Good Copy Bad Copy - What Constitutes Fair Use?

See, this is what I don't get:

I still don't understand why everyone thinks they should have a say in how a music company runs its business. It really makes no sense to me how people get so worked up about how the RIAA does business.

For example: what did people do when they didn't like Microsoft's OS and how it marketed and distributed it? That's right, they created their own operating system, from scratch, put it into the public domain, and created competing companies. Or, in Apple's case, it created other products which broadened its visibility in the marketplace which helps it compete. Microsoft can choose to adapt or not if it wants to.

If people want to make music that isn't constrained by the limits of the major label contract, if people want to mash-up music, I don't understand why they don't just compete rather than complaining and committing crimes.

Mostly my post was directed at Night Phoenix, who said something about record sales declining because people don't want to pay for music. I should have quoted him.

I don't disagree that music piracy is ultimately wrong. But to answer your question, Mikey...I also don't agree with the way that the recording industry usually screws over it's artists and pays the record executives more than it pays the people who actually make the music. You telling me that it's silly I have an issue with the RIAA is like you telling me it's silly I have an issue with clothes sold at Wal-Mart made by children in Bangladesh. It's a disagreement with a business practice. No, I wouldn't walk in to a Wal-Mart and steal a shirt. But I still wish that, if I were to buy that shirt, the child that actually made it was getting paid more than 2 cents a day.

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CrazySexyCool eventually sold over 11 million copies in the U.S., becoming one of only seven R&B albums to ever receive a diamond certification from the RIAA, and won the 1996 Grammy Award for Best R&B Album. However, many were shocked when, in the midst of their apparent success, the members of TLC filed for Chapter 11 bankruptcy on July 3, 1995.[6]

They declared debts totaling 3.5 million dollars, much of it because of Lopes' insurance payments citing from the Rison arson incident and Watkins' medical bills, but the primary reason being that each member of the group was taking home less than $35,000 a year after paying managers, producers, expenses, and taxes.

That is completely ridiculous.

I also would definitely prefer the artists making the lion's share of the funds. But, then again, why did TLC sign? Where is the accountability placed on the artist, why is it the big bad RIAA when they couldn't do jack shit if people didn't sign with the big labels?

That's why its completely different from your scenario. They aren't preying on workers in impoverished countries who would be unemployed if not for the Nike factory. It's not forced slavery or even a bad business practice. No one has to sign with the RIAA.

Plus, while that is a sad tale, record contracts, like anything else, reward longevity. Did, I dunno, Tom Cruise made $25 million in his first hit movie? Hell no. You become a star and then you have some negotiating power. Think about how much risk, how much money, the labels have to spend to promote brand new artists. I don't have stats, I bet that most don't pan out. So if they are going to honor the contracts of people who don't succeed, why would you expect them to over compensate the ones who are successful right out of the gate?

It is well within an artist's rights to say, "I don't like this contract. Put me on a percent earned plan and I'll sign" and see what the labels have to say.

The labels would probably say "hell naw" because they can make anyone a star and exploit them just the same. You don't need me to list examples of fabricated music stars, do you?

A fabricated star would be someone presented as a star but is anything but. What you probably meant to say is manufactured stars, since they grab people with a bit of singing talent and then mold their image into star material. Big deal.

There is no one Mega Label which oversees all contracts and dominates distribution in all retail outlets. An artist can always take his talents to another label to find a better deal. This is not entirely one-sided, and I'm really finding it hard to shed a tear for people that make 5-10% out of millions. The real money is in concert sales anyways.

But, just like you find it hard to shed a tear for people that make 5-10% of millions, I find it hard to shed a tear for people that make 50-60% of millions when someone decides that they want to remix a song and play it in a club. It's not even a blip on the radar.

Well, neither do I. The thing is that it's well within their rights to sue for plagiarism, since they can claim ownership, just like it's well within the rights of an artist to negotiate with another company.

Record labels aren't just one guy with a record press, they require a lot of effort and costs have to be factored in across multiple services and markets. The Evil Record Companies can claim the lion's share of profits because they do the lion's share of work.

Originally Posted by Bradylama

Record labels aren't just one guy with a record press, they require a lot of effort and costs have to be factored in across multiple services and markets. The Evil Record Companies can claim the lion's share of profits because they do the lion's share of work.

That's funny.

Without the artist, they wouldn't have a product to sell. They may market the fuck out of their artist and produce a record, provide studios, and so on - but they're not required.

And before you come back with "well, without the recording/label companies, the artists wouldn't have a way to produce records," I'm just going to go ahead and tell you that an artist can definitely turn a profit without the companies.

Originally Posted by BlueMikey

The people who create karaoke CDs pay royalties.

There are rules for all this, see: the Copyright Royalty Board.

Okay, but let's assume that we forgo buying a karaoke CD and just sing the lyrics withought music to it. You were claiming earlier

Originally Posted by BlueMikey

But the actual performance of the song is not the only copyrighted portion of it. The lyrics and the written music are as well.

Which, if I understand you right, means if you are using any of these three factors composing a song, you are infringing on copyright. With that said, if you were to stand on a street corner and start singing the latest Fall Out Boy single, to the dismay of the public, you are infringing on their copyright of the song, are you not?

Another example that comes to mind is Weird Al and what he does. It's my understanding that Weird Al can take the original artists song, keep the same music composition, swap around the lyrics, and release it withought permission of the original composer and avoid paying any royalties while he's at it. How is this any different then taking the song, and morphing it to your own beat, e.g remixing it, and releasing it to the public. Are you infringing?

Also on the note of record labels -
I agree that the record labels have every right to protect their copyrights by means of litigation. But, like Sass said, the record labels would not exist withought the artist, I think it's just important that everyone including the labels themselves remember that.
There was a day when record labels didn't exist. Back then, music still flourished, and was just as important to people as it is now. So I would simply argue that the record labels depend more on the artist then the artist does on them, and that the distribution of royalties should be balanced appropriately. 50/50 would be a good starting point, though I honestly feel the artist should get more than that. Honestly, I think the record labels are engaging in royalty gouging, and it's borderline criminal, though don't misunderstand me, technically I agree they have the right to and it is legal to charge what they do.

Originally Posted by KrazyTaco

Another example that comes to mind is Weird Al and what he does. It's my understanding that Weird Al can take the original artists song, keep the same music composition, swap around the lyrics, and release it withought permission of the original composer and avoid paying any royalties while he's at it. How is this any different then taking the song, and morphing it to your own beat, e.g remixing it, and releasing it to the public. Are you infringing?

Actually, Weird Al won't record any parodies without the original artist's consent. But he will definitely perform them live. (I heard it in an interview with him recently).

Just wanted to, you know. Interject. ;_;

Parody is fair use, so long as it doesn't slander the original artist.

I think Weird Al asks permission just to be a nice guy, but it isn't a requirement.

Of course, if you're going to go and parody something, expect a legal suit just because; so many people can't take jokes these days and are so quick to offend.

Originally Posted by Sassafrass

That's funny.

Hey, I'm a funny guy.

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Without the artist, they wouldn't have a product to sell. They may market the fuck out of their artist and produce a record, provide studios, and so on - but they're not required

Yeah, it's not required to produce millions of copies and spend millions on marketing to sell records, but it is required to sell millions of records.

Whether or not the resultant gains were worth the investment is the label's responsibility to determine the risk. If the band attempted to produce 15,000 copies on their own, and sell them for 10 dollars a copy, they make 150,000 before costs. But with the record deal, a million copies are produced and sold, making a profit of let's say: $6,000,000. If which, the band is entitled to 5% of: $300,000. That is twice the return on what for the band was only a marginally larger expenditure of effort, yet because the band agreed to this trade, you claim that the record company is not entitled to the returns agreed upon.

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And before you come back with "well, without the recording/label companies, the artists wouldn't have a way to produce records," I'm just going to go ahead and tell you that an artist can definitely turn a profit without the companies.

Well, that's their decision to make. Nobody is forcing them to sign the contract.

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There was a day when record labels didn't exist.

And we had to walk 15 miles to school in rain and snow...

Yes Brady, record companies are unfortunately seen by most musicians as a necessary evil. But the last word in that title is still "evil."

Originally Posted by Bradylama

Yeah, it's not required to produce millions of copies and spend millions on marketing to sell records, but it is required to sell millions of records.

Whether or not the resultant gains were worth the investment is the label's responsibility to determine the risk. If the band attempted to produce 15,000 copies on their own, and sell them for 10 dollars a copy, they make 150,000 before costs. But with the record deal, a million copies are produced and sold, making a profit of let's say: $6,000,000. If which, the band is entitled to 5% of: $300,000. That is twice the return on what for the band was only a marginally larger expenditure of effort, yet because the band agreed to this trade, you claim that the record company is not entitled to the returns agreed upon.

If they sign the contract, they're certainly bound.

But a smart artist wouldn't. Guru posted what I was thinking about last night - CrazySexyCool.

These days, it's (of course, my opinion) a better idea to go with a small label, something independent or whatever, who can provide what you need, but isn't greedy or demanding of you. Hell, you can get a business on the internet to provide your songs on a server for a cost - and people can download your song if they like it for just short of a buck. Cuts out the middle men, cuts out the crappy "evil" corporations. It's much more direct, and I promise you'll see a lot more of it in years to come.

In fact, some artists make a copy of their album and submit it to some websites to offer it. I believe this is how CDBaby works - you can find obscure (but great!) artists you love and pay a small amount for a copy of the album. Some of the money goes to the distributor, some directly to the artist. It's an awesome system, if you ask me.

I mean, if we're talking about contracts in general, how many people actually bother reading the whole small print section? And I mean, the artists themselves likely don't even READ it - that's what lawyers and agents are for. And if you need a lawyer, an agent, a publicist - all that shit just to get a mediocre label produced, well hell. Talk about a fucking RISK.

I don't disagree with you as far as contractual obligations are concerned. But I think an artist should certainly put the desire of being on TRL or whatever the modern equivalent is aside and cut to the real meat of the matter.

You can be a star. How do you want to go about it?

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Well, that's their decision to make. Nobody is forcing them to sign the contract.

Absolutely right.

But you implied that these corporations are needed to do business as an artist. Maybe it's an eventuality for some artists: they get too big and too popular to manage without. It's a sad state of affairs at that point, if you ask me.

But to get to my point: the companies need the artists more than the artists need them. This puts the artist at an advantage to make better business decisions.

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And we had to walk 15 miles to school in rain and snow...

He has a point, Brady.

Music hasn't always been this way. Nor has the film industry. Because there's big money involved, you can expect this kind of behavior, though. (Like most things)

Originally Posted by KrazyTaco

With that said, if you were to stand on a street corner and start singing the latest Fall Out Boy single, to the dismay of the public, you are infringing on their copyright of the song, are you not?

You are.

Originally Posted by KrazyTaco

Another example that comes to mind is Weird Al and what he does.

Parodies are covered specially in the Fair Use Act. And I don't know if it's ever been tested at a high level in a court. Weird Al's most infamous one, Amish Paradise, never went to trial and Weird Al ended up paying royalties to Coolio. He usually asks artists and won't parody a song if they refuse.

Originally Posted by Sassafrass

Without the artist, they wouldn't have a product to sell. They may market the fuck out of their artist and produce a record, provide studios, and so on - but they're not required.

A restaurant without a chef has no food to sell, but that doesn't mean that a patron can go into the back of a successful restaurant kitchen and make his own food.

That's essentially what you're saying, that anyone should be allowed to go back there, take the food the chef cooked, fuck with it, and take it out and serve it to whomever they please and not pay the restaurant. And not only that, but obtain the recipe, make as many dishes as it wishes, fuck with all those, and give them out as they please. All without any payment to the restaurant.

And damn the restaurant owner and all his costs that it takes to run advertising, hire chefs, buy supplies, buy food, pay utilities, etc.

Originally Posted by Sass

And before you come back with "well, without the recording/label companies, the artists wouldn't have a way to produce records," I'm just going to go ahead and tell you that an artist can definitely turn a profit without the companies.

Then why are they signing?? You seem to have no answer to this fundamental question. If an artist wanted his work used freely, why is he signing a record label contract?

Originally Posted by Sass

I mean, if we're talking about contracts in general, how many people actually bother reading the whole small print section?

1) If you don't, you're a dumb motherfucker.
2) That doesn't excuse you from the obligations.

Originally Posted by BlueMikey

A restaurant without a chef has no food to sell, but that doesn't mean that a patron can go into the back of a successful restaurant kitchen and make his own food.

No, but that means the patron can go elsewhere to get some food.

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That's essentially what you're saying, that anyone should be allowed to go back there, take the food the chef cooked, fuck with it, and take it out and serve it to whomever they please and not pay the restaurant. And not only that, but obtain the recipe, make as many dishes as it wishes, fuck with all those, and give them out as they please. All without any payment to the restaurant.

Are you intentionally misinterpreting what I am trying to explain just to rile me up? =/

First of all, there are a million ways to make any given dish, no matter who makes it. Just because Jane Doe publishes a recipe in her cook book doesn't mean a MILLION OTHER PEOPLE OUT THERE were already cooking that dish are now infringing on Jane's goddamned recipe. Your analogy is flawed.

As far as the restaurant is concerned: if I go to, let's sayyy, I dunno. Francois's House of Delicious Snails. And I like the sauce they put on my escargot. There is NOTHING STOPPING ME from going home, experimenting with my own kitchen and making an equally as delicious sauce for my snails. And I got the inspiration and some of the ingredients from Francois's place. I don't sell my recipe in a cookbook, but I will make these delicious snails with my recipe for the local church get together every Sunday. Maybe I will put my excellent recipe on the internet for people to try themselves.

No offense, but if you really want to continue with your crazy cooking analogy, let me know. I'd love to play with it.

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Then why are they signing?? You seem to have no answer to this fundamental question. If an artist wanted his work used freely, why is he signing a record label contract?

Honeychile, I've been telling you for pages that a lot of them AREN'T.

What do you think the industry is bitching about? It's not fucking piracy. There's proof that pirates are hardly even noticeable on their income loss. It's the smaller, more awesome companies who are stealing the artists.

Besides. Everyone knows none of the major labels produce anything good anymore. =p

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1) If you don't, you're a dumb motherfucker.
2) That doesn't excuse you from the obligations.

No, I agree. I am not excusing it at ALL. You sign a piece of paper, you better damned well know what you're signing for. Most people out there do not share this sentiment, as I am sure most of us here are aware.