For the sake of simplicity, I am not going to include works by artists that license their work under the alternative, opt-in Creative Commons vision of copyright protection in this article; instead I will focus on the code as put forth in the U.S. Code since the model is far more prevalent and likely to affect the works in question. Many countries also have reciprocity with the U.S. Code, and therefore tunes from abroad are not necessarily immune.
Any work created after January 1, 1978 is granted immediate copyright protection for the author’s life plus 70 years, regardless of whether or not it was registered with the U.S. Copyright Office. (To prosecute infringement for monetary damages, however, the work needs to be registered.) Generally, that copyright is held by the artist, but in the case of mainstream music promoted by a record label, the record label, or publishing company in some cases, frequently holds the copyright. (Works created between 1923 and 1978 are a bit dicier, since registration and renewal of copyright protection was required during that period. The status of works that were created in this period may be found through the U.S. Copyright Office.)
Section 106 of Title 17 of the U.S. Code (that is, U.S. Copyright Law) tells us that the copyright holder of a work has the following exclusive rights (emphasis mine):
“(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of...musical...works,...to perform the copyrighted work publicly;
(5) in the case of...musical...works...to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.”
While these rights may be sold to another in part or in total by contract or license, unless otherwise specified they are exclusive and unauthorized instances of doing so are legally prosecutable. This gets really frustrating for the DJ community, since a lot of what they do are in fact derivative works but are in their own ways a new and separate entity.
To help with this, ASCAP, BMI, and SESAC were set up as clearinghouses for licensing for public performance of recordings and covers, that their member artists would get licensing fees for public performance of their work without a DJ/radio station/etc. having to go to each and every copyright holder. Whether or not the artists ever actually see these royalties is a matter of debate (and has led to a few places like AS220 in Providence, RI banning ASCAP/BMI/SESAC-licensed music), but that does mean that performance venues (e.g., dance halls) need to get themselves a license to cover the playing of cover tunes and derivative works of ASCAP/BMI/SESAC members for a flat fee.
Which is awesome...unless the work in question isn’t covered by this because they’re not members of ASCAP/BMI/SESAC, and while most widespread artists are members, many independent artists aren’t. (You can search ASCAP, BMI, and SESAC’s databases at the links provided to find out whether a song in question is covered, and the copyright office is trying to make this easier by digitizing their older records.) In that case, to be legally covered you’re going to have to go track down the copyright holder and ask for permission, preferably in writing (email is fine, per the 2000 Electronic Signature Act). As pointed out by Eileen Thorsos and Peter Clark of Electric Camel “electroflow” contra in North Carolina, many of the less-mainstream copyright holders are likely to agree to the use of their work for a folk dance, either for free or a small fee.
This covers performance, though -- it does NOT cover posting of said mixes online. That’s a separate set of rights which needs to be cleared/licensed with the copyright owner. (And no, the fact that you’re giving it away and not selling it does not make it fair use (see Section 107 of Title 17); the bigger issue would be whether it’s cutting into the possible market for the original work at all, and that includes but is not exclusive to revenue generated and may well be up to the courts. YouTube actually recently wrapped up a case with some music publishers.)
Ignoring copyright issues is a calculated risk that many DJs and event organizers take. The likelihood of being called out on this may vary, but if you are, be prepared to pay: per Section 504(c)(1) of Title 17, damages for copyright infringement can start at $750 per instance of infringing use.
But wait -- I obtained the music legally! I’m not pirating if I publicly play music I legally bought, right?
Common misconception, but actually you are. Love it or hate it, “first sale doctrine,” as it’s called, hasn’t been upheld in court so far with digital copies. (For further reading, go check out the Napster case and its progeny.) Many DJs compare this practice to scrapbooking, but the courts have historically not seen it this way -- they tend to see unlicensed sampling as piracy even if you own the copy you’re remixing. (Check out Bridgeport Music Inc. v. Dimension Films, 2004.)
Ryan E. Holman is the primary brains and blogger behind Contra Syncretist. She recently got her master’s in publishing, including acing two semesters of coursework in copyright law and subsidiary rights classes. She is not a lawyer, and this article should not be taken as legal counsel but rather as a starting point for further inquiry. She may be contacted through this site’s Contact page.
Special thanks go to Eric Slater, Esq. for reviewing this article!