The term ‘disc jockey’, now commonly abbreviated as DJ, was coined in 1935 by the American radio commentator Walter Winchell. They were originally the operators of machines that played phonograph or gramophone records (now known as vinyl records), but, with the technological advancement in the modern era, DJs have largely shifted from vinyl discs to compact discs and now to computer media files which are more portable and accessible. Copyright, itself is an already complex topic, but for DJs who are not only producers of music but also performers and consumers of music, there are many more layers to consider. This essay will give a brief overview on DJs, copyright, the economics associated with copyright, some key organizations associated with copyright, and how it all relates to DJing. It will also explore some of the contemporary shifts in music and how it might relate to copyright matters for DJs.
The Roles and Types of DJs
The term ‘DJ’ is now used as an overarching description of someone who mixes recorded music. DJ equipment has become increasingly sophisticated, but fundamentally, it consists of equipment to simultaneously play from at least two sources of recorded music. These sources are then mixed in various ways. DJs often utilize techniques like crossfading or beat matching to create seamless transitions between different recorded music tracks and they may also add many other elements such as speech, sound effects, filters, reverb, synthesizers or scratching to put their own unique elements into the mix. DJs also play their mixes to audiences, which could be in a number of different settings such as bars, clubs, weddings or on the radio. Some DJs are also music producers and compose original music or remix other works. The talent of DJs is perhaps one of the most underappreciated, after all, it looks like they are just playing a few recorded songs on a computer which almost anyone can do nowadays. DJs need to have a vast amount of knowledge, not just technical knowledge on operating their machines, but also knowledge on current trends in music and what songs or genres are popular. This is analogous to the responsibility of doctors, who must keep updated on current treatment options and current trends in disease. DJs select recordings from the seemingly overwhelming amount of new music and mold a unique performance which is often improvised and tailored to the crowd.
Presenting, performing or producing? DJing is a unique element in the music industry. It doesn’t seem to fit in with recorded music because it’s not just as simple as hitting ‘play’, but it is also not entirely live music either because recorded music is still being played. Like dancers who add their own elements to recorded music using movement, DJs add their own transitions, playlist and sound effects. DJing adheres to broad copyright practices in the music industry, but because of its unique hybrid nature it also has some unique matters, this will be explored in the following segment.
Copyright for DJing
As a foreword, it is important to point out that copyright is a deeply complex subject with many intricate details. However, this essay will explore some of the broader concepts. In addition, ‘public’ performance in a copyright sense is not necessarily restricted to actually performing in public. Any event or function involving music such as a club or even corporate events can be considered public even though they are not considered public in the traditional sense. There are, however, exceptions for any personal or family events such as weddings or birthday parties. In this essay, any mention of ‘public’ is regarding the definition of public in a copyright sense.
The Copyright Act 1968 is the fundamental act governing copyright matters. Contained in the Act is legislation about copyright, moral rights and performer’s rights which are discussed in the next segment of the essay. DJs primarily need to consider: Copyright in music, lyrics and sound recordings. Copyright owners in these materials can copy their own work (e.g., making a recording of their work) and can also perform or communicate their work to the public (e.g., broadcasting their work on radio). For DJs to be able to legally communicate copyrighted material as part of their performance in public, they require permission from the copyright owners of the works that they have used. Generally, the owner of the copyright material is the creator of the work, however, it could also be a record company, music publisher or a copyright organization such as the Australasian Performing Right Association (APRA), the Australasian Mechanical Copyright Owners Society (AMCOS) or the Phonographic Performance Company of Australia (PPCA). These rights are often assigned to these groups when the artist signs a publishing or record deal or joins these copyright organizations. One way for DJs to obtain these copyright permissions is by purchasing appropriate licenses from these music copyright organizations.
Copyright Organizations and Licensing
The APRA was established in 1926 and originally dealt with public performance and communication rights. The AMCOS was established later in 1979 and dealt with the economics that came with music copyright, specifically the management of mechanical royalties. In 1997, these two organizations formed an alliance (APRA AMCOS) and now collectively deal with both their original roles. Currently, the APRA AMCOS claims to represent over 100,000 members who are songwriters, music publishers and composers. They issue licenses which are authorized by the Australian Competition and Consumer Commission (ACCC), to groups or individuals wishing to play, perform, reproduce or record the music of its members. The Phonographic Performance Company of Australia (PPCA) is another organization involved in copyright licensing, also issuing licenses for the performance, communication, reproduction and recording of its members’ music. Recently this year (2019), the APRA AMCOS and the PPCA founded a joint licensing initiative called ‘OneMusic’ which aimed to simplify music licensing. Its establishment would eliminate the need for separate licenses allowing licensees to get a single bundled license that includes all the permissions required for the public presentation or performance of music. Not Unlike the APRA AMCOS, OneMusic also works with the ACCC for its licensing.
These organizations collect most of their revenue from the licenses they issue, and they distribute surplus revenue to its members and partners. The distribution policies vary for each organization, but for the most part, artists are paid royalties in amounts based on how much their music was used. Unlike mechanical royalties, where there is a set percentage payable to the copyright owner, public performance figures are estimated. Again, different organizations have their own policies for this. The PPCA policy mentions that the PPCA allocates royalties based on the frequency of use if that data is available, for example on television or radio logs. They also use data from third parties, such as music recognition technology data, which is compiled from recognized sound recordings played in households. DJs are also a major source of usage information as they have knowledge on the current trends in music. ARIA collects weekly data from several DJs working in active venues across Australia to make the ‘ARIA Top Charts’. The PPCA also uses this data collected by ARIA to help allocate royalties. In addition, the PPCA also analyses data collected from DJs performing at clubs, music festivals, and other music events. With all this information, an estimate of the usage of each song can be made and royalties can be distributed according to that.
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Moral and Performance Rights
In addition to copyright there are also moral rights that DJs need to be concerned with, these are: right of attribution, entitling the creator of the work to be properly credited; right against false attribution, entitling the creator of the work to act if his/her work is not appropriately credited; and right of integrity, entitling the creator to act if his/her work is treated in a way or modified in a way that could damage the creator’s reputation or honor. As DJs use many music tracks in their performances and/or compositions, they need to be careful to not infringe on any moral rights and should, in most cases, request permission for any remixing or manipulation of the works of other artists.
A negative example of this is a 2012 federal court case, involving Jaime Fernandez, a Perth based DJ known as ‘DJ Suave’, and Armando Pérez, a world-renowned rapper, better known as ‘Pitbull’. The case was concerning the infringement of Pérez’s moral rights regarding the song ‘Bon, Bon’. Fernandez had inserted an audio recording to the song, provided to him by Pérez, to promote an Australian tour, of which was cancelled. The audio recording, which was more specifically an ‘audio drop’ according to the court database, was of Pérez saying, “Mr. 305 and I am putting it right down with DJ Suave”, which the court found to falsely represent Fernandez as a subject in the song. Thus, because of the Fernandez’s infringement on moral rights, Pérez was awarded $10,000 in damages.
When DJs perform, they are also entitled to performer’s rights. This allows them to give or refuse consent to their performances being recorded, reproduced or communicated. As of the 1st of January 2005, non-commissioned performers will also share some copyright in the sound recording if they contribute to the sounds of the live performance. This is more relevant for less experienced or popular DJs.
Contemporary Shifts
With the evolution of technology, there have been several large changes in music recording, manufacturing, marketing and distribution. Modern digital music has better accessibility, mobility, and can be reproduced instantaneously. DJs can also manipulate them using computer software. The consumption of music has also largely shifted away from buying music as a physical item and is now more geared towards buying access to a lot of music. This could be seen in the recent success of music streaming services such as Spotify which provides access to large banks of music. It must be noted that streaming services are mostly licensed for private or domestic use, hence DJs are not allowed to use these services in their performance to the public.
There have also been copyright issues surrounding playlists on these services. One such example was a 2013 case, in which Ministry of Sound Group, a multimedia business based in London, sued Spotify in 2013 because of Spotify subscribers making playlists which were based on their playlists. Ministry of Sound Group argued that the playlists should be copyright protected due to the selection and arrangement process involved in creating them. The matter was later settled out of court with Spotify removing the playlists. This case highlights the significance of another important aspect in copyright that is relevant to DJing: making a playlist is essentially another role of a DJ.
For DJs and many other musicians, the Internet has allowed them to reach a much larger audience. However, this has also made copyright harder and harder to enforce with the overwhelming number of recordings on online platforms such as YouTube or SoundCloud. Ideally, if any copyrighted material has been used by a DJ in an uploaded recording (e.g., a remix on YouTube), an agreement should have been made with the copyright owner of the work regarding its use and any royalties involved (e.g., advertising royalties made from the streaming platform).
In some instances, it might be beneficial for a song to be used in a DJ performance by a popular DJ, which would expose the song to a larger audience. This is comparable to the marketing strategies employed by business ventures such as VEVO which upload music to online platforms like YouTube. VEVO is like the DJ in this analogy, being a large well-known business entity, which presents music giving the artists more exposure under the brand.
Conclusion
Disc jockeys originated from humble beginnings operating new music playing technology, but have since evolved to performing, producing and presenting. Nevertheless, they are also massive music consumers and fountains of knowledge. Innovation in technology has caused the music industry to dramatically shift, especially in recent years with the technological boom. However, these changes also bring about unique issues surrounding copyright especially for DJs whose art is a hybrid of music and technology. It would not be unreasonable to presume that with even more developments in technology in the rapidly adapting music industry, there will be even more factors and new issues adding to the complexity of copyright in DJing.
Bibliography
- Australian Copyright Council. Music: DJs. Sydney: Australian Copyright Council, 2019. https://www.copyright.org.au/ACC_Prod/ACC/Information_Sheets/Music__DJs.aspx
- Australian Copyright Council. Mashups, Memes, Remixes & Copyright. Sydney: Australian Copyright Council, 2014. https://www.copyright.org.au/ACC_Prod/ACC/Information_Sheets/Mashups__Memes__Remixes___Copyright.aspx
- Brewster, Bill and Frank Broughton. Last Night a DJ Saved My Live: The History of the Disc Jockey. London: Headline Book Publishing, 1999.
- Fisher, Mark. Something in the Air. New York: Random House, 2007.
- Watt, Andrew. “Business of Music: Lecture - Week 4”. MUSI20206: Business of Music. Melbourne, VIC: University of Melbourne. August 23, 2019. Lecture recording. https://echo360.org.au/lesson/G_ef0160a2-eeb9-4e72-8141-20493eee9e69_5690fb7e-b960-4093-84f1-106387f6ebda_2019-08-23T14:05:00.000_2019-08-23T16:00:00.000/classroom
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