On January 2 2014, Team Loudr presented a session on copyright at the Music and Gaming Festival (MAGFest) in Washington D.C., featuring Jesse Buddington, Sebastian Wolff, Jayson Napolitano, Andrew Aversa (zircon) and Braxton Burks as panelists. In response to your requests, we’re sharing the video along with a transcript.
(A standard disclaimer: the views and opinions expressed in this video are those of the speakers and do not necessarily reflect the views and opinions of Team Loudr.)
Hacking Copyright: A Crash Course in Remixes and Rights
Jan. 2, 2014 @ MAGFest - Music and Gaming Festival
[Transcript by Daniel Brenzel]
Jesse: Copyright is actually not is a big scary thing. We’re going to break it down for you guys and talk about some specific views and cases, [as well as] how everybody on all sides of the copyright (like remixers and indie composers) can benefit from the current structure of copyright and also how we as a community can help to move copyright forward. Let’s just start off with introductions.
I am Jesse Buddington I am the licensing guy for a company called Loudr. Loudr was put together from a combination of Joypad records, for which we were here last year, and Bundle Dragon. We all got together and decided to make a music platform for independent artists that supports cover songs and helps artists actually do the things they need to do. Thing like filling out tax forms and actually running the business of their art so that they can concentrate on making their own music.
Sebastian: My name is Sebastian. I’ve been an arranger for the past six years. I’m going to talk a little bit about licensing and the needed license to distribute sheet music and all joys of that.
Jason: I am Jayson Napolitano. I’ve been writing reviews of game music for a very long time and recently started to distribute game music, so I’m hoping to share some stories about working with Japanese copyright holders and some of the experiences I’d had over the years working in the field.
Braxton: My name is Braxton Burks, and I’m an arranger, composer, orchestrator and creator of a project that uses the music of Pokemon games. I released my debut album Kanto Symphony with music from Pokemon Red/Blue through Joypad Record, aka Loudr. Releasing that music and being able to license it actually improved my quality of life. I am not terrified of copyright, getting sued and getting my pants sued off by the Pokemon Company.
Jesse: Let’s get things started. Who is affected by copyright? How many people here would considered themselves remixers, or cover song artists, or anybody who is producing music from someone else’s works?
Would anyone consider themselves to be independent composers? Does anybody compose their own original music? Very good. I love that there are some of you guys that are in both groups. One thing that happens a lot is that composers will also pay tribute to each others songs. The people affected by copyright are the users of copyright and the holders of copyright. The users are anyone who does a remix - any recreation of someone else’s song in their own style. That’s cover song artists, parody musicians, arrangers, orchestrators, and samplers.
The holders of copyright are composers — those are indie composers, in-house or contract composers. Usually the works they create become owned by the studio they create them for and they become co-works for hire. The studio have labels themselves. Sometimes a studio will tap the music publisher, a separate entity, to administer their copyrights even though they are not directly the owner. They become the co-holder so sometimes it becomes very confusing as to whom to ask about a particular copyright.
A lot of people are daunted by the process of seeking permission, and a lot of people are daunted by the process giving permission on the composer side. A lot of time I think people are daunted by attempting to doing things the right way simply because its hard.
I want to try and dispel some of that, so a little bit about my specific background before I go into this. I am not a lawyer. I did not go to law school. I actually went to music school, and it was in music school as a voice major that I met a lot of these guys. Sebastian played piano in a group that I was peripherally involved with. Some of the other guys that I work with were fellow opera students and other musicians. During that time, it became clear to us that we needed music business tools and that we needed to program things ourselves and try get things out so that we could have successful artistic careers ourselves without having to worry about spending all this time trying to figure out how to do the legal processes that we needed, especially surrounding cover songs.
We actually started this project with the local collegiate a capella group at our college trying to get them onto iTunes. That thing that we soon learned was that copyright was really a preventive thing for them because they were doing all these cover songs and they didn’t know how to get permission. iTunes wouldn’t accept their music unless they had licenses in place. So we grew out of that. Of course video games were a thing we grew up with. We were surrounded by all these people who were really passionate about video games and video game composers because it was also a culture of you know and hero worship.
When you come to a place like MAGFest you encounter all these legendary game composers. People outside of this community don’t really know those names but we get all to know really great guys. Through this work actually we’d be able to talk to some of these people and even work with some of these awesome Japanese and American composers. I’m basically just the guy who has sat down with copyright law and looked over it, and talked to many music publishers well initially.
Usually people think that lawyers are scary people. Probably I’m going to offend somebody with this comparison but I think lawyers of the way a lot of people would think of the French. If you speak if you attempt to speak French to a French person, they will appreciate the effort if you try to talk in English they’re going to pretend they don’t speak English even though they will probably speak English, though not as well as you.
It’s the same thing with lawyers. If you try to come to them and say look I’m giving you this information I’ve done my research about copyright code. I’m trying to give you know that everything I think you need even if you’re wrong they’ll be more tempted to help you. Being helped by actual lawyers is really the way we got started and it’s the way I learned a lot about copyright law.
I want to introduce Andrew first.
Andrew: I am Andrew Aversa from the staff of OCD remix. I directed and created the remix project in 2006. I’m very interested in talking about that.
Jesse: A really quick review of the types of copyrights. We have live performances which are handled by PRO or Performing Rights Organizations which are ASCAP or BMI most of you who are composers are signed up in one or more of those.
Essentially blanket licenses are available through PROs and allow you to perform the entire collection of works in public. If I were to play a copyrighted piece of music during this panel I will be in a lot of able to do that because this hotel has most likely aBMI ASCAP SESAC licenses in place. So the venues are generally responsible for live performance.
Then there is mechanical reproduction. This is the fancy term for CDs and things like that. It is basically many things where you get to keep a copy of the things that are made. This is slightly different than streaming where you don’t get to keep a copy if you’re still creating a performance.
The copyright law basically come from a set of laws governing England. They came about for a book distribution so we are still using copyright laws for music and for downloads and for interactive streaming and things like YouTube that were designed to initially govern our books or creative insights. That creates a lot of the strife between users of copyright and people who administer copyright law. The DPD, which is a digital permanent download, is a fancy way of saying we have a download we virtually to keep an mp3 file — at least in permanent format
We have a compulsory license which I will talk about later. In this country, if someone has released their own official version they’re actually are not allowed to tell anybody that they can’t their own cover version. And so this is how many independent artists create their art.
Congress created the compulsory license which provides that if that you [pay the owners of the song] their royalties and notified them that you were using their composition, they didn’t have to legal right to accuse you of infringing them.
Current statutory royalties are this complicated calculation but it changes every few years. It’s currently the greater of 9.1 cents per copy or 1.75 cents per minute or a fraction of a minute, whichever is more. So, generally songs under 5 minutes are going to have a 9.1 cents royalty and songs over 5 minutes will start using the per-minute rate
Sebastian: On that note I want talk a little bit about how the different parts of performances are broken down to pay copyright holders.
Jesse: Thanks. So hip hop songs are very good examples. Some hip hop songs have like 10 writers and some hip hop songs have a writer who gets 0.02% of that 9.1cents, and technically you’re supposed to contact every single copyright holder and get their permission before releasing the project unless you do something like a compulsory license which is another reason why compulsory license have become so popular in this digital age where things need to be completed quickly. It’s not really practical to go look for some dude in a house that owns 0.02% of a composition. Songs can be licensed through a publishing organization like the Henry Fox agency as well as through the individual publishers like Sony Music, Universal Music, Warner Chappell, individual music publishing companies and more.
I wanted to talk for a tiny bit about synchronization. Synchronization is any sort of video license. It’s any time that a piece of music is being used in conjunction with the video. This is very popular because of YouTube, and synchronization rights are messy at the moment. Many people have been getting content ID claims.
The fact of the matter is that synchronization licenses are given directly by publisher. There is no separate royalty set by the Copyright Royalty Board. Congress doesn’t even say how much a synchronization use is supposed to be worth and I’ve seen everything from copyright owners giving away their synchronization rights for free to charging a flat rate of 10 cents per copy or 1 cent per stream. Or in the case of YouTube you get some number of cents for a hundred views. Then you have synchronization rights licensed for major films where some pop song is playing over the credits of the film. These usually run in the range of tens of thousands to hundreds of thousands of dollars. So there really is no standardization for it, unfortunately.
Then there is a class of license for derivative works. A derivative work is anything that is not a straight cover or a live performance, and that includes mashups, medleys, sheet music, musical arrangements, and samples. Sebastian is going to talk about arrangement
Sebastian: I’ve been an arranger primarily for piano solos and small ensemble works …
The world of digital licensing is kind of a mess when you think about the music industry as a whole and how segmented and fragmenting is. Case in point: print licensing.
At the moment, there in the US there are two organizations offer print publishing rights if you play piano or art or using any instruments and would like sheet music books, finders flee sheets. These two print music publishers administer almost all print rights in the US. They have a bit of a monopoly over how we can use those print rights.
Trying to email them means waiting for a response, and when you finally get a response, it may be “Well, you will have to pay X number hundreds of dollars upfront. You will have to part with 75% of all revenue.” Given the wait times and the financial model in the world of print licensing, it doesn’t really make sense for the individual to pursue [clearance on his or her own]. In the coming months I’m hoping to pursue way for vendors like you and me to find a way to distribute covers and cover arrangements of sheet music legally.
Jesse: I’m actually going come back to the issue of permission for usage, because that ties into YouTube and various disclaimers that people put on their videos. As for how to actually obtain license for your recording, in the US there’s a three step process. You can go directly to the copyright holder if you know who that person. This generally requires research into who the songwriters are and who are they represented by. Then knowing how to contact that person again is as Sebastian said, the hardest part, as it involves digging up emails.
Once you have the right people it’s generally easier to figure things out and because the combination of Universal, Sony and Warner, which represent roughly 80% of the licensable music in the world and which is a huge chunk. All of other labels and independents represent only approximately 19-19.5% of that music. You can generally get compulsory licenses. However, there are limitations to the compulsory license, which governs straight covers things. I would like Andrew to talk about some of his projects.
Andrew: How many people are familiar with sites like post your remix or sites that are free models?
I have been actually involved with sites like for many years and probably seen some compilations since [OC Remix] has been released. One such compilation that we did was something called Balancing Room in Final Fantasy 6. When we were looking at the sort of legal framework for that, we consulted lawyers. OC Remix has been around for a long time and it is a non-profit site …
The compulsory license is limited in scope in a few ways. One way is that it only covers things that don’t dramatically change the piece, the character, the exact words or right … One thing that has been said is that using sample recordings is not covered under the compulsory license. So one of the things we need to do first was find out if there were any sound effects like one track that had a train was in the background of the track. If you chopped it out, it would be creative, but that’s not covered by the compulsory license because it’s part of the musical arrangement.
The other thing is that the compulsory mechanical license is music specific so if we wanted to also include that parrot on the cover that has nothing to do with the compulsory mechanical license. That is an entirely different type of art. There are very specific restrictions about that.
If you were to copyright a song, write a song and distribute an mp3, you would have the copyrights for all the stuff that we have discussed here. With the compulsory mechanical license, you get to arrange and you can’t really use any audio from the original. If you go beyond that, as Square felt we did with the two on Kickstarter, that’s why they were taken down. Then you have a problem and you have to actually to negotiate copyright. So that’s how unfortunately compulsory mechanical licensing is now quite extraordinarily limited. It works if you can stay within that framework, but it just gets funny if you go beyond that.
These are just some of the limitations that we encountered and that might be common mistakes during recording. You can’t use other samples, the arrangement has to somehow keep the spirit of the original and then things like art work, trademarks or characters associated with the music don’t follow compulsory license.
Jesse: It is also important to know that what when you make an arrangement under the compulsory license the compulsory license does include the ability to arrange a piece in your own style or enhance the style. But if you make an arrangement, you do not retain ownership of the arrangement. That arrangement becomes a property of the copyright holder.
How many people know Jonathan Colton? A while back Jonathan Colton did this fantastic arrangement of Baby Got Back by Sir Mix A Lot and it ended up on an episode of Glee. That was wonderful except that they didn’t pay him or credit him and so it turns out he doesn’t actually own the rights to the arrangement that he wrote because it became the property of Sir Mix A Lot because he used the compulsory license. So that is a thing to bear in mind when you are arranging works. Another issue is dealing with multinational companies, especially in the video game world when you’re dealing with companies based in Japan
Jason: So, that’s really a fun story. The Final Fantasy 7 arrangement album that we did years and years ago will give you a sense of how [sensitive] some Japanese companies are with copyrights.
I was writing for a website called music for games and we had done an advanced review of the album before it came out. We had a little album database hooked it with all the which we have covered and in which we had listed Final Fantasy 7 Voices of the Live Screen. So, I was actually putting together an interview with Yoko Shimomura about the album Dramatica, which was … basically an arrangement album that was coming out.
I get an email from Sporans as I was putting together the interview with them and it was in Japanese. I put it into a Google Translate and I could tell that they were upset about something.
So, I ask my Japanese friend to translate this email, and essentially telling me that they were going to hold interview hostage until I removed the listing on music for games for this unauthorized fan arrangement album.
We were having an interview, and they said, “We will not release answers to you until you guys remove this listing in your database” — because we were presenting it as an official product when it’s not licensed. So we had to remove the listing from our database even if the article was still live. The site’s gone now so you can’t find the review, but that’s how touchy these guys can be about copyright.
Another quick story was I was at Konami doing some interviews and the person I was emailing stopped responding. I emailed somebody else in the company and say “Hey, Can you follow up on this?” And I got the email back that they didn’t want the person didn’t want to work with me because we had posted the post on the website that used Konami’s logo as the header — apparently we had to ask permission to do that. And this was a blog posting.
So they are super sensitive about copyright, and they have composers running scared. I have a ton of these stories, and the last one was Spectrograma, which is actually on sale here at MAGFest. I was asked to contact each one those composers for each of those project and say, “Can you give us a little blurb or paragraph about what you think about the arrangements?” The response from each one of them was, “Well, I don’t want to offend Nintendo or I do not want to offend Square Enix about the status of the game. So, I can’t officially comment on this arrangement project.”
They don’t even want to comment on the work they’ve created because that work is owned by Nintendo or Square Enix, and they don’t want to get on the companies’ bad side. This shows what the climate is Japan. Trying to work with the companies now while starting this record label, we have to be very cautious. They want a lot control over their copyrights — as they should — but it’s pretty intense and the language barrier makes is more difficult. It really drives home that even though a lot of these people can speak some English, it’s really important to have somebody at your back that speaks Japanese to talk to these people and get the intricacies of what their concerns are. Because you don’t what to progress to a point where something blows up and you’re left saying, “Wait I thought we were on the same page.”
Jesse: So that’s the dark side of copyright. Those are two things that don’t work out. Generally, in those cases you can avoid a lot of those cases by doing a lot of work before starting on a project with this state of the internet of being what it is, most the projects that at least come through Loudr and “Hey, I made this recording, here it. Please go get it licensed.” And it’s much better when we’re approached by the artist that, “Hey, I’m thinking of doing this project. I haven’t made anything yet. Can you check what the copyright holder and see if they’d be amenable to allowing us to recreate this project?”
One of the problems is that chicken and the egg thing. The copyright holder want to hear examples of what the work might be, but they don’t want part of the examples of the work to exist. They want to hear similar things or maybe some prototype work before they agree to licensing it. Of course, if they don’t [allow it], the reality of most independent artists is that the Internet is a place where we put things on Soundcloud. The Internet is place where we can put things in a Torrent.
One of the things we can do as a community is try to encourage people to approach copyright holders respectfully but also to encourage copyright holders to participate in the way world is now. With that I would like to move on to the benefits of licensing, not the least of which is peace of mind.
So for licensees, you get the feeling that you’re doing the right thing, you get lack of stress and future complications because everybody understands the project before it moves forward.
You actually can have a lot of situations where composers feel comfortable talking about the work. We had a GoldenEye album come out and we sent a free copy of Grant Kirkhope and tweeted about it. It blew up because he was like, “Oh man this is really awesome check this out.” And it’s really cool when that can happen. So proper and legal copyright makes good things. Actually Braxton Burks can talk about his experiences with Pokemon …
Braxton: I’m really excited to be here. It was back in around 2010 is when I launched my project Pokemon Reorchestrated. Basically it was just a small project I did at school in my free time. I was in music major back then but I was taking music from the Pokemon games and arranging them for orchestral samples on my laptop. I uploaded them to youtube and then started to get more and more hits as the months went on. I kept posting things and soon I had a pretty decent following. Up until a certain point I only released singles and only released Pokemon-related tracks from games or a battle theme.
But I got really ambitious and I wanted to do the entire album music from Pokemon Red and Blue because it holds a special place in my heart and the music is fantastic. I really wanted to hear that in an orchestral setting like all my favorite film scores scores of video game scores. So I launch the Kickstarter in 2012 to fund my Pokemon album.
It’s reached its goal but then after that point I had heard about Joypad Records, which is now part of Loudr, I approached them because … I had this daunting, horrific realization after the Kickstarter ended, that maybe I should have worried about copyright or licensing or paying royalties. I had no idea how it worked, so I shot these guys some emails. I was a little apprehensive because I was not really acquainted with copyright law. These guys got it broken down for me and explained to me in a way that made sense.
So, basically [the licensing] benefits copyright holder, and they can get royalties from all the sales of my Pokemon album. I also get a decent chunk that supports me and gets me through school. After talking with these guys it became less of a massive terrifying thing and more of like okay, this is how you are to approach arrangements that you want to do from now on and do it the right way so you don’t get scuffle with Nintendo or the Pokemon. Correct me if I am wrong: the Pokemon Company gave their publishing rights to BMG, and it was fairly straight forward licensing wise but it feels a little funny too because after the Kickstarter I asked if we should license Kanto Symphony and had to find out who published the original Pokemon or soundtracks that I was covering and if there was any possible way of to get hold of them. I was sifting through articles on Wikipedia about Pokemon and was finding names of the composers of Pikachu records from a record label that no one knew about.
Jesse: Yeah, the way that it turned out was that Pikachu Records released the soundtracks. Pikachu Records is owned by the Pokemon Company whose sole purpose is that it exists to govern all the copyrights of all these Pokemon characters. They in turn have used BMG as their US music publisher. BMG is a company that I work with all the time. It is the probably the 4th biggest music publisher behind Sony, Universal, and Warner.
Braxton: … Basically, in publishing all of those soundtracks, the Pokemon Company made it possible for artists like me to pay compulsory licenses because now there is an actual framework. There is a point of reference, a publisher, that these guys you get in contact with.
Jesse: Yep. One last little thing about this story is that you were working on a crepe place right? You working at a crape place waitering?
Braxton: Yeah, before that. I was working at Storables, which sells containers, buckets and kitchenware and then I was making crepes for a while
Jesse: And like what do you do now?
Braxton: I am writing Pokemon music and it actually [provides] a lot of support for me because I started to pursue a degree in music composition after the Kanto Symphony came out. It’s been helping me to get through to school, and paying my bills and so I don’t have to worry about coming home exhausted 10pm anymore from a crappy food service job.
I don’t want to say that life is leisurely because we do have to work to keep revenue coming in but you also need to balance that with the mentality that this is music you enjoy working on. I have a very deep attachment to the Pokemon series and the soundtracks. I was just really grateful that I could even pay homage to those things and actually make a living on it. That’s kind of unbelievable to me.
Jesse: Cool! One last little bit of happy copyright stuff. One of the worries is that sales of this music will cannibalize sales of the legitimate article, and of course as tribute musician, as cover artists, and as remixers, none of us really want that. We wanted to make sure that being the original article is still available and respected. Maybe people are coming to the Pokemon series through remixes and come to understand the original music [as a result].
Braxton: To comment on that, I don’t believe my music in any way harms potential sales of the original Pokemon soundtracks or anything like that. The people who grew up with those albums often internalize it in their brains forever.
Jesse: Yeah, actually we have observed that on Loudr. Cover songs provide a copyright holder with extra passive revenue. You literally don’t have to do anything, except saying occasionally yes to a license in order to be drawing in this additional money. This road even becomes a common [way to raise the] popularity of upcoming artists. Whoever the hot remixer is — that’s where we are going to get a lot of money …
A lot times we’ll see people do a bunch of cover songs, a bunch of remixes and then transition to a successful career writing their own music. That as they transition in a way from to covers, or continue to do covers, new people come up and [start out with] covers.
So when copyright holders are really participating in this culture and support it, not only they are able to sell their own works. They are able to draw in income from other peoples’ versions of their works. They are also creating more popularity for the original works. Because anyone who gets into a remix artist is going to want to get to know about the original. Younger generations of kids were certainly not alive when the SNES came out. The sales of these covers absolutely do not replace original sales.
Jason: I’m working with Loudr … because I don’t want to deal with copyright stuff. For those of you out there who want to pursue your own arrangements and contact copyright holders, you could add that pitch. You putting out the arrangement is beneficial because it increases the brand awareness – for the product, the game …
Jesse: So the whole thing is that users of copyright can help the holders of copyright maintain the value of those copyrights and holders of copyright can help the users of copyright by encouraging up and coming artists. That inspiration is what makes us all come to MAGFest. One of the things that has to happen is that copyright has to actually reflect the artists that are using it. Right now copyright very much protects corporations – it protect the Disneys of the world. Much of copyright extension has dragged [copyright terms] longer and longer and longer, and this has been spearheaded by a lot of these major content holding corporations.
That is starting to change as companies like Google [have taken an interest in the game]. It’s really going to favor them to try to limit copyright terms, to limit the power of corporate works and give more power back to individual content creators. Google and YouTube have a vested interest in empowering individual content creators because without you guys they wouldn’t have a successful platform.
Andrew: Just as an important note…. As we’ve talked a few times about working with the company, Pokemon Company, or Square Enix for example. How is all this music continually ending up in their control and not the control of the people that originally wrote it? Just for clarity behind this, if you are employed by a company pretty much the default in a vast majority of cases is that anything that you create for them immediately becomes the property of the company. It is as if the composer never earned the copyrights to begin with. For a company like Disney, in any situation where people create [protectable] ideas (art, music, or something else), that immediately gets transferred to the employer.
This is very unfortunate because if the original composer wrote something and then got fired, the employer would still be the owner of the work and they don’t have to do anything with it. They could just sit on it. But if you are working as a contractor, someone that is freelance, there is no such default, what they call a work for hire. It’s not a default. There are more freelancers in the music industry than ever, but also in other industries as well. Creative professionals are not longer forced to give up their rights simply by having created them. Instead its the reverse because they created them it is now theirs by default and it’s up to the contract to say, “I will give the rights to use the soundtrack in your game, but I keep everything else”. This is a complete reversal of what it was before which was the composer gets nothing and the company gets everything. I just wanted to add that to the discussion.
Jesse: Thank you. I wanted to add one last note on fair use, which I skipped over earlier. A lot of YouTube videos have that posting down at the bottom that says fair use provides for things such as criticism, journalism, educational value, etc. … It’s important to recognize that fair use is not a license. Fair use is a legal shield, and generally by the time that you are asserting fair use you are already being sued, and that’s an important thing to understand. Fair use is a right but it is a right that you use to defend yourself. It’s an active defense.
The only time in recent memory that I’ve seen fair used before anybody got sued was with Blurred Lines the Robin Thicke were he sued instead of Marvin Gaye. Blurred Lines is a very similar track to another Marvin Gaye tune, and Robin Thicke and Pharrell Williams actually sued the estate of Marvin Gaye not for money but so that the judge could confirm that their work did not infringe on the part of this other song. It’s a very uncommon use of a lawsuit but it is a that that happens …