DJs as authors and copyright owners?

[Average reading time: 10 minutes]

This article was first published in German language in 2010. The following text is a 2021 updated and translated version. While the first version is still largely valid, the DJ mix platform "let's mix" no longer exists. 

DJs as authors and copyright owners?

Legal considerations of a DJ Mix

DJ mixes are very popular, especially in the field of electronic music, and are continuously increasing due to simplified technical possibilities. This has become particularly apparent in the numerous online platforms (e.g. soundcloud, mixcloud and the now defunct let's mix platform) which provide the necessary storage space for music and simultaneously function as a social community. However, many musicians are not aware of the legal requirements. This article will show that the publication and distribution of a DJ mix can be unlawful. Hence, the DJ publishing and distributing his or her DJ mix can commit copyright infringement and may have to pay damages to the copyright holder. Before I distributed my own DJ mixes, I had to ask myself what are the legal requirements for publishing and distributing DJ mixes . These questions will be answered to provide guidance for other DJs and musicians to avoid legal issues with their mixes.

This article primarily focuses "conventionally" published music, i.e., music with commercial interest and the respective authors having assigned their exploitation rights to GEMA or another copyright collective (sometimes referred to as collecting society). Even if today a large part of electronic music is released in alternative ways (for example, digitally and with a Creative Commons license, such as by net labels like Waschraum Productions), a large part of the released music still (also) exists on physical media such as vinyl or CD, with musicians usually seeking a financial return in addition to artistic recognition. In most cases, it's probably not CC-licensed music that is mixed into a DJ set, but music administered by GEMA or a foreign copyright collective. While there might be many DJ mixes with CC-licensed music only, this article focusses on DJ mixes with "commercial", or let us say "conventional" tracks/songs from the repertoire of a copyright collective.

The Mix

As is so often the case with legal questions, a definition and delimitation of the subject matter to be considered is required first. When discussing a "DJ mix" in this article, this term refers to all conceivable performances and, above all, recordings of tracks/songs that are strung together by a person and linked to form a complete work through additional technical and creative processing. The selected tracks/songs can be mixed together from any conceivable medium; it is irrelevant whether this is vinyl, CD, tape, a file (MP3/FLAC/WAV) or any other suitable medium. It is also irrelevant whether such a mix is formally referred to as a "DJ Mix", "Mix CD", "MP3 Mix", "Mixtape", or simply "(DJ) set".

What is essential, however, not only from an artistic but also from a legal point of view, is the content of such a DJ mix. This raises the question of what a DJ usually does, or at least should do, when she/he plays a DJ set and subsequently publishes and distributes it, whether on CD, tape or digitally.

This also addresses the difference between a recorded DJ mix 
and a compilation: A compilation contains a selection of songs in a specific order. This is to enable the listener to enjoy a particularly good selection of songs in the best order. The listener is thereby relieved of the burden of his or her own research for good music. Compilations, however, only contain a selection of individual songs or tracks strung together and provided with a short break in between, if necessary.

A compilation can indeed be regarded as a collective work within the meaning of Section 4 (1) UrhG (Urhebergesetz, abbreviated UrhG = German Copyright Act) and as such enjoys copyright protection.

The essential difference to a DJ mix, however, is that in a DJ mix, unlike a compilation, the individual songs/tracks are additionally mixed into one another, thus creating a flowing transition that suggests to the listener the consumption of an uninterrupted musical work. Technically, this can often be seen by the fact that a mix CD contains only one track or the mix is in a single, sometimes large MP3 file. If individual tracks can be selected on a mix CD, these are no longer the original tracks, but were subsequently cut from the mix or marked in the mix in such a way that the listener can select them more comfortably (by skipping) and, more importantly, to show in which order which track was used and further processed by the DJ, at least if the DJ supplies a list of the mixed tracks (set-list) together with the audio mix.

On the one hand, a DJ mix is a compilation, on the other hand it goes beyond that. Consequently, the protection of a DJ mix is not limited to the classification as a compilation (Section 4 UrhG), but must be seen as an adaptation according to Section 3 UrhG, thereby enjoying separate copyright protection. Only insignificant adaptations are excluded from such separate copyright protection. Very small adaptations of a musical work generally do not justify separate copyright protection under German copyright law and do not justify granting the DJ or other artist a monetary claim for such adaptation. However, as a rule, at least in the field of electronic music, a DJ tries to mix the individual tracks/songs smoothly into each other, adding effects from the mixing console and sometimes his or her own samples, or using programs such as Reason or Live to blur the line between DJing and producing. By doing so, the insignificance threshold under German Copyright law will usually be exceeded. Such a DJ mix may be a separate work and thus legally protected by copyright according to Section 3 UrhG in connection with Section 2 UrhG.

The DJ

Even though it has been shown that the DJ mix enjoys copyright protection, nothing conclusive is said about the DJ as the person responsible for it. The DJ does not automatically become a co-author of the songs/tracks used according to Section 8 (1) UrhG through creating his or her mix. The prerequisite for this would be that two or more persons create a work (song/track) together. However, this is no longer possible when mixing tracks/songs that have already been completed and published by another musician. This is why the DJ cannot be considered as co-author of the original songs/tracks.

Usually, there is also no connection of compound works according to Section 9 UrhG since a song or track that is mixed together by a DJ with other musical works is not connected with the original work in this (legal) sense. Instead, the original work is regularly exploited as separate work. The DJ does not obtain a copyright in the original song/track through the musical combination with other musical works.

However, the DJ is the copyright holder with regard to the DJ Mix as such as well as for any recording of it. If two DJs work together on a mix and create a joint mix, there is a co-authorship according to Section 8 (1) UrhG for that specific mix but not for the mixed (original) tracks/songs. For the more common case in which the editing and mixing of the tracks and songs is done by a single DJ, this DJ is also (sole) author for his or her mix and therefore author according to Section 7 UrhG.

The distribution...

No matter in which form (CD, tape, file), at the latest the distribution (in the broadest sense) of the DJ set is legally significant and can have serious financial consequences. This is because, according to German copyright law, the individual exploitation rights, for example the right of reproduction (Section 16 UrhG) and the right of distribution (Section 17 UrhG) in the case of physical carrier media, as well as the right of public reproduction in the case of non-physical reproduction, are exclusive rights of the author (Section 15(2) UrhG). For DJ sets in a club (a discotheque) or at a festival, the performance right (Section 19 UrhG), and for publishing the DJ mix on the Internet, inter alia, the right of making it publicly available (Section 19a UrhG), are relevant. However, these exploitation rights for the original music do not belong to the DJ, but to the authors of such songs/tracks. Even if the DJ acquires his or her own exploitation rights to his/her mix by creating such mix, the separate rights of the authors of the underlying original musical works are not affected by mixing and adding them into a DJ mix.

For the non-commercial distribution of a DJ mix, the provisions on reproduction for private and other personal use ("private copy") according to Section 53 UrhG could be considered. However, under German Copyright law, a person is allowed to have seven friends when it comes to the distribution of music based on the private copy doctrine. This is not based on statutory law, but on case law of the Federal Court of Justice (Bundesgerichtshof, BGH) from the 70s. The relevant Copyright provision, Section 53 UrhG, was interpreted by the court to the effect that seven copies were to be regarded as the upper limit of permissible reproductions (see BGH, GRUR 1978, 474). Whether or not this number seems reasonable is a moot point here. A DJ mix is typically intended to be distributed or made available to a wider audience. A recourse to private copying therefore does not help much, even in the case of non-commercial DJ sets.

It is also conceivable to apply Section 52 UrhG, according to which public reproduction is permitted under certain conditions. However, here too, the author of the original music must be paid an appropriate remuneration. In addition, most of the conditions (no profit-making purpose of the organizer and no remuneration of the DJ) will not exist, at least for commercial events, but also seem questionable for semi-professional/hobby DJs.

...and the editing

The main problem with the distribution (in the broadest sense) of a DJ mix is not so much the distribution itself, because in order to distribute his/her mix, the DJ, at least if he/she has legally become the author of this mix, also has the corresponding exploitation right and thus, in particular, the right of distribution according to Section 17 UrhG (with regard to CDs, tapes) and the right of making available to the public according to Section 19a UrhG (with regard to distribution on the Internet). However, this is only true if the DJ has legally become the author. This in turn is only the case if his musical and artistic mixing of the individual pieces is lawful. As shown above, such a DJ mix represents an adaptation according to Section 3 UrhG. As a result, the DJ must obtain the permission of the original authors of the individual musical works and pay the respective authors remuneration, at the latest in the event of distribution or making available to the public. In other words, even the processing of the original musical works without the consent of the authors of such works prevents the DJ from acquiring a legal copyright to his mix. From a temporal point of view, this requirement of consent stated in Section 23 UrhG means a prior consent of the original copyright holders. The lack of consent is factually irrelevant as long as the DJ mix remains in the DJ's private sphere, but legally this point becomes an obstacle if the DJ wants to make his/her mix available to a wider audience.

In (commercial) practice, consent would have to be obtained not from GEMA or another copyright collective, but from the respective musicians or music publishers, and would also be granted if the DJ for his part (provided he is a member of GEMA) waives his remuneration from the copyright collective in favor of the original authors. In addition to the sometimes troublesome rights acquisition, this may also incur costs. However, this way seems unavoidable if you want to distribute a DJ set on a physical medium.

Making the DJ set accessible on one's own website does not lead to a significantly different evaluation than distributing it via a physical medium. Provided that the prior consent to edit the individual tracks has not been obtained and, if applicable, the authors/their record companies have not been paid or their own remuneration by GEMA has been waived, no fully legal copyright to the DJ mix arises, so that making the DJ set publicly available on one's own Internet site simultaneously constitutes an infringement of the rights of the individual authors of the original music tracks.

A remedy for this dilemma is (or was) provided by mix platforms such as mixcloud (and the now defunct let's mix platform). There, the remuneration of the individual musicians of the mixed tracks is ensured. In the case of mixcloud, corresponding agreements have been made with the responsible copyright collective. Mixcloud states:

"As a user-generated internet music platform, Mixcloud has a comprehensive licensing framework with rightsholders globally, including licenses with record labels, publishers, collecting societies and more. This allows creators to upload shows with licensed music and we will pay royalties to those rightsholders, who in turn distribute them to artists."

As a result, the respective musicians and authors of the original music will receive royalties when a DJ uploads a mix and states the names of the musicians and the mixed tracks (as well as the names of the labels, if applicable) in the form provided by mixcloud. With such a mix platform and legal framework, a DJ no longer has to worry about obtaining rights from the individual authors or music publishers.

At soundcloud, on the other hand, no such agreement has existed for a long time (originally reviewed on June 30, 2010 and last reviewed on February 11, 2021). Instead, the Terms of Use of soundcloud (only available in German language) stipulate that only files for which the respective user has all the necessary rights may be uploaded:

Without prejudice to the conditions set out under Your Use of the Platform, You may not upload, store, distribute, send, transmit, display, perform, make available, continue to make available or otherwise publicly reproduce any Content to which You do not hold the necessary rights. In particular, any unauthorized use of copyrighted material within Your Content (including by copying, distributing, modifying, adapting, publicly displaying, publicly performing, creating derivative works, making available, or otherwise publicly reproducing it through the Platform), whether unauthorized or subsequently unauthorized, is a violation of third party rights and is strictly prohibited. As described below in the Repeat Offenders section, such violations may result in termination of your access to the Platform, as well as civil or criminal prosecution by or on behalf of the respective rights holder.

Hence, making a DJ set publicly available on soundcloud is unlawful, unless the respective consents of the individual musicians and authors of the mixed tracks/songs have been obtained individually by the DJ himself in advance and, if required by such authors/creators, remunerated appropriately. Therefore, a platform like soundcloud should only be used for musical works for which you own all rights (e.g. for self-produced tracks/songs). For DJ Mixes including music for which you do not have obtained all consents of the right holders, it would be preferable to use to other platforms for such as mixcloud.

The price you pay for the lawfulness of a DJ mix posted online is the lack of a download option of the set on mix platforms such as  mixcloud.

Considering that the Internet now fits in your pocket and you can stream almost anywhere thanks to fast mobile networks, not too big a price.

Conclusion

An answer to the question "DJs as authors and copyright owners?" can now be provided: Yes, DJs are authors and copyright owners of the DJ mix itself only, but not of the music (individual songs/tracks) they mix. Therefore, in order to distribute and make publicly available a DJ mix, prior permission to edit the musical works of the original authors is usually required.