholarship.shu.edu/cgi/viewcontent.cgi? referer=https:// www.google.com/&httpsredir=1&article=1566&context=student_scholarship.

115 SeeAbleton Live, https://www.ableton.com/en/live/what-is-live/ (last visited Jan. 25, 2020). (“In Live's Session View you can freely mix and match musical ideas without the constraints of a timeline. Getting ideas down is lightning fast, and it's the ideal place for improvisation. You can play MIDI and audio loops of different lengths in any combination, without ever stopping the music.”).

116 Bridgeport Music, Inc., 410 F.3d 792 at 805.

117 Ableton Live, https://www.ableton.com/en/live/what-is-live/ (last visited Jan. 25, 2020). (Programs such as Ableton live give producers a plethora of tools that allow for essentially limitless creations using sound. Ableton live allows a producer to “Create in a traditional linear arrangement or improvise without the constraints of a timeline in Live's Session View. Move freely between musical elements and play with ideas, without stopping the music and without breaking your flow.”).

118 See Stevo, Excision Drops the Highly Anticipated Shambhala 2016 Mix Compilation, edmsauce (Sept. 14, 2016), https://www.edmsauce.com/2016/09/14/excision-shambhala-2016-mix/. (noting that many up and coming DJs put free remixes and mixes on the internet without the purpose of capitalizing off of them, solely focusing on displaying their talents to increase their popularity instead).

119 Campbell v. Acuff Rose Music, 510 U.S. 569, 577 (1994)

120 “Pass the buck”, Cambridge Dictionary, https://dictionary.cambridge.org/us/dictionary/english/pass-the-buck. (last visited Jan. 24, 2020). (defining “pass the buck” as a phrase that means the person has left the difficult situation for someone else to handle).

121 Michael Allyn Pote, Mashed-Up in Between: The Delicate Balance of Artists' Interests Lost Amidst the War on Copyright, 88 N.C.L. Rev. 639, 641 (2010).

122 Id. at 646. (noting that Jay-Z released an acapella version of The Black Album specifically to encourage remixing and push artists creativity).

123 Id.

124 Id. at 641.

125 See id.

126 Id.

127 See id.

128 See Debra Ronica, What Does “Digitally Remastered” Mean?,HowStuffWorks), https:// entertainment.howstuffworks.com/what-does-digitally-remastered-mean.htm (last visited Feb. 16, 2020) (explaining that an album becomes remastered when an audio engineer takes the original mix of all the songs and tweaks the individual sound elements to make them sound clear and better to the ear. Naturally, older albums are produced with older technology and can be “updated” so to speak using new technology.)

129 See Leor Galil, The Story Behind the Newly Remastered Version of ‘The Grey Album,’Forbes (Nov. 28, 2012, 4:22 AM), https://www.forbes.com/sites/leorgalil/2012/11/28/the-story-behind-the-newly-remastered-version-of-the-grey- album/#3f31e48c8775.

130 Id.

131 Aden Russel, The Basics of DJ Copyright Laws, DJ TechTools (June 5, 2017), https://djtechtools.com/2017/06/05/ basics-dj-copyright-laws/.

132 Arista Records, LLC. v. Myxer, Inc. 2011 U.S. Dist. LEXIS 109668, *116, (C.D. Cal. Apr. 1, 2011).

133 See generally Cariou v. Prince, 714 F.3d 694, 694 (2nd Cir. 2013).

134 See id. at 710.

135 Id.

136 Id.

137 Id.

138 See Wilson Sayre, Waiting For The Drop: The Anatomy Of An EDM Song, WLRN (Mar. 27, 2014), https:// www.wlrn.org/post/waiting-drop-anatomy-edmsong.

139 See id.

140 See id.

141 Id.

142 See17 U.S.C. § 101 (2020).; see also 20 Best Free Music Production Apps - Best Free DAWs, HipHopMakers, https:// hiphopmakers.com/free-music-production-software. (last visited May 4, 2020). (finding that there are a minimum of 15 different programs that producers can use to alter music).

143 Free Sample Packs [Over 5000 Free Downloads!], bassgorilla, https://bassgorilla.com/free-sample-packs/ (last visited Jan. 25, 2020). (explaining that a sample pack is a downloadable file that another producer made and put on the internet for other producers to use).

144 “Tyler Yheti”, Facebook (Mar. 5, 2019), https://www.facebook.com/groups/547883195393541/search/? query=release&epa=SEARCH_BOX (stating “Basically I like to own my music and there's not really any money in releasing music, mostly money in shows these days.” Yheti is a music producer and DJ in the electronic music scene with 27,000 followers.); see also“Yheti: Musician/Band”, Facebook, https://www.facebook.com/yhetimusic/? eid=ARCvhJOu2HlAGAPoRHxFxanyURbPuy-P3plDhfkSG6je__eS8E73n-N9vpl4uD9lNmDio0_boCfo0exZ (last visited Mar. 6, 2019); see also “Yheti”, Twitter @yhetimusic, https://twitter.com/yhetimusic?lang=en (last visited, May 4, 2020).

145 See“City of Syrup”, Stems, https://remixpacks.ru/?s=City+of+Syrup+DJ+Subdocta (last visited May 4, 2020) (This is a website where stems and tags of songs can be found).; see also City of Syrup.zip, Google Drive, https://drive.google.com/file/d/1wZGCbgIRZOHmjUUKJN3VJ36wymWihdTS/view? fbclid=IwAR1ZAN6kcRoLhwphBIWMHOHa5sRoZ0ebA2PCR9. (last visited May 4, 2020). (This is a zip drive via google drive containing stems to DJ Subdocta's most famous song, City of Syrup).

146 See Yheti, supra note 144 (noting that the zip file was shared on Facebook for all of the DJ's followers).

147 See Brian Barrett, Facebook's Making It A Lot Easier To Share Music, Wired (Nov. 5 2015, 12:15 PM), https:// www.wired.com/2015/11/facebooks-making-it-a-lot-easier-to-share-music/.

148 See id.

149 Campbell v. Acuff Rose Music, 510 U.S. 569, 577 (1994).

150 See Brittany Elias, Expecting a DJ To Remix Your Tune? How Evolving EDM Culture Complicates DJs' Rights to Remix Music, Kramer Holcomb Sheik LLP, https://www.khslaw.com/insights/expecting-dj-remix-tune-evolving-edm- culture-complicates-djs-rights-remix-music-2/ (last visited Mar. 9, 2019).

151 See What is a bootleg?, EDMnow, https://edmnow.wordpress.com/what-is-a-bootleg/ (last visited Mar. 9, 2019).

152 See id.

153 Sayers, supra note 114, at 16.

154 Id.

155 Id. at 21-22.

156 Id.

157 Id.

158 See17 U.S.C. § 101 (2020).

46 RUCTLJ 22