Copyright ‘Wild West’: DJ Livestreaming During Quarantine
July 01, 2020
Summer is here. People are craving fun in the sun and entertainment, which often includes listening and dancing to music. While several cities around the country have begun to loosen restrictions during the COVID-19 crisis, many entertainment venues that normally host large gatherings are still shut down. Within this creative ecosystem are musicians, dancers, actors, and DJs, all of whom have had to pivot.
In mid-March when the United States began issuing shelter-in-place orders, many DJs migrated to social media platforms such as Facebook and Instagram (IG) Live to livestream their sets. It was a nifty idea to redirect their creative energy, engage with burgeoning audiences, and generate revenue streams.
Derrick Jones (better known as D-Nice) became one of the progenitors of this innovative shift when he began livestreaming his “Club Quarantine” parties from his Los Angeles apartment. His energetic sets, brimming with mainstream hip-hop, funk, disco, and R&B favorites, caught the attention and admiration of people worldwide, including A-list celebrities such as Oprah Winfrey, Quincy Jones, and Stevie Wonder. Even Joe Biden and Michelle Obama joined the virtual party.
D-Nice wasn’t the first to migrate his live sets onto social media platforms, but he certainly inspired other DJs to do the same. But shortly thereafter, a lot of DJs who livestreamed their sets on Facebook and IG were faced with copyright takedowns or had portions of their sets muted for violations of the 1998 Digital Millennium Copyright Act (DMCA).
Hardeep Grover, a lawyer at Tresquire Legal Services PLLC who works with creative entrepreneurs, describes livestreaming on social media as “the Wild West,” leaving DJs confused about livestreaming guidance as it relates to copyright laws.
“It’s hard to track,” says Grover, a member of the board of the Washington Area Lawyers for the Arts. “It’s really platform to platform. There’s a lot of guidance and a lot of people ignoring that guidance. It’s really dodgy territory because the playing field keeps changing. But the simple answer is that unless music royalties are being paid out [during the livestreams], DJs can’t play the music because there has to be public performance royalties.” When DJs spin in brick-and-mortar venues, artists receive money through a performance rights organization (PRO) such as ASCAP, BMI, SESAC, and SoundExchange, Grover explains.
Jamil Hamilton, a popular Washington, D.C.-based DJ who performs under the moniker DJ Jahsonic, started livestreaming his sets in early March. But even though he uses ingenious DJ techniques such as pitch and equilibrium (EQ) manipulation, song-blending, and playing comparatively obscure music, his sets on Facebook and IG Live sometimes get abruptly interrupted because of copyright infringement. “The social media platforms are again behind the times, obviously at the behest of the recording industry, which often resists any technological change,” Hamilton argues.
Many DJs are baffled because some of the takedowns and muting interruptions seem arbitrary. David Fogel, owner of the Silver Spring, Maryland-based coffeeshop and record store Bump ’n Grind, has been hosting daily DJ livestreaming sets from his business since early May. He prefered Facebook and IG because that’s where the bulk of his customers reside on the social media landscape. Various DJs spin music, ranging from deep house to jazz to hip-hop and old-school R&B. [Full disclosure: This writer spun a couple of DJ sets at Bump ’n Grind.] “I think we’ve had not one person get popped [by copyright right infringement-based interruptions],” Fogel says. “One guy got popped twoce. And it was toward the very end of a two-hour set. And he was playing predominantly ’90s old-school house and techno.”
Entertainment law attorney Lita Rosario says the issue involves two different copyrights: master recordings copyrights and songwriter/publishing copyrights. “The master recordings are typically owned by the record companies,” she says.
Many DJs use Facebook and IG Live to livestream their sets because of the platforms’ popularity. Some opt for YouTube, which is a safer space regarding copyright laws because it has already established an agreement with the record companies and music publishers. “YouTube has a way of digitally tracking the music, then paying whatever licensing fees are [owed] based upon their business model,” Rosario says.
According to Rosario, Facebook recently entered into an agreement with ASCAP and BMI regarding public performance licensing. But that doesn’t automatically translate into DJs freely streaming live sets on social media platforms because they’re covered only under the songwriting/publishing copyright agreement. “The record labels also need to give clearance and licensing for use of their masters,” Rosario says.
Another safe space for DJ livestreaming is Mixcloud, a popular site for DJs to upload pre-recorded mixes. Its recently launched Mixcloud Live has license agreements with most major record companies, independent labels, publishers, distributors, collective management organizations, and performance rights organizations. The drawback, of course, is driving traffic to that platform. Fogel’s coffeeshop switched from Facebook and IG to Mixcloud Live in July for smoother uninterrupted DJ livestreaming.
How Do PROs Know What’s Being Played?
Facebook, Vimeo, Twitch, and SoundCloud use an artificial intelligence (AI) app created by Audible Magic. The app creates digital footprints of music played on those platforms, which, in turn, send alerts to record companies about copyright infringements.
YouTube utilizes a system called Content ID to create audio fingerprints for every song that’s played on the platform. It scans every uploaded video and tracks every song played inside the video. “When copyrighted music is played, YouTube is able to take ad revenue and move it over into royalties for the artists of the songs,” Grover says. “So, if a DJ plays a one-hour set with 40 songs, YouTube is going to recognize at least 35 songs. And 35 artists are going to be paid.”
Who Is Responsible for Securing Copyright Agreements?
Venues such as clubs, bars, and restaurants that regularly hire DJs often sign licensing agreements with the PROs for the music to be played in these commercial spaces. Social media platforms are slowly catching up. The takedowns and partial muting of live DJ sets on social media help protect those companies. So, Grover argues, the onus for securing copyright agreements lies more on the DJs if they want to play it safe. “They’re the easiest targets to get sued if something happens,” he says.
DJs should take responsibility regardless of whether they install a virtual “tip jar,” allowing listeners to pay a nominal fee for the entertainment, or post the “fair use” clause to argue that the DJ isn’t using the livestream to build revenue. Grover says the “fair use” argument is not an effective preemptive measure. “Once you’re already being sued, you can try to argue the ‘fair use’ clause. And if the judge agrees, you’re cool,” he says. “That’s the only place you can use ‘fair use.’ But the goal is not getting sued and not going to court in the first place.”
“We really don’t know where things are going regarding responsibility of licensing and guidance,” Grover adds. “There are a lot of parties that could weigh in. The government could intervene and demand that the streaming platforms establish license agreements and guidance in the same way that commercial venues like nightclubs and bars do. When a DJ is spinning at a nightclub, the DJ isn’t responsible for paying royalties; the venues are because they’re the ones making most of the money.”
“Another thing that DJs must consider is that when they are livestreaming on social media, it’s actually a worldwide broadcast,” Rosario says. “So, DJs can’t just deal with the copyright laws in the United States. They have to think about the different copyright laws across the globe.”
Is DJ Livestreaming a Lasting Reality?
Recovery from the coronavirus pandemic remains unclear. Many people are already predicting dire straits as to when DJs will return to spinning in bars, clubs, restaurants, or outdoor commercial events. “This community of musicians and DJs is probably the last one to start making significant money again,” Fogel says. “Who knows when bars are really going to open again? And when they do, are they going to pay for a DJ to spin there when they’re only at 25 percent capacity?”
Regardless of when things return to normal, Rosario argues that DJ livestreaming on social media has opened up a new way for people to socialize. “I think DJ livestreaming on social media is going to lead to virtual parties where attendees will have digital avatars,” she says. “There will be a DJ spinning, and you’ll be able to ask people to talk, dance, or even date. Maybe it’ll be dating sites with live DJ streaming. That could become a whole new area of income for musicians and DJs.”
