Legality of giving away mixed CDs...
July 12, 2010 7:35 AM   Subscribe

A friend of mine owns a record store and is curious about the legalities of giving away monthly mixed CDs. Each disc would feature 10 or so artists connected on a theme (female folk, avant garde jazz, little-known world, etc.) of artists he's featuring that month. No charge for the CDs. Basically, it's like the CDs you get with Mojo or CMJ. Legal? He's in Canada. What if they're "free with any purchase". Legal?
posted by dobbs to Law & Government (20 answers total) 1 user marked this as a favorite
Would he be doing this with or without the consent of the copyright holders? I'm fairly sure that Mojo and CMJ would get the permission of the copyright holders before distributing copies of their music.
posted by Mike1024 at 7:39 AM on July 12, 2010

Considering that there are a lot of new/unsigned bands that would love the exposure this would give them, why not suggest that he go that route instead?
posted by theichibun at 7:51 AM on July 12, 2010 [1 favorite]

Complete and utter breach of Copyright of the Song owner. But that doesn't seem to stop loads of people doing similar on the Internet.
posted by mary8nne at 7:52 AM on July 12, 2010

Would this be different for bands who offer songs free-to-download as MP3s on their web site? I mean, isn't giving away a song releasing their rights to its (free) distribution?
posted by themadjuggler at 7:54 AM on July 12, 2010

You might think this is okay because of the CD levy we have, but that only allows you to make copies for your own personal use. You're still not allowed to distribute.
posted by ODiV at 8:01 AM on July 12, 2010

in response to the Madjuggler - No. just because the artists gives the song away on thier website they do not actually give you the right to re-ditribute the music.
And particularly if its 'mixed' you would need a license specifically allowing this.
posted by mary8nne at 8:06 AM on July 12, 2010

Yeah, Mike's question is the big one. Is he going to get consent for all the songs? (This might be a slog at first, but maybe if he developed relationships with some labels, it would get easier as time went by.)
posted by Beardman at 8:06 AM on July 12, 2010

If the songs are CC licensed, you're good to go (provided you follow the terms of the license. I believe they all would allow non-commercial distribution.)
posted by ChurchHatesTucker at 8:08 AM on July 12, 2010

Response by poster: He asked me because a few years ago I did a mix CD for a project that went to about 1000 people. I contacted every band/label involved. The vast majority of them told me that if I wasn't charging, no permission was needed. I was a little surprised with those responses but I heard them repeatedly (about 60 bands were contacted for that project). Though I also heard from other labels who refused permission, as well as those who granted permission but required me to sign a contract.
posted by dobbs at 8:10 AM on July 12, 2010

Not legal. He would need to contact the record company of each and every artist on his mix CD and find out how much they wanted him to pay them to put the song on a free mix CD. The magazines with the "free" pack-in mix CDs are actually losing money on those CDs because of the fees they're paying to record companies, but they're making up for it with the sales of the magazine.

I definitely agree with theichibun, though; have him contact local artists (either directly or through a big sign at the front of the store and the store's website that says "hey, local artists!") and see if any of them would like to be featured on a free mix CD. Working directly with a struggling band who would love the free publicity of being featured on the mix CD is worlds apart from dealing with a record company who expects to be paid a licensing fee every time a song is played on Pandora, included on a mix CD, or even covered by a bar band.
posted by luvcraft at 8:14 AM on July 12, 2010

I mean, isn't giving away a song releasing their rights to its (free) distribution?


Really, really, really, really, really, really, really, really, really, really, no.
posted by jacquilynne at 8:15 AM on July 12, 2010

ack, you posted your additional info as I was writing that previous post. :)

it looks like you have experience doing due diligence on projects like this, so just make sure your friend does the same thing, or offer to do it for him. That makes me very happy to hear that most of the labels you contacted before told you you didn't even have to ask for permission if you weren't charging, but it's that fraction that outright refused or wanted a contract that you have to watch out for, and that will bite you in the ass if you assume that they'll all be the cool "no permission necessary" type. :)

I would also recommend keeping a list of the labels that have told you you don't need permission to feature their artists on a free mix CD, so that you can save yourself the phone calls / emails the next time you make a free mix CD.
posted by luvcraft at 8:22 AM on July 12, 2010

I contacted every band/label involved. The vast majority of them told me that if I wasn't charging, no permission was needed.

Bands aren't generally copyright lawyers. Even label representatives are not copyright lawyers. Also, the left hand often does not know what the right hand is doing, if you know what I mean. When a label's Legal department sues your friend for lost revenue, "The label said it was OK on the phone!" will probably not be a suitable defense.
posted by muddgirl at 9:30 AM on July 12, 2010

Even label representatives are not copyright lawyers.

True, but if they give you permission (use email!) you can shut down the lawyers pretty quickly.

Most of the problems you hear about are because the lawyers don't know what the PR department is doing.
posted by ChurchHatesTucker at 9:45 AM on July 12, 2010

True, but hopefully even PR folks will look at "free CDs for private project" a little differently than "free CDs to promote a record store".
posted by muddgirl at 10:03 AM on July 12, 2010

If I was a songwriter and a band did that with one of my songs without my permission, there'd be heck to pay. That having been said, if the label has the rights to the song, they have the right to give permission, I suppose. Good on you for asking. As long as the dude gets permission, this is simply marketing.
posted by St. Alia of the Bunnies at 11:52 AM on July 12, 2010

Paste Magazine does this.

"How do tracks get placed on the Sampler?.

Sampler tracks are purely editorial decisions. Just send your material as described in the Artist & Label Information page. Feel free to make a note that you want to be considered for the Sampler (as some artists and labels have “no MP3s” or “no sampler” policies). There is no cost to include your track, but legal affairs at your label (or you, if you own all the rights) must sign an agreement granting permission to include the track on a CD and as a download, waive any fees (such as publishing), etc"

So...I'm guessing written permission by the rights holder is needed for them to do it.
posted by jenfullmoon at 1:47 PM on July 12, 2010

posted by rhizome at 3:01 PM on July 12, 2010

Just to add a data point, bands/labels paid (in some form or another) to get onto the CMJ discs that came with the magazine. My band had a track on one back in the day, and it was well worth the publicity but very much not free and/or profitable.

If a neat-o record store approached us with a proposition like yours we'd likely be happy to contribute a track as long as the copyright info was included in the packaging somewhere.
posted by mintcake! at 8:10 PM on July 12, 2010

He'd definitely need permission from the rights holder. Here's the breakdown on mixtapes and copyright in Canada from Creative Commons.

Pertinent excerpt:

Does that mean I have a copyright in the mixtape?

Yes and no. It all depends on what rights you have to the musical works being mixed. If the songs are copyrighted then you must have permission from the copyright holder - they must grant you a licence - to use the songs in your mix.

Under Canadian law, whomever holds the copyright in a musical work has the right to:
1. produce or reproduce the work or any substantial part thereof in any form,
2. to perform the work or any substantial part thereof in public or,
3. if the work is unpublished, to publish the work or any substantial part thereof,
This includes the sole right to authorize any of the above acts. Because these rights are often traded for financial remuneration they are called economic rights.

The Act also gives the copyright holder the exclusive right to communicate the work to the public by analog or digital telecommunication, which includes distributing it over the internet. For example, if you made a mixtape of your favourite songs and offered it for download on your website - without any licence to communicate/broadcast the song - you would be infringing on the owner of each song's copyright.

Unless you have permission to use and distribute each and every song in your compilation, you will not have a copyright in your mixtape
posted by urbanlenny at 2:00 PM on July 13, 2010

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