Official.fm, the free online music promotion site, has taken the decision to close and delete all accounts with mashup content on September 1st. We hope to appeal to their love of all music and reach some fair compromise.
On Friday 26th July many mashup producers received an email from Official.fm stating:
"We have received a notice of copyright infringement for some of the songs you uploaded on Official.fm.
As a result, your account will be deleted on September 1st."
It seems very harsh to us that because SOME tracks received complaints, the tracks that have not, and our entire accounts, must be deleted too. This seems an over-reaction and one which has some of us questioning their motives.
While we appreciate that the Official.fm "terms of use" state we must own all rights to the content we upload*, it must be noted that Official.fm has a "mashup" category with which we could tag our tracks. Why have a mashup category if we aren't allowed to use it?
As early adopters and promoters of Official.fm we feel that we have been lulled into a false sense of security and used to popularize the site before being dumped unfairly when we are no longer needed. This is not the first time Official.fm has done this either. A re-branding and "server migration" resulted in a similar purge of mashup accounts which left swathes of the internet covered in dead links. Coincidence or marketing ploy? We have our doubts.
Regardless of the legalities of mashups the blanket deletion of loyal members with no recourse or discussion quite frankly stinks.
What do we want?
We want to stay at Official.fm. They have a nice interface, great embeddable players, unlimited hosting and stats galore.
We would like to be treated as a legitimate artform under the "fair use" and "transformative works" provisions of copyright law . We will comply with any copyright complains immediately and we wouldn't be opposed to an automatic takedown system should a copyright holder object.
If Official.fm can provide us a platform to showcase our art we in turn will do all we can to promote their service as the most forward thinking and progressive music host available.
If, however, no compromise can be reached we will move on and take our followers with us. Mashups in their current form have existed for more than a decade, they are here to stay; where exactly remains to be seen.
The Mashup/Bootleg Community
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*We assumed, perhaps wrongly, that by agreeing to the terms we shifted the burden of legality from Official.fm to ourselves and we firmly believe we do have the right to create and promote our works under provisions in copyright law.
We comply with all complaints from rights holders and when issued a Cease and Desist we take down the offending tracks immediately. In rare cases where their decision has been challenged under "fair use", the rights holders drop the complaint rather than take it to the courts where a ruling against them would set a precedent and open the floodgates to a world of legal mashups which they cannot control. This finely balanced legally grey area has been the status quo for over a decade.
More info on why we believe mashups/bootlegs are a legitimate artform:
- Mashups are transformative creative outcomes, they are new and unique artforms that are distinct from the prior works sampled.
- Any mashup is legal unless it has been otherwise jurisdicticted (an artist is innocent until proven guilty in court of law). Deleting the accounts of mashup artists perpetuates an incorrect assumption of ‘guilty until proven innocent’.
- A lot of countries have legal provisions for ‘fair use’ or similar (encompassing works that transform and/or parody other prior works). In a recent example where the principles of fair use were upheld, the US Appeals Court ruled in favour of the visual artist Richard Prince appropriating imagery from other artworks and using it in a visually distinct way (http://www.hollywoodreporter.com/thr-esq/appropriation-artist-richard-prince-prevails-446479). In their recently published ‘Code of Best Practices in Fair Use for Online Video’, The Center for Social Media argue that “quoting in order to recombine elements to make a new work that depends for its meaning on (often unlikely) relationships between the elements” is an acceptable form of fair use (see http://www.centerforsocialmedia.org/fair-use/related-materials/codes/code-best-practices-fair-use-online-video). ‘Recombining elements to make a new work’ is a central characteristic of all mashups.
- Any creative work, once it is released in public, attains a level of ‘cultural currency’ (establishing a set of ideas/themes/values etc that it signifies). It is healthy for an artist to wish to transform, expand and comment on the cultural currency of prior work by other artists - to draw on these pre-existing ideas, themes, values and motifs, and to produce new work that responds to it. Rocket scientists build upon the research of other rocket scientists, computer programmers build on code written by other computer programmers, judges build on case law that was written by other judges. Artists, similarly, need to be able to build on the work of other artists.
- There is no evidence whatsoever that a mashup decreases sales for the sources sampled, in fact the opposite is demonstrably true. If someone hears (and/or sees) a mashup then it brings the prior work to an audience’s attention again. A mashup actually promotes the work of the artists who have been sampled. Forcing mashup artists to take down their work does not necessarily represent the wishes or best interests of the artists sampled.
- The creative act of taking source material and modifying it is legally distinct from an act of ‘piracy’ (taking/disseminating something you haven’t purchased). Piracy is often part of the thematic/creative content in mashup culture (eg the visual motif of the pirate flag in the Bootie logo), but it does not necessarily follow that all mashups are acts of piracy in a legal sense. If someone posts a mashup for download it is not an instance of ‘piracy’, it is the dissemination of a new and unique creative work.
