Copyright, Fair Use and (Rare, Obscure) Music Blogging
March 18, 2018 12:02 PM   Subscribe

There are many music blogs that provide educational information about rare & obscure music and vinyl records. They may also link to a single example song on a website like Soundcloud or What legal obstacles have blogs like this faced, or are currently facing? Is there a way to run a music blog like this and mostly avoid copyright issues?

For the sake of protecting these blogs from being easily targeted, I will not name or link to any of them here.

The ones I am talking about often involve a detailed post about a particular rare and obscure 45rpm/shellac/vinyl recording, the history of the artist and/or now defunct record label, and perhaps a good bit of cultural and sociological context to complement the history provided. There is often evidence provided that they've attempted to track down the musician, who may either be deceased, MIA, or gave consent. (Of course, not all musicians or songwriters are the copyright holders of their own work.) If they provide a link to a song, it may be available for downloading or streaming or both. Rarely is more than one song offered per artist- these are not "entire album" links.

A lot of this stuff is either so obscure it's current copyright owner is unknown (an orphan work), from another country where many political leadership/regime changes or wars have since taken place (making it more difficult to trace the thread back to its copyright holder or the musician themself), private press, or just plan outsider/weird.

How at risks are these blogs?
Are there good examples, with legal explanations, of what these sites did that made them more vulnerable to accusations of copyright infringement or unsuccessful fair use defense arguments?
Conversely, examples where they've been successful making a fair use defense argument?
Even if the occasional copyright infringement accusation can't be entirely avoided, are there ways to still run a music blog like this ethically?
What should all music bloggers know before doing this?
Other aspects of music copyright law I may be overlooking, underestimating or misunderstanding?

tl;dr How do music blogs (for obscure/out of print/private press/rare music, not current, well known, easy-target-for-RIAA-narcs music) remain in operation and avoid being shutdown over copyright infringement accusations? Is there ever an airtight fair use defense?
posted by nightrecordings to Law & Government (3 answers total) 5 users marked this as a favorite
I've been following these types of blogs for a long time now - and even ran one of my own for a while. So, I'm not a lawyer, but I've seen why these blogs come and go over the years.

It all depends on how likely it is that the rights holder finds your blog and would want to go after you. Copyright enforcement on the internet is based on complaints by the rights holders. Obviously, obscure, out-of-print or rare music is less likely to get complaints because the rights holders aren't out there looking for infringement.

Even then, the most likely outcome is that the file host gets a complaint and the file is deleted. I suppose you could have bad luck and incur the wrath of a particularly litigious rights holder - it's not really risk free.

Really, what kills most of these blogs eventually is either (a) the blogger loses interest or runs out of material, or (b) there are problems finding a file host that is free, reliable, and not skeevy.

But, no, there isn't a way to run a blog like this without avoiding copyright "issues" because the music-sharing part of the blog is built on copyright infringement. If you really wanted to avoid those issues, you'd only post music in the public domain, or that you had permission for.

Conversely, examples where they've been successful making a fair use defense argument?

I can't think of a case where that's happened, because I don't think posting entire songs would count under "fair use" even with all of the journalism surrounding it. And, trying to defend your blog is pretty high-risk, high-cost... for what is generally a hobby.

Even if the occasional copyright infringement accusation can't be entirely avoided, are there ways to still run a music blog like this ethically?

This depends a lot on your views on intellectual property in various contexts. Many would say that these blogs are already being run ethically. Others would say that they aren't.
posted by Kutsuwamushi at 12:25 PM on March 18, 2018 [2 favorites]

theyre not relying on fair use. they're relying on apathy by staying under the radar enough that rights holders don't know or don't care.that's part of why they stick to OOP stuff that has not been reissued recently.

10-15 years ago there were mp3 blogs that were trying to promote current stuff by posting mp3s. Some of these mp3s were sent by the labels or promotion companies hired by the labels and the blogs were still getting takedown notices.

SoundCloud, spotify, bandcamp and media consolidation have simplified things for the above. the rest live like outlaws and pray they aren't noticed.
posted by noloveforned at 12:40 PM on March 18, 2018 [4 favorites]

Kutsuwamushi & noloveforned have nailed it, but just to expand on something -

Is there ever an airtight fair use defense?

It seems like part of your confusion is that you're using the common IntarWebs definition of "fair use", which is basically, "Well, that seems fair to me, more or less. I figure a lawyer could convince a judge and/or jury of that."

People don't seem to get that the general outlines of "Fair Use" are actually encoded into law. So, yeah, there's such a thing as "airtight fair use defense" - the NY Times Book Review won't get sued, ever, because "criticism" is right there in the law as an exception, and they only copy excerpts, not the whole book. And while the fact is that the law encompasses only general outlines and considerations for a fair use defense - which has led to some of the current standards of fair use being determined by court cases a.k.a legal precedent - "fair use" is a defense. If a music blog gets a takedown notice and they feel strongly that their use qualifies under the fair use exemption in the law and in case law, they still gotta lawyer up and defend their position in court, which is probably not cheap.

Rarely is more than one song offered per artist- these are not "entire album" links.

Doesn't matter. Songs are individually copyrighted, as are the sound recordings of these songs. You're not going to escape a takedown notice if you put "Gimme Shelter" on your blog, and then go, "But I didn't post the whole Let It Bleed album!"

Like everyone else has said, these blogs stay alive by focusing on obscure music where the copyright holders are missing or dead or don't know or don't care.
posted by soundguy99 at 8:56 PM on March 18, 2018 [2 favorites]

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