Think Twice Before You Dust Off Those Mix Tapes

Digital technologies have allowed people to share music in unprecedented ways, and earlier this week recording artists, music industry leaders, and policymakers gathered at George Washington University in Washington, D.C. for the Future of Music Policy Summit sponsored by the Future of Music Coalition to talk about their impact on the music community. Also on the agenda were panels on how recording artists can use digital technology and social media to share and promote their work. Unfortunately, some of our intuitions of what kinds of sharing are okay don't always square with the law of copyright. The result has been confusion about the boundaries for legal conduct. For instance, we recently received this inquiry from a reader: "Can I post a mix tape on my blog to highlight a new recording artist? Can I allow visitors to download my mix tape?"

The simple answer to both questions is "not without permission," but there are steps you can take to make the content available to the public on your blog. The Copyright Act gives the author of a sound recording (say, a recording artist) exclusive rights to make reproductions, prepare derivative works, distribute copies to the public, and to perform the copyrighted work publicly by means of a digital audio transmission. 17 U.S.C. § 114. Making a mix tape may implicate several of these exclusive rights. Putting the mix tape on your website for download would be distribution of the work to the public. A visitor to your blog downloading the file would be another instance of copyright infringement.

But wait, what about all of those mix tapes we exchanged with friends and family back in the day? Was all of that copyright infringement? No: many of those analog mix tapes were covered by the safe harbor established in the Audio Home Recording Act of 1992 ("AHRA"), which barred infringement actions for private, noncommercial musical recordings. When it comes to digital mix tapes however, your computer isn't an audio recording device covered by AHRA. See RIAA v. Diamond, 180 F.3d 1072, 1078 (9th Cir. 1999). More importantly, when a mix tape is posted on a blog for any and all to access and download, it isn't a private use anymore, but a distribution to the public. Analog mix tapes are different in kind from what I'll call "digital mix tapes" not only in the scale of distribution, but also in the quality of the reproductions. Because of those differences, posting of digital mix tapes would likely run afoul of the many cases prohibiting file sharing and other forms of individual copyright infringement.

Can making and distributing a digital mix tape be permissible under fair use? Section 107 of the Copyright Act identifies four non-exhaustive factors that courts consider in determining whether a use is fair. Unfortunately, it's hard to predict the outcome of the fair use test, but it's unlikely that posting entire songs on your blog would be considered fair use. Still, there hasn't been much litigation on the fair use of digital mix tapes. In the past, there was little litigation in the area because the inherent drawbacks in analog recording didn't present a real threat to the recording industry. Now, the action is in the area of file-sharing online where, as we've all seen, the RIAA has been quite aggressive.

How can a blogger play it safe? For the most flexibility, get explicit permission from the copyright holder for what you'd like to do. For some genres of music that are dependent upon word-of-mouth to attract the attention of the music industry, recording artists may be willing to allow mix tapes to be created, sold, or their recordings distributed in other ways. The only way to be sure, though, is to contact the copyright holders and get their permission.

This approach is complicated by the reality that many recording artists assign copyright in their sound recordings to a third party when they sign with a label. For you, this means that you would need to make sure that you are getting permission from the actual owner of the copyright who may not be the recording artist. In addition, if the recording artist did not write or compose the music recorded, you would also need to obtain a license to use the underlying musical composition. Still, contacting the recording artist or the publicist for that artist would still be a good place to start in identifying the people from whom you need to obtain the appropriate licenses.

Alternatively, you can link to the material if it's already available on the web. You can either provide links to where authorized copies of the musical files can be found online, or you can make playlists using services that use URLs to music files hosted elsewhere. The benefit of using these services is that you can present to your readers a playlist of the music you like, rather than just a set of links. Services like and also make an effort to comply with copyright law by only linking to authorized copies and obtaining the necessary clearances if they're hosting the music themselves.

CCMixter allows you to download, remix, and share music that has been licensed under Creative Commons licenses. Using CC licensed music means that you can post a mix for your visitors to download, so long as your use complies with the CC licenses that apply to those tracks.  Usually, this means that you must provide attribution to the original creator and distribute your work under the same CC license that the original work was published under.  Often, it also means that your use must be noncommercial. For more information, see this page on the various types of CC licenses offered.

Photo courtesy of Flickr user Phil Gyford, licensed under a CC Attribution-Noncommercial-No Derivative Works 2.0 Generic license.

Subject Area: