Artists should control their music

By far, the most important right that an artist has is approval over how their work is used.  Music is so deeply personal to its creator, and artists care immensely about how others use their work.  In fact, during negotiations, money is always secondary to approvals.  The current system gives performing artists and songwriters the right to say “no” to any change to their music—this should remain their choice.

And yet, the Department of Commerce Internet Policy Task Force is considering a disturbing proposal that would allow anyone to remix, mash-up, or sample music without asking permission.  Some people argue that this change would be beneficial by making it easier to use pre-existing music as the building blocks for new works.  However, every artist I’ve talked to about this issue agrees that the proposal would be disastrous for creators and their music.

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Instead of continuing to require permission to use a song, Commerce suggests creating a “compulsory license”.  Imagine a song by a gay artist remixed into a work filled with homophobic epithets, or white supremacists using black artists’ music in a song promoting their hateful viewpoint.  The potential for abuse of a compulsory license is huge.  Further, some artists simply don’t want their work altered at all, period.  And that decision should be completely within their rights.

Our founding fathers acknowledged the importance of a rich culture that encourages creators to release their works, and the Constitution rightly requires copyright law promote the arts for the benefit of society.  A compulsory license would do the opposite.  By taking away an artist’s right of approval, it would discourage many artists from releasing their music in the first place.

Today’s marketplace for remixes, mash-ups and sampling is thriving under the current, permission-based system.  If it ain’t broke, don’t fix it!  There are some artists who freely allow remixes, mash-ups and sampling of their work, by, for example, releasing song “stems” to fans and encouraging them to make their own works (Radiohead and Trent Reznor have both done this), or releasing their music under a Creative Commons license.  Others license their work as samples to other artists where they feel good about the use, and some deny countless other requests for sampling because they simply don’t want to grant permission. This is, and should remain, the artist’s prerogative.  The beauty of the current system is that artists have the right to choose how their works are used, thus motivating them to keep producing their art.    

This week, I submitted a comment paper to the Department of Commerce in response to their Green Paper on Copyright Policy, Creativity, and Innovation in the Digital Economy.  I submitted the comments on behalf of myself and my client, Steven Tyler, along with letters of support from Don Henley and Joe Walsh of the Eagles, Dr. Dre, deadmau5, Mick Fleetwood of Fleetwood Mac, Ozzy Osbourne, and Britney Spears—artists who felt compelled to speak out directly on this issue.  We chose to include these artists because they represent a diverse cross-section of performing artists and songwriters, and our support is growing by the day as more artists hear about our advocacy efforts. 

Lawmakers and policymakers must not allow a compulsory license for remixes, mash-ups, and sampling.  Such action would force artists to turn over their art for uses they do not agree with—whether they disagree with the message of the use or do not agree with alteration in general—and risk discouraging the creation of art.  The current system is thriving while giving artists the power of approval.  There is absolutely no need for reform.   We must preserve an artist’s right of approval—the most important right they have. 

LaPolt is an attorney representing singer/songwriter Steven Tyler.