By Tony Fernandez:
Let’s begin by stating that there is currently NO definitive answer on whether streaming your DJ set is considered fair use. The only way to have a clear answer to that question is to have this matter resolved in federal court; and even there, where a judge has a great deal of freedom when making a fair-use determination, the answer is likely to remain fluid.
Until then, what’s a DJ to do?
What If You Acknowledge the Source Material?
It is commonly believed that the unauthorized use of a work (or portion of it) is permitted if an acknowledgment is made. Not true. Acknowledgment of the source material may be a consideration in a fair-use determination, but it will not protect against a claim of infringement.
Does It Help to Use a Disclaimer?
A disclaimer is a statement that “disassociates” your work from the work that you have borrowed. Generally a disclaimer itself will not help; material and original works used without licensing is an infringement of copyright, ergo, not fair use.
Ultimately this means that Fair Use cannot be applied to DJ mixes.
As of this writing, Facebook Live does not have any streaming audio licenses with PROs. As DJs have discovered, Facebook, SoundCloud, etc., have programs that search uploads to determine if any music with a copyright has been uploaded. If so, the “offending” file is removed, a decision that has not been well received by the DJ community, as evidenced by these real posts from real DJs…
“We as DJs promote the music through our mixes for the artist on live mixes.”
“….why should we be punished?”
“DJs have been an important cog in the wheel of music since the invention of radio and then the turntables. We showcase the works of artists so that people can go and buy their music. Without us, much music would go unheard. This is about greed, nothing else. Artists should be grateful that their music is being showcased as many other outlets on the internet tend NOT to showcase some genres and acts and only focus on the famous and hyped.”
As a DJ, while I agree with most if not all of the above sentiments, it all come down to the world we now live in: SoundCloud, Facebook and the other hosting services aren’t the bad guy in this story. The Copyright Act is the law of the land. These hosting companies are limiting their liability and exposure.
The facts are, as the Copyright Act is being applied, that a DJ’s ability to stream and share Mix tapes is severely limited if he or she chooses to operate within the legal confines of the law.
So don’t hate on Facebook. Write your congressman and get the laws changed. Or develop a system where DJs and copyright holders have a vehicle where DJs can showcase their talents and the material / music being used is done in a forum and manor that’s mutually beneficial to the DJs and copyright holder(s).
It’s a brave new world out there. At least you know why your mix is getting yanked down.
Based out of Richmond, VA, DJ Tony Fernandez has been a DJ, Remixer, Producer, Musical Soothsayer and Audio Gear Oracle since 1980. Find him on facebook. Email firstname.lastname@example.org