After DJ Drama was arrested for selling mixtapes by US Police over the initiative by the Recording Industry Association of America (RIAA), questions again have been thrown up regarding the legality of mixtapes. As the Indian Hip Hop scene is showing indications of progressing onto the next level, where several underground artists have put out mixtapes already such as Srik's - The Pledge, Enkore's - This is me, Frekey's Ganj-ha and some of who are planning to such as Smokey's - The Cellotape, Gaggy's - I Am Home, Mash's - The Journey, FBI's - Inkounter, Big Kronik's - Thoroughbreed. SOS's - The Last Resort and my own titled as Rapper's Law, it becomes relevant that we make ourselves well aware of the legal standing of mixtapes as per Indian Laws as well apprise ourselves of the general understanding of a mixtape.
The term mixtape applies to a variety of sound recordings, the legality of which may or may not be clear instantly as often its a mix of everything. The definition for a mixtape is very wide and they may include original vocals over popular instrumenta
ls, remixes of commercial tracks by DJs, a mash-up of several tracks over which copyright may or may not subsist (depending upon how much substance of the under-lying copyrighted work has been included). Mixtapes may be about tracks from newer artists or remixes of tracks of already established artists as well. As is clear from the variegated aspects highlighted about mixtapes, gauging legality for a mixtape cannot be on a general platform and assessments have to be made on a case-by-case basis. Still it becomes relevant to determine criteria which may help us to understand if we are pouring our music out within legal boundaries.
Before that, a history of mixtapes has to be in order. Mixtapes back in the days were largely considered as party music compilations where consumers would request DJs to put a collection of their favourite tracks usually laced with personal shoutouts by the DJs. Earlier mixtapes were put out by the pioneer DJs of Hip Hop - Grandmaster Flex and Afrika Bambaata and such compilations were sold on the streets for money. Thus the very beginnings of mixtapes have been mired in illegality through sales over material for which copyright permissions were not sought expressly or otherwise.
Nowadays mixtapes have evolved into a much more complex musical form than its earlier counterparts and may contain several different compilations of various artists, or scratched recordings, or remixed tracks from popular artists, or just about anything. Pinning copyright liability in such instances becomes extremely difficult. However one thing is clearly certain that you cannot enrich yourself unjustly by using some one else's creation. Therefore one must not profit from any such mixtapes if he seeks to put them using other's creations without first obtaining prior permission from them. Usually copyright infringement cases are successful largely on the basis of proof of hurt profits and denial of marketshare. So if you are distributing your mixtapes without charging anything, then in those cases copyright infrignement would be difficult to sustain. Moreover, no label would proceed if copies issued are fairly less in number.
If you are using beats downloaded from the internet over which you write your own lyrics and record with your own vocals, you may be allowed to distribute the copies of your mixtape freely as long as you are not selling them for profit. If otherwise, when you intend to sell your mixtape for profit, then without obtaining prior permission from copyright owners and acquiring adequate rights can incur criminal liability upon you for wrongful gain and private profit-making on other’s creation. The terms & conditions for most of the beatmakers who provide beats for download on the internet allow users to freely use their beats for promotional purposes only and as long as there is no sale of any copy for profit. So in such cases, there is already an implied permission by the beatmakers to use their beats for your mixtapes if you are intending to distribute them for free and therefore you may not have to apply for permission from the copyright owners. However in other cases, it is advisable to seek prior permission to be on the safe side and also mention it in your CD label that permissions have been sought from so and so artists and/or producers. Artists must also take care to not use any logo or trademark belonging to any other company, business, artist, label etc on their CD covers so as to avoid violating trademark laws. It is interesting to note that the “Parental Advisory” label on CDs is actually a trademark owned by RIAA. However you can use such an advisory sticker on your CD labels without violating any trademark laws because such a trademark has become widely used now. A trademark owner loses the right to sue over a trademark if such a trademark has become hugely popular and is widely used by everyone, which is the case in respect of the Parental Advisory Trademark also. This is the reason why no one can allege trademark infringement if someone uses Xerox for photocopying machines because it has become widely used and synonymous with photocopying that even though Xerox was originally a trademark, no violation will occur anymore if its used by others who are not owners. Also it is a best practice to mention your address and contact details also on the CD Cover so as to not make the authorities suspicious. They would be suspicious where address is not mentioned as that is generally considered as a way to escape arrest and seizure by not providing any or incorrect address.
There are several certain other grey areas in our copyright laws relating to mixtapes, but however they would be dealt with in subsequent posts as they would be outside the scope of the present context. Nevertheless, mixtapes have always been used as a great marketing and promotional tool by upcoming artists and for gaining Street Credibility by established artists. Mixtapes have largely collaborated to a vibrant under-ground Hip Hop and it is but only a logical step forward in a rapper's journey before he breaks through to super stardom as was in the case of 50 Cent's rapping career. Although on the other hand, record labels see only violation of their statutory rights in the world of mixtape, where they see the works of their signed artists are being used in an unauthorized manner.
-