Tag Archives: Electronic music

Sampling and Remixes

The articles about arrangements in the “Good to know” series have so far focused on “conventional” arrangements of musical works. Sampling and remixes are two additional and specific forms of arrangement. What rights need to be secured when existing recordings are used to produce a new work? What agreements have to be contracted? Text by Claudia Kempf and Michael Wohlgemuth

Sampling and Remixes

From the copyright point of view, remixes and sampling are specific forms of arrangement. (Photo: Tabea Hüberli)

Sound samplings come in many different forms and techniques. But they all have one thing in common: they incorporate parts of a musical recording into a new work. This regularly raises the question whether such parts of works or samples are protected by copyright or – especially in the case of very short sound sequences – whether they may be used freely.

In the case of a remix, an existing production is taken and re-arranged and re-mixed. This may involve taking apart a whole work and putting it together again with the addition of new elements. Theoretically, the degree of re-arrangement in a remix may range from a simple cover version to a completely new arrangement. As a rule, a remix is simply an arrangement. Remixes generally keep a work’s existing title and add a tag which refers either to the form of use (radio edit / extended club version, or similar) or the name of the remixer (generally a well-known DJ).

By contrast with conventional arrangements, in addition to using an existing work to create a derived work or arrangement, samples and remixes also use an existing sound recording. Therefore, one must distinguish between two categories of rights: the rights of the authors of the original work on the one hand (copyrights), and the rights of the performing artists and producers of the recording on the other (neighbouring rights).

Securing the copyrights

In principle, copyright law protects entire works of music, as well as parts of works which meet the qualifying criteria, provided the term of protection of 70 years (after the death of the last deceased author) has not yet expired. The melody, a solo or other elements of a work can therefore be protected and may not be freely used if they qualify as a work of an individual character. This must be determined on a case-by-case basis. The more marked the characteristics of the sampled element, the less likely you will be able to use that element for free. The notion that two bars, nine notes or two seconds of music can be used for free is only a rumour since, regrettably, there is no clear delimitation defining when a part of a work has an individual character.

So if a protected part of a third-party composition is sampled and incorporated into a new work, and the part concerned has an individual character, the arrangement rights in the original work must be secured from the publisher or, in the case of unpublished works, the author. This is done through a sampling agreement or an arrangement licence.

In the case of a remix, a distinction is made depending on who creates the remix: the author of the original work or a third party. For copyright purposes, the original author is essentially free to create remixes of his own work. If, however, the original work was composed by several people, he will need permission from his co-authors to create a remix; and if the original work was published by a label, he will need the permission of the label to use the sound recording (neighbouring rights).

If the remix was created by a third party, a distinction must be made depending on whether the remix was commissioned or made on the remixer’s own initiative. In the latter case, the rights must be secured from the author or his publisher by means of an arrangement license (often referred to as a “remix agreement”).

Securing neighbouring rights

Since sampling and remixes borrow from pre-existing sound recordings, the rights in the recording and the artists’ performances must also be secured. As a rule, the rights of the performing artists are assigned to the record producer or the label when the production is made. These rights are also limited by a term of protection. Currently, the term of protection for recordings in Switzerland is 50 years after the first publication, provided that the recording is actually published for the first time within 50 years of the recording date. Otherwise, the recording date is decisive for the expiry of the term of protection. In the EU, however, the term of protection is 70 years. In the framework of the revision of the Copyright Act currently before the Swiss Parliament, it has been proposed to increase the term of protection under Swiss law in line with that of the European Union.

If the term of protection is still valid, the rights in the recording have to be secured. The rumour that “two seconds are fair use” is fundamentally false. However, there is controversy as to whether recording protection applies to the shortest sound sequences. The European Court of Justice is currently examining this very matter in “Kraftwerk vs. Pelham: Metall auf Metall”.

The rights in a recording are normally held by the record producer, i.e. by the party who bears the economic risk of the recording. The producer can be an artist himself (own productions), a record company (“label”) or a broadcasting company, and the corresponding rights must be secured accordingly. Colloquially, the rights in the recordings are often referred to as “master rights”.

NB. A work’s term of protection may have expired while the recording is still protected. In this case, the rights in the work no longer need to be secured, but the rights in the recording still do. This would also apply to recordings of natural sounds and animal cries, for example, which are not protected by copyright. In this case, the recording, as the economic output of the producer, is protected just the same.

Main points of a sampling agreement

Depending on the circumstances, the sampling agreement (also referred to as a “sample clearance agreement”) regulates the rights in a work and its recording. When these rights are all held by the same party, a single agreement can be made. As a rule, however, two agreements will be concluded: one with the author or his publisher, and the other with the record label. The following points must be covered:

  • Name and address of the contracting parties (pseudonyms if applicable)
  • Subject of agreement: work and/or recording. Duration of the sample. How exactly may the sample be used? Can it be altered?
  • Scope of licence: what rights are granted? Is the licence exclusive or non-exclusive? For which territory and for how long?
  • Rights splitting/licence shares: in most cases, rights are determined by the shares of the participants in the work. The authors of a new work and the rightholders of the original work are all entitled to a share in the new work. The sampling agreement must in any event indicate the splitting. In addition to this rule which depends on the economic success of the new production, the original rightholders may demand a lump-sum fee for the arrangement right. Moreover, the royalty for the use of the recording usually takes the form of a percentage per sold copy of the new production, or of a lump-sum fee.
  • Distribution timetable: when and how often are rights settled?
  • Warranties: the rightholder must warranty that he holds all the relevant rights in the sample.
  • Place, date, signature of rightholder
  • Governing law and jurisdiction

Main points of a remix agreement

A remix agreement must specify whether the remix is commissioned or the remixer is acting on his own initiative and applying for a remix licence. Depending on the premises, the agreements can be quite different. Moreover, in the case of a remix and depending on the circumstances, the rights in the work and the recording also have to be regulated. When these rights are all held by the same party, a single agreement can be concluded. As a rule, however, two agreements have to be made: one with the author or publisher, and the other with the performing artist or record label. The following points must be covered:

  • Name and address of the contracting parties (pseudonyms if applicable)
  • Subject of agreement: work and/or recording. Duration. Title of the remix. Credits.
  • Production terms: delivery date, special requirements (if commissioned)
  • Scope of licence: what rights are granted? Is the licence exclusive or non-exclusive? For which territory and how long?
  • Fees: as a rule, a lump-sum fee is agreed, more rarely a participation in sales and other licence fees such as sync fees.
  • Rights splitting: as the arranger of the newly created work, the remixer is usually (but not necessarily) given a share. Accordingly, the arrangement percentage indicated in SUISA’s Distribution Rules is applicable (see article “Arranging works protected by copyright”). In rare cases, if, for example, the remixer’s contribution to the new work is very significant, he will be granted co-authorship status in the remix. In these cases his participation may also be higher.
  • Distribution timetable: when and how often are rights settled?
  • Place, date, signature of rightholder
  • Governing law and jurisdiction

When does a remix or a work containing samples have to be registered with SUISA?

When filing an application to register a work with samples excerpted from a protected work, the sampling agreement (which does not have to be expressly designated as such) must be enclosed or – in the case of online registration – uploaded. The rights splitting must be clearly indicated in the sampling agreement. Otherwise, the new work cannot be registered.

NB. In contrast to conventional arrangements where the arranger is registered as such for the new work, it is general practice for works with samples to list all the authors as co-authors of the work. The authors and, if applicable, publishers of the work from which the samples are taken thus become co-rightholders of the new work. When applying to register a work, it is important to list all rightholders of the work from which the samples are excerpted or at least to clearly state which original work was sampled.

When filing an application to register a remix of a protected work, the remix agreement (which does not have to be expressly designated as such) must be enclosed or – in the case of online registration – uploaded. The remixer will only be granted a share of the earnings if the remix agreement clearly indicates that he is entitled to a share. If no percentage is specified, the remixer will be entitled to the share allotted to the arranger under the Distribution Rules. If no reference is made to any share, SUISA will record the name of the remixer in the original version with the comment that the remix is approved but the remixer is not entitled to any share. If a publishing house registers a remix of a work which it published in the original, SUISA waives the need for a remix agreement since the publisher can always secure the arrangement rights directly from its author.

Summary

In addition to the arrangement rights (copyright), remixes and sampling always also affect neighbouring rights, since they use existing recordings (containing the rights of performing artists). The rights in the recording may be held by the same rightholder as the arrangement rights (author or publisher), or by a third party (often a record company or label), and must be secured even for very short sequences. The more rightholders involved, the earlier one should start enquiring and securing the rights. Likewise, remix and sampling permissions should always be recorded as written agreements (which also facilitates registration of the works with SUISA) and should clearly indicate how rights are split.

SUISA assists its members in locating the rightholders. In the case of published works, it provides the publisher’s particulars so that he can be contacted directly. In the case of unpublished works, it forwards enquiries to the authors or their heirs. Enquiries should be addressed to: publisher (at) suisa (dot) ch Details of the producers of a recording can be found under the ℗ note on the recording itself.

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The articles about arrangements in the “Good to know” series have so far focused on “conventional” arrangements of musical works. Sampling and remixes are two additional and specific forms of arrangement. What rights need to be secured when existing recordings are used to produce a new work? What agreements have to be contracted? Text by Claudia Kempf and Michael Wohlgemuth

Sampling and Remixes

From the copyright point of view, remixes and sampling are specific forms of arrangement. (Photo: Tabea Hüberli)

Sound samplings come in many different forms and techniques. But they all have one thing in common: they incorporate parts of a musical recording into a new work. This regularly raises the question whether such parts of works or samples are protected by copyright or – especially in the case of very short sound sequences –...read more

A career as a producer of electronic music?

In cooperation with SUISA and the association “Cultures électroniques”, the Electron Festival, music festival for electronic music in Geneva, is going to organise a discussion panel on Saturday, 04 May 2019. It is the objective of the panel to show composers which means and ways they have available in order to support them for their professional career. Text by Erika Weibel

Electron Festival: A career as a producer of electronic music?

Electron Festival: SUISA panel with networking event on Saturday, 04 May 2019, in Geneva: “A career as a producer of electronic music? A real challenge!” ((Photo: Electron Festival)

The path to success is often strewn with stones for composers and requires a lot of resilience. Numerous successful Swiss producers of electronic music have also had this experience.

In the course of the 2019 Electron Festival, the music festival for electronic music in Geneva, various music producers are going to talk about their careers at a public SUISA panel. During their discussions with those in charge of funding institutions as well as with experts from the music industry, they are going to screen specific support options and jointly analyse the current situation of electronic music in Switzerland. The main objective of the discussion panel is to inform composers on the existing support infrastructure and to follow up on the question whether the existing structures are sufficient.

The audience is cordially invited to contribute its own experiences to the discussion. Once the panel has ended, there is an informal drinks reception offering the audience the opportunity to continue the conversation with those in charge of funding institutions and the artists.

The SUISA panel at the Electron Festival 2019

“A career as a producer of electronic music? A real challenge!”
takes place with a drinks reception afterwards:
on Saturday, 04 May 2019, 4.00pm, at Crea, Rue Eugene Marziano 25, in Geneva

Panellists:
Dominique Berlie, Cultural Counsel, Service culturel (SEC) of the city of Geneva
Marius Käser, Pop music, Pro Helvetia
Albane Schlechten, Director FCMA, Antenne Romande Swiss Music Export
Manuela Jutzi, Co-Managing Director, Helvetia Rockt

Participating music creators:
Deetron
Garance
Ripperton
Opuswerk
Ramin & Reda
Honorée & Kaylee

Presentation: Anne Flament (RTS-Couleur3)

The Electron Festival shall take place between 25 April and 05 May 2019 in Geneva. Further information on the Festival can be accessed here: www.electronfestival.ch

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In cooperation with SUISA and the association “Cultures électroniques”, the Electron Festival, music festival for electronic music in Geneva, is going to organise a discussion panel on Saturday, 04 May 2019. It is the objective of the panel to show composers which means and ways they have available in order to support them for their professional career. Text by Erika Weibel

Electron Festival: A career as a producer of electronic music?

Electron Festival: SUISA panel with networking event on Saturday, 04 May 2019, in Geneva: “A career as a producer of electronic music? A real challenge!” ((Photo: Electron Festival)

The path to success is often strewn with stones for composers and requires a lot of resilience. Numerous successful Swiss producers of electronic music have also had this experience.

In the course of the 2019 Electron Festival, the music festival for electronic music in Geneva,...read more

Interim review on hit boxes, three years after their introduction

After a two-year test phase, hit box monitoring has been the basis for the distribution of remuneration for music on sound recordings since January 2014. Now, a first review can be made regarding this new system, both in relation to the data collected and the reactions of the members and owners of the clubs in question. Text by Nicolas Pont

Interim review on hit boxes, three years after their introduction

Verified by hit box monitoring: “Jung verdammt” by Lo &Leduc has been played more often in Swiss clubs during 2015 than Beyoncé’s “Crazy In Love”. (Photo: Luca Monachesi)

The aim of the revision of distribution category 12 which is affected by the hit boxes, as well the functionality of such devices have been explained in SUISAinfo 3.13 (in German, PDF, 730 KB). Just to clarify: Hit boxes are mainly used for the distribution of the copyright royalties relating to dance and entertainment events inside (discotheques) and outside of the hospitality industry (fairs, street festivals) i.e. at events where music is important but is not the only reason stated for attending.

If a DJ performs at a concert, the distribution shall be made, just like before, based on the programmes that are submitted by the artists and then forwarded by the organisers to SUISA. This also applies to festivals with electronic music such as the Electron Festival in Geneva. In total, about CHF 6m are distributed for entertainment events live and sound recording music per annum, arising from 13 different tariffs. The distribution for sound recording music is made on the basis of a data analysis by Yacast, a French system provider.

Aim of the hit boxes: a fair distribution of the remuneration to authors and publishers

For a representative selection of clubs which takes the different music genres and linguistic regions of the country into consideration, statisticians from the University of Zurich were involved. During the initial phase of installation, some club owners had reservations regarding the hit boxes. In the meantime, however, these reservations have mostly subsided. Admittedly, occasional technical problem during installation or maintenance of the hit boxes. Cables that do no longer work, or have accidentally been removed can be the cause for problems.

Other initial fears could be allayed or rebutted: In the beginning, some assumed that the box would also record personal conversations and thus could be manipulated to record the music of a smartphone instead of the music actually played in the discotheque. Verifications of test recordings showed, however, that private conversations cannot be heard. Furthermore, an external ambient microphone fixed to the hit box serves the purpose to prove the matching between the music recorded and the music that was actually played in the club.

The openness of the club owners vis-a-vis the hit boxes has to be applauded. Especially places where niche music is being played, help promoting local artists with such hit box installations and challenges those who accuse the monitoring system to favour majors and so-called mainstream music. The aim to allocate the collections as fairly as possible to the authors of the played music can be reached by selecting the most representative clubs possible, where monitoring takes place.

Detection rate above 95%

Yacast has committed itself by contract to guarantee a specific detection rate. This aspect was also thoroughly verified during the test phase. Since the hit boxes have been introduced two years ago, the detection rate rose to 96% in 2014 and to 97% in 2015. Furthermore, a system was introduced which provides members who doubt the recognition of their works with a direct access to the database of Yacast so that they can upload their audio files. In order to be able to do so, you need to register here.

Several members and users wanted to know the criteria upon which the venues had been selected where a hit box was installed. They also asked for a list of such venues. SUISA was not able to satisfy this request. It has to be able to guarantee that the monitoring system cannot be manipulated. If the places where such hit boxes are installed were to become known, there is a possibility that performance venues could be selected and targeted based on these details. As a consequence, the representative character of the data and thus the distribution of the collections would be manipulated. It is not the aim to avoid transparency or to mask the data, but to guarantee a confidentiality which is indispensable for the smooth functioning of the system.

Nevertheless, the following details can be provided: In 2014 and 2015, 43, resp. 45 of the approx. 500 clubs and discotheques in Switzerland were equipped with a hit box. The recordings are not made on a continuous basis but at alternating points in time, which are not evident due to the installation in the club to anyone. The varying times of the recordings and recognition is another measure to ensure that the system cannot be manipulated. An average of 6,000 hours of music are recorded each year, and were allocated to nearly 30,000 works.

Lo & Leduc beat Beyoncé!

The Swiss is a music import country, SUISA distributes about half of its collections to rightsholders abroad. When SUISA decided to begin a distribution based on the hit boxes, it was acutely aware of the fact that this tendency could be confirmed. It was, in fact, the case, but to a much lesser degree than anticipated, and with a few surprises in waiting. One example is the title “Jung verdammt” by the Berne band Lo & Leduc, exclusively consisting of SUISA members. This title was among the ten most played titles and was way ahead of Beyoncé’s «Crazy in love».

One of the reasons for using the hit boxes is that the old system, based on programme reports, led to misuse and also had gaps. Reports had previously been submitted concerning music events in clubs which had ceased their operations many months before. That way, a significant share of collections went into the pockets of rightsholders that may have been SUISA members, but only authors ‘on paper’ – at the detriment of those artists – including Swiss artists – whose works were actually played.

The hit boxes cannot be installed all over Switzerland due to financial considerations, and it is possible, that certain performances cannot be captured. Thanks to today’s system, there is more information available than there was with the manual reports of DJ programmes in the past. The remuneration can thus be distributed in a fairer way. In addition, the previously high costs for “manual” handling of data can be reduced.

Today, where each customer can use their smartphone to recognise titles and artists of works played in a disco, it is no longer contemporary and plausible to base the distribution of copyright remuneration on paper reports. Even more so, when the collective management organisations explicitly demand the development of electronic processing systems, in particular in the context of the copyright review.

Related articles
New distribution key for performing and broadcasting rights The SUISA distribution key for performing and broadcasting rights will be changed from 01 January 2017 onwards. For works with an original publisher, the share of the author shall be 66.67% and that of the publisher 33.33%. The distribution rules are thus adapted to the CISAC key which is applied at international level. Read more
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After a two-year test phase, hit box monitoring has been the basis for the distribution of remuneration for music on sound recordings since January 2014. Now, a first review can be made regarding this new system, both in relation to the data collected and the reactions of the members and owners of the clubs in question. Text by Nicolas Pont

Interim review on hit boxes, three years after their introduction

Verified by hit box monitoring: “Jung verdammt” by Lo &Leduc has been played more often in Swiss clubs during 2015 than Beyoncé’s “Crazy In Love”. (Photo: Luca Monachesi)

The aim of the revision of distribution category 12 which is affected by the hit boxes, as well the functionality of such devices have been explained in SUISAinfo 3.13 (in German, PDF, 730 KB). Just to clarify: Hit boxes are mainly used for the distribution...read more

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