Tom's Diner and Remix Culture

Art is, by nature, a conversation, a series of propositions, counter-propositions, assertions and rejoinders, of iconoclasty and idolizing. It is a collaborative canvas that forms the basis of meta-culture. And unfortunately, illegal[1]. Not that laws prevent artists from participating. Remixing is one way of participating in the meta-culture, the second-oldest form of art expression. Taking something and modifying it can elevate the original.

Take, for example, Tom’s Diner.

Suzanne Verga’s original version(s) were two separate tracks. One, a minimalist acapella rendition virtually untouched by the studio. The other, was a simple piano track. One remix - by DNA - took the original rendition, combined it with the bonus outro, and then built a dance track around it. Their remix had an almost jazzy feel.

And rather than go to court over it, Verga’s label simply purchased the remix. It became the definitive version, the one that made it onto charts. The DNA remix wasn’t the first remix, but it legitimized remix. Verga’s original went down in history as the first mp3 file during Fraunhofer’s development of the codec, achieving immortality in its own right.

Some folks include covers as a subset of a remix. It’s true that every performance is different, every artist putting their own touch. It isn’t strictly remix as in using parts of the original recording to make something new, but a different interpretation of the source it is. And each cover adds new meaning to the original rendition. Think Johnny Cash’s take on Riders In The Sky, which built on and offered a different vision of Burl Ives’ recording. Or more infamously, 4 Non Blondes’ What’s Up: one of the early internet meme videos was a cover, which in turn spawned more covers.

It’s strange, then, that the law takes a dim view of remix, and yet makes provision for covers. Back during the Great American Copyfight Wars musicians lobbied congress to ban mechanical pianos. Instead, congress introduced compulsory licensing: once a track was recorded and published to the public, any old git could publish their own take on it provided they paid royalties (as set by the copyright judges) to the copyright holder. There are limits to this; covers under compulsory license must not change the fundamental nature of the work or the melody.

And so I pour some milk.

1 : Derivative work violating Copyright Holder's rights to monopolize

Further Reading
Larry Lessig has some great, free books on copyright. You can find Remix here (mirror):

Adrian Johns wrote a wonderful history of Piracy and Copyright. His book, Piracy: The Intellectual Property Wars from Gutenberg to Gates, can be purchased from Amazon here or previewed on Google Books here

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Thanks for the links.

The Johns book looks interesting - is the typography really as bad as it seems from the Google Books preview? I struggle to read stuff that has no space between paragraphs.

Even with your qualification, this isn’t technically correct. Its perfectly legal for me to remix someone else’s work without the original copyright holder’s permission. What is not legal is for me to distribute my work without permission. I distinctly don’t have the right to sell my remix without permission.

One major difference between covers and remixes: covers will generate royalties for the original songwriters as well as the new performers. With remixes, even with permission it depends on how the deal is structured. By my experience doing remixing and many people I’ve known in the past, unless you are a REALLY BIG NAME mixer, chances are its work for hire.

The typography is astonishingly terrible, even in digital form. I purchased it on Amazon, imported it into calibre, and converted it for use with my Kobo. Seems to have fixed it.

In the US, it is the act of creating a derivative work that is illegal, regardless of intent. Not that anyone would know the remix existed unless you told somebody

Nope and nope. Derivative works can be overlapping but are a separate issue. But again, it is not illegal for a person to remix something without the rights holder’s permission as an act in and of itself. You can’t have a copyright claim until a copy is distributed.

By your understanding the mere act of playing two records simultaneously would constitute a criminal or actionable act when in fact this is not the case.

oh you might be surprised

Ah, you are consistent in your flouting of intellectual property rights and licenses, I see. :slight_smile:

In the US, at least, it appears (on a straight-forward reading of copyright law) that the act in violation is the creation of a derivative work, distribution of the derivative work being a second infringement.

Upon further rules lawyering it seems that the criminal infringement clauses mainly apply to direct duplications of works, though it’s possible that Remix is a criminal offense rather than a civil one if you do it for the money. Still illegal, though.

(a) Criminal Infringement.—
(1)In general.—Any person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18, if the infringement was committed—

(A) for purposes of commercial advantage or private financial gain;

(B) by the reproduction or distribution, including by electronic means, during any 180–day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000; or

© by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution.

I have no idea how you reach that conclusion from the quoted section copyright law. From that quote, the act of recording the well known “Amen break” and the guitars from say “Tighten Up” into a sampler and triggering simultaneous playback would not be a civil or criminal offense even though in the most basic sense it would constitute a “remix” Even recording the audio of the resulting layering of copyrighted sounds would not be an offense.

But, obviously distributing the resulting recording would potentially be an offense. Distribution is obviously a separate issue but we’ve already covered that.

I’d also add this book to reading on the evolution of copyright in the US, if you’re interested in the topic (I know Alex, BTW):

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