Since I started editing guardian.co.uk/music in 2008 I’ve spoken to a fair few music bloggers. Sometimes I’ll ask how they acquire the rights to the MP3s they post online and the answers often contain things like “I kinda just chance it”, “I didn’t really know I had to” or “the bands need the promotion - it’s fine, right?”.
In a world where so much content is posted online without copyright clearance it’s understandable to see where this mindset came from. And as someone who’s posted tracks on the Guardian’s own music blog, I know what a thoroughly confusing system it can all be (sometimes staff on the major labels don’t even seem to know where they stand on the matter). But still, posting MP3s without permission can land you in a whole tub of legal hot water - and even if you do have the rights cleared, you might still end up getting a take down notice and have no idea how best to combat it.
With this in mind I headed to the #bloggersfightback panel at SXSW festival in Austin to get a clearer picture of where music bloggers stand when posting tracks. Their talk was focused on US music blogging, but there are tips here relevant to all …
1) Posting a ‘fair use’ comment doesn’t mean you’re protected
Hosts Mehan Jayasuriya and Michael Weinberg kicked things off with a look at ripped YouTube videos which had an account holder message that said something like “No copyright infringement intended” or “Fair use”. This doesn’t make a difference legally. Jayasuriya compares it to hitting someone in a car that has “no bodily harm intended” sprayed on the side. Simply saying that you’re acting with good intentions doesn’t mean you are.
2) The same goes for posting contact details
Jayasuriya wasn’t sure when the common practice started for blogs - including well known ones such as Gorilla V Bear - to post things like “If this infringes copyright then please contact me on this email address and I will take it down”. But he does know that, on a strictly legal level, such messages won’t help you at all. However, messages like these do show that you’re a co-operative person and aware of the issues around copyright. It won’t help you in a court of law, but putting up these kind of comments could possibly dissuade a label or artist from taking you straight to court.
3) Don’t take legal advice from Yahoo! answers
This hopefully goes without saying, but some people have asked questions on Yahoo! regarding how to post MP3s legally on their blog and let’s just say that the advice given by users hasn’t always been on the money.
4) Posting full MP3s can never be called ‘fair use’
“Fair use” might cover music in the background of a video clip, or the use of part of a track in a mash-up. But it almost certainly can’t be used to defend the posting of an entire track online without permission.
5) Always get permission from rights holders
Copyright is a complex beast and each track will have recording and publishing rights that need to be granted – normally by the record label and publisher respectively. Most bloggers aren’t always able to easily find and contact these people directly, however, and normally their only point of contact with an artist is through their PR. This isn’t a problem – it’s fine to do your dealings through a band’s PR – as long as you …
6) Remember to keep all emails granting you permission
Keep a record of any conversation you have where you’ve been given permission to post a band’s music online. Be as explicit as possible in this conversation about what permission they’re giving you (ie Can you post the full track? How long can you host it for? When are you allowed to put it online?). Proof that you were working with the band’s promo team will help protect you in court.
7) Always reply to a takedown notice
If anyone makes a complaint about the music you are posting on, say, Blogger or YouTube, the service will immediately take it down. They have to in order to comply with the rules that let them function as a hosting site. So what should you do if you get a take down notice? First of all, make sure you reply. When Google shut down several music blogs during what came to be known as #musicblogocide2k10, they claimed it was because the blogs in question kept getting take down notices without replying to them. The blogs responded, saying that they hadn’t received the messages or that the notices didn’t mention which track was the issue. Therefore it’s important to make sure any emails you might receive from your host service won’t end up lost in your spam folder. It’s also important that you read any take down notice’s in full and follow the links provided to see which track is causing the problem. Even if you realise the tracks shouldn’t have been posted and must remain offline, you should still reply to the mail and say this. If you believe you had the permission to post tracks, then include all the documentation you can in your reply, and – again – save a copy of this email. Be as polite and non-confrontational as possible - it can only help your case in the long run.
8) Consider hosting your own blog
You’re less at risk of having your blog taken down this way and you get to deal directly with any copyright complaints. However, there are downsides – rather than a take down notice you could get a harshly-worded letter (or “nastygram”) or, even worse, a direct court notice. Again, respond to these in a pleasant and courteous manner with as much relevant information as you can include.
9) It might be worth registering with the copyright office
When the ICE/DHS in America shut down a handful of hip hop blogs recently, it was suggested that this was not because of the content on the blog itself but because of the material posted in forums and comment sections. It’s a drag to register with the copright office – it costs $105 for a start – but if you don’t then you can be held entirely responsible for any content posted onto your site by your readers. Not a good idea if said readers have an illegal copy of the new Prince album they want to share with people! If your site has a lot of comments you don’t have time to moderate effectively, then it’s worth remembering that your reader’s actions could cost you a whole lot more than $105. You can register at http://www.copyright.gov/
10) Don’t worry too much!
Follow these tips and your back should be pretty much covered. Most labels and artists aren’t out to crush bloggers - they realise that you’re here to help!
For more information, follow @publicknowledge on Twitter
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