The topic is more than just relevant. This confrontation has been going on for a long time and is reflected in theses, articles, reports, practical consultations of many lawyers in the field of intellectual property. Perhaps this ambiguity never caught my attention, if not for the life situation – the customer’s order of a contract for the complete alienation of remix rights. But what kind of rights and what in response had to be heard is a separate story, which became a story in the form of this article.
First, let’s turn to the definition of the concept of remix, as such.
So, REMIX (from English – Re-mix) is repeated or double blending; a version of a musical work is created by “mixing” several parts of the primary composition, layering various sounds on it, special effects, changing tempo, tone, rhythm and the like.
The remixing technique developed in parallel with the improvement of recording equipment. Subsequently, a whole direction appeared, the competence of which was to obtain new audio products by processing musical material recorded in the original recording studios in an outdated way using modern equipment. This led to the development of new sides of sound and better quality of already known popular works due to the latest achievements in sound processing technology, new effects and compensation for quality losses when using outdated media and methods.
Later, a broader rethinking of this task led to the separation of remixing as a separate creative direction, the purpose of which is to expand, change, sometimes contrast the creative idea of a remix of a musical work with a priority plan.
Basically, remixes are in demand in the so-called pop music (popular music), where they have formed as a whole direction of various remixing technologies. The first remixes – precisely as altered versions of the original songs – were made in Jamaica in the late 1960s. Modern dance remixes date back to the mid-1970s, when there was a need for more rhythmic and time-consuming versions of contemporary songs for disco clubs. Copyright owners often make different remixes in various contemporary musical styles today. Moreover, the rather popular direction of development of remixes is not least dictated by the rapid development of modern technology and opportunities to create extraordinary masterpieces from simple musical works. What still has problems with is obtaining permits for such creations from authors of text and music of musical works as owners of the right to recycle, which is represented in this case by remixing.
Remixes are made by the authors themselves (copyright owners or owners of the primary piece of music) or specialists commissioned by the authors or copyright holders. Remixes are also made by composers, music producers, DJs, or just music fans. It is the latter category of faces that has found its creative reflection in remixing thanks to the development of computers that help create remixes at home.
Thus, the remix is an equally valuable product of the creative work of DJs, composers, music producers, sound engineers, which has received great recognition from the public and its creators can truly be called the heroes of our time. However, the meaning of the term remix is not always perceived correctly, as a result of which sometimes music lovers confuse remixes with versions.
Important for the protection and protection of remix rights is the substantive difference between remixes and mixes, megamixes, which is that the mix consists of various musical works, and a remix from one, that is, a remix is considered to be based on one musical composition, on which various samples and effects can be superimposed, in the process of which changes in the sound speed and tone of the sound are possible, however, the main component of the original work is preserved. But if in a single song there is only a rearrangement of instrumental parts, chorus, verses, etc., then such a product cannot be called a remix, because this is only a version of the song. Such the most common versions of musical works should be considered by everyone: Instrumental Version, Extended Version, Radio Version and the like.
The basic concept of creating remixes is to show the original composition in another distinctive form or style, and also endows the second life with hits, the popularity of which decreases over the years. But sometimes even despite decades – old compositions come out in a new format (style) and again gain their popularity on world dance venues. You can even find cases when the “Remix successors” of the original track – remixes, have much greater popularity, since they surpass the original track thanks to a new creative approach to composition, sound, or as a result of changing the main musical style to a more modern one – acquire a new audience of listeners. That is why music producers, arrangers, copyright owners for this musical material are primarily interested in creating remixes. DJs are also interested, who in this way demonstrate their creative capabilities, potential, creating remixes for the clubs in which they play, for radio stations, recording studios. Nowadays, modern computers have opened up the ability to create remixes and mixes using DJ programs at home, as a result of which the so-called Promo DJs have become widespread on the Internet.
The remix, like any other product of creative activity and an object of intellectual property, can be criticized, and sometimes quite harshly. However, the created remix is the result of individual creativity and is designed for an audience with specific musical tastes. Both one style in music replaces another, and remixes acquire various style colors, given the cultural and thematic development in each individual time interval. There is a dynamics of development in music, so when listening to a mix or remix, you should focus on technical overlays during music mixing, and if there are none, then this product does not deserve negative criticism.
The creator of the remix processes the primary (original) work in a certain way and as a result creates a derivative work. Moreover, it is rather difficult to assert whether such a derivative work will become a full-fledged musical work, without even having an idea of the result and therefore, solely guided by the concept of a remix of a musical work, is not correct enough.
The author of the remix (namely, copyright, since we are talking about creating the original sound of the primary work, and such a revision gives reason to consider the essence of authorship) arises from the moment the derivative work is created and does not require mandatory certification. For the emergence and protection of copyright by law, registration of a remix of a work or compliance with other formalities is not required (Article 11 of the Law of Ukraine “On Copyright and Related Rights”). However, the author of such a derivative remix work exercises his rights subject to the rights of the author of the primary (original) work. And it should be taken quite carefully to the fact that when creating a remix, the original musical work itself changes in its structure, ideological performance, etc. its integrity is violated, and the work itself is modified. The author of the primary work may disagree with such a revision, since the author of the primary work has a personal non-property right, such as the right to inviolability of the work and the protection of his work from distortion, twisting and the like. The legislator, article 14 of the Law of Ukraine “On Copyright and Related Rights,” suggested that without the consent of the author, amendments, abbreviations and additions to his work are not allowed, accompanying the work when using it with illustrations, prefaces, afterwords, comments. At the same time, the author has the right to demand the protection of honor, dignity and business reputation if they are violated by curvatures or other changes in his own composition (Articles 50-53 of the Law of Ukraine “On Copyright and Related Rights”). That is why, taking into account the above, it is necessary to obtain consent to the processing of the work from the author of the primary musical work. The form of such consent is provided by the Litsenzionnym Agreement specifying all material conditions (prices for the right to process, territory of use, list of assigned rights, term, etc.) in writing. Failure to comply with the form of the contract established by law entails the invalidity of the transaction, as a result of which the author of the remix simply will not receive the rights to process (Article 32 of the Law of Ukraine “On Copyright and Related Rights”).
Thus, the conclusion is obvious. To transfer the rights to the remix, it is necessary to prepare an Agreement on the transfer of exclusive property copyright to the remix. After all, the author of the remix is directly the creator of the remix. However, use your remix in any way (including posting on your website for free download, as this is a type of public playback where users get access from anywhere) the author of the remix is not entitled unless prior consent is obtained from the authors (music and text) of the primary musical work, as well as, crucially, performers and producers of phonograms, which are generally referred to as copyright holders. Which, in turn, answers the next question about expanding the category of rights – both copyright and related. This follows from the essence of creating a remix – processing not only the copyright object (musical work, either music or text), but also the object of related rights (performance of music, text, as well as recording of performance – phonogram). The right to processing as one of the exclusive property rights of the author is defined in Art. 15 of the Law of Ukraine “On Copyright and Related Rights” gives every reason to consider, by analogy, the rights of both the author and the performer regarding musical works as objects of intellectual property.
Therefore, it is possible to perceive the remix even more broadly as a way to create derivative works – alterations by remixing, arranging, changing and the like. And accordingly, the author of the remix owns the copyright for the remix, which he can implement, like the usual author of the work, with the obligatory coordination and observance of all the copyrights required by the legislation in the field of intellectual property, the copyright of the primary (original) musical work. Remix, if it is created legally, the author of the remix has the right to use it independently, at his discretion, and the author will receive all the income from its use alone. But if the remix is created without concluding the corresponding License Agreement in writing with the copyright holder of the original work, then such a remix will be considered illegal and in the case of its use, contrary to obtaining permits from the author of the primary work, the author of the remix can be prosecuted (as civil law, economic law, or even criminal).
And, of course, it will not hurt to play it safe and take care of the proper evidence of your own creative work during the departure to familiarize yourself with potential clients or recording studios, radio stations and the like. Therefore, it is better to send a remix in slightly underestimated quality indicators, as well as use a number of legal means: documentary evidence of the transfer on media with the serial number of the author’s remix; Send by e-mail and save files alternative preservation of the work at home or using technical means, etc.
Also, when it comes to remixing, most perceive the remix as an object of exclusively related rights, since we are talking about a phonogram, which is an integral part of any remix. If the remix (perhaps even talking about a medley) includes several phonograms as components, then, accordingly, permission for such creation and use of a continuous remix must be obtained from each of the copyright holders of such phonograms separately, concluding appropriate license agreements. Moreover, in this case, the components of a musical work that are used in the creation of remixes with the citation of such works should not be confused. Here is a slightly different legal nature of the creation and use of such an object of intellectual property law.
So, processing, as a type of property rights of the author, is one of the most difficult ways to use the results of intellectual property, since it is primarily associated with a number of subjective factors – the author of the primary original work must agree that his work will be changed. After all, processing is considered a creative activity, and the person carrying out such processing is considered the author of the revised work – hence the consequences associated with the emergence of intellectual property rights from the author of the revised work: copyright, name rights, related rights to performance, phonogram and the like. And the main types of right to processing can be called: arrangement; remix, mix; translation and the like. Moreover, the most difficult from a legal and creative point of view is the remix.
And at the end of the article, I would like to once again focus on the fact that it is the remix that is the object of copyright, when all the legal grounds for this arise. It is also the remix that is the object of related rights, provided that as a result of the remix recording, the phonogram is created, performed, attracted to perform third parties and recorded the resulting product at the recording studio. There are two types of transfer agreement here for the alienation of the rights to the remix: adjacent and copyright at the same time. Only when signing and drawing up such types of contracts can we talk about the comprehensive transfer of rights, management and disposal of these rights in full.
What the author needs to know when reworking (creating a remix of the work):
- Almost always, the author of the primary original musical work wants to familiarize himself with the results of the processing, so it is necessary to prepare material for the processing of the primary work (even if it is a translation of the text, then submit each line of the revised text to the court).
- If the primary original piece of music is co-authored, then it is necessary to obtain permits from all co-authors separately, drawing up relevant contracts with each.
- If during the preparation of the material an original phonogram is used, which is processed, then it is necessary to obtain permission from the owners of the rights to the phonogram.
- The author of the original work can express his wishes or comments regarding the outcome of the revision, and the author of the remix should be ready to listen to such comments and wishes, perceiving, accepting and discussing them. The author may disagree that this is a reworking of his work. Then we can talk about creating a new work and register it as our own original new work, and not as a derivative of copyright.
- The permit for processing may not be obtained. There are musical works, authors (descendants), owners of rights to which do not issue such permits for processing. There are a lot of such examples, which is an exclusively subjective attitude to the creative luggage of a particular author or performer of a musical work.
- Obtaining permission in a form specified by law can last a long time, especially when it comes to the processing of a foreign work.
- Recycling a work is not free in most cases. The cost of processing is significantly influenced by the degree of recognition of the work: the more famous and popular the work, the greater the cost of obtaining the rights to processing. It should also be prepared that the author of the derivative work is not allocated a share of the income from the use of the result of intellectual property or this share will be very insignificant.