Exclusive: DJ Pain 1 demystifies sample clearance, copyright and publishing

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Photo courtesy of UCAN

Madison native, DJ Pain 1, is well known as a DJ and hip-hop producer who has worked with an inexhaustible list of popular artists including: Young Jeezy, Ludacris, 50 Cent and Public Enemy. He is a pillar of the Madison hip-hop community and has been a source of inspiration for many artists worldwide.

Pain 1, also known as Pacal Bayley, has earned his stripes not only as a platinum selling artist and dope producer but as an educator as well. Since having graduated from UW-Madison with a BA in secondary education and an MA in linguistics, Bayley has worked to create a successful non-profit organization known as UCAN (Urban Community Arts Network), along with community leaders, Karen Reece and Mark “Shah” Evans, in order to teach youth about the music industry and give them opportunities to perfect their art through local performance.

In addition to helping artists locally, Bayley has invested a great deal of time researching the music industry and informing the artist community via social media. His YouTube channel contains a compendium of information regarding selling beats, sample clearance, copyright, publishing and theft protection.

In this interview, we talk with DJ Pain 1 in hopes of unraveling some of the folklore that permeates hip-hop producer culture. We hope you enjoy!

J: We’ve noticed you have a lot of videos on YouTube that focus on beat making and music business strategies. What prompted you to start making these videos?

P: I started making production tutorials for my students back when I was teaching multimedia through the Information Technology Academy at UW-Madison. Eventually, a lot of producers were releasing tutorials on production, so I figured I’d start sharing some lesser known strategies– marketing, business, etc. Because we as producers really need to have more of a business foundation to survive and thrive in our careers.

J: In many of your videos you talk about sample clearance. As a hip hop producer is clearing samples something you have to deal with on a regular basis?

P: It’s not really something I have to deal with period, but I do have to deal with questions about sample clearance. There’s so much misinformation about sampling out there and some of it has become almost folklore in the producer community. For example, the idea that a sample doesn’t need to be cleared if it’s under 6 seconds– That’s a myth that so many of us believe. So there’s a need for that information.

J: How has sample clearing affected you as a producer today vs. in the past?

P: Since I’ve started making beats, the sampling laws haven’t changed. But what is new is that musicians are now creating collections of music that sound like vintage soul or progressive rock, the stuff producers love to sample, and selling them or giving them to producers to use in their beats. Guys like Frank Dukes and GKoop are doing this and creating some amazing records.

J: What advice do you give to other producers about sample clearance?

P: To stop worrying so much about it because it’s likely never going to be your responsibility to go through the process… But learn what that process involves.

J: What are some common misconceptions about clearing samples that you have had to tirelessly argue over?

P: People think producers clear samples before selling beats, for example. That’s the number 1 misconception I hear. And it doesn’t make sense because if an artist is being sampled, they will more likely object to the lyrics in the song than the beat itself, which is to say that the entire song has to be cleared. That’s one reason why labels and not producers take charge on sample clearance.

J: How does sample clearance affect advances and royalties?

P: It depends. But usually, a sample costs a few thousand to clear. So any money owed to the producer from their album sales royalties will cover that clearance fee. And sampling can affect your publishing splits, so you may not get any performance royalties from a song you produced if it contains a sample.

J: Who deals with clearing a sample at the Major Label level?

P: The label and possibly a third party sample clearance specialist.

J: In one of your videos you talk about the word “publish”. What is the confusion artists seem to have with that word?

P: I wish I knew so I could end the conversation. I guess people don’t realize that “publishing” literally just means “to make public.” So when a person steals a song or a beat and puts it on Soundcloud or YouTube without permission, they’re violating the law.  They’re publishing the intellectual property of others. This isn’t to be confused with publishing as in performing rights organizations. That’s a source of some conflation and confusion as well I imagine.

J: What is the difference between copyrighting and publishing?

P: Copyright has to do with legal ownership of a master recording whereas publishing has to do with ownership of the musical components– lyrics, melodies, notes– of a song.

J: When is copyrighting your music important?

P: Copyrighting music protects you from being liable for certain legal fees if somebody steals your music and you sue them. So it really depends.

J: What steps can an artist take to protect their music from theft?

P: I think preparedness is the best method. Theft can’t be prevented these days, but you can file DMCA claims easily when your music is published without your consent, for example.

J: How much should someone pay for a beat? What if it contains a sample?

P: They should pay a lot. The sample shouldn’t affect the price of the beat. I mean, honestly, I think all parties should be reasonable and meet one another halfway. A producer who made their first beat shouldn’t ask for $1500 from a local artist and an accomplished producer shouldn’t expect an unsigned artist to give them a huge advance.  But nobody should be devalued either.

J: How much do you charge for a beat? (major label vs. independent / leases vs. ownership)

P: It depends, but I’ll say this: There’s a HUGE difference between what a major label pays me and what an unsigned artist pays me. I’m realistic.

J: Is it important to have an entertainment lawyer?

P: Absolutely. People are out here signing all types of crazy contracts that really hurt them in the long run. They need somebody who can explain it all to them.

J: Has it become commonplace for producers to undercut each other? Do you believe undercutting has affected your sales as a producer?

P: Where there’s free market capitalism, there’s undercutting and throat cutting and cost cutting. It has affected us all– it leads to a race to the bottom in terms of market value.  We have to take advantages of so many other revenue streams to survive because beat prices are going down every time we blink. There’s no regulation or standard.

J: How do you feel about streaming services? (iTunes, Spotify, Amazon etc.)

P: They’re the present and the future, but physical media isn’t dead and I don’t imagine it will ever be truly irrelevant to all consumers.

J: Do you feel they pay the artists fairly?

P: When I finally get paid by one, I’ll let you know. I sort of like content ID money at the moment though. I don’t know if that’s considered a streaming royalty.

J: What do you feel are their advantages vs. disadvantages in this day and age?

P: The advantages are that people are discovering new music again. Streaming services make that possible for certain artists. It’s how Ted Park and I were able to hit Billboard’s top 10 and sign a record deal with Capitol. But radio and television pay more to artists and streaming platforms have become the predominant way people consume music. So that could be seen as a disadvantage.

J: Digitalmusicnews.com had a recent blog post about streaming and stated that a certain band made an average of .004891 cents per stream. This means, if my calculations are correct, that it would take over 2000 streams to equal the cost of one purchased CD. How do you feel about that?

P: I feel depressed. Thanks.

J: What is the best way for an artist to sell their albums in your opinion?

P: Every way. You never know how your fans want to consume your music until you try them out. Some musicians are selling tapes these days. Sole and I sell a lot of vinyl and cds still, but we also make a few dollars here and there from digital sales. I prefer to explore my options before limiting myself.

J: Do you believe physical media is still relevant? If so, how?

P: Because I’m still selling physical media. People can’t hold or trade or frame a stream.  We as humans like having stuff– records, shirts, tour posters– from the musicians we love.

J: Which has been more lucrative for you, physical media or streaming sales?

P: Physical, no contest.

J: What is your next project release and how do you intend to sell it?

P: I just released a project with J Tek titled “Lost” that was all digital. But I’ll be releasing an all digital free instrumental album, Undressed Instrumentals 5, very soon.

J: You recently performed in SXSW. What was your experience like? Do you think SXSW is a good place for artist exposure?

P: It’s a great place for artists who already have fans to meet their fans. It’s hard to gain exposure as a new artist in that arena. There are so many artists there competing for the attention of potential fans. You have to start local/regional in my opinion.

J: Thank you so much for your thoughts. We appreciate you taking the time to talk with us about music and hope your future projects are a success!

P: Anytime! Thank you.

Albums involving DJ Pain 1

the recessionpublic enemyludaversaldeathdrive

Phonorecords: A Matter Where Matter Still Matters

 

Judge Sullivan’s decision in the recent Capitol Records versus ReDigi ruling allows for what we all know is perfectly legal; exchange and personal uses of original physical media, like the original commercial CDs that Murfie stores for an owner, providing access only to the owner.

Beyond that, the ruling was a bit of a letdown. In this modern era of digital audio delivered across high speed networks, we all wanted a profound decision about the future of ownership of our media.  We wanted a ruling that clearly let us know whether our iTunes downloads were albums we really owned versus data we’ve merely licensed. Instead, the case came down to the copying of… phonorecords. Phonorecords?

As defined by copyright law, phonorecords are the “material objects” in which the music is fixed. When the law was created in 1976, this meant vinyl records, eight-track tapes, and cassettes. The various music formats which followed over the years were also very clearly material objects. In the ReDigi case, the judge takes the definition of phonorecord to an entirely new level that now includes the physical section of magnetic bits stored on our harddrives in the case of iTunes downloads. By contrast, an album that is sold or accessed on Murfie’s platform simply is a CD phonorecord, stored for its owner’s convenience in Murfie’s disc vault.

And, this is where ReDigi ran into trouble. The instant that original, licensed download of Thriller was saved on our harddrive, that tiny section of bits on our physical drive became the material object associated with that phonorecord. Short of teleportation, it didn’t matter how fancy ReDigi’s system of transferring data was because, in the end, ownership of the concrete physical thing wasn’t conveyed to the buyer. The judge ruled that the laws of physics made it impossible to transfer a phonorecord (i.e. a material object) across a network in a manner that didn’t involve making a copy.

Extending the definition of a phonorecord to account for bits on a drive leaves open some interesting questions. The judge ruled that the first sale doctrine “still protects a lawful owner’s sale of her ‘particular’ phonorecord, be it a computer hard disk, iPod, or other memory device onto which the file was originally downloaded.” This seems to imply that we’re able to sell a harddrive containing a bundle of original mp3 downloads. But what about those mp3s that were transferred over to this harddrive when we upgraded it to a larger size? Or, even those files that were copied over to a new directory (file system specifics aside)?

In tying the case back to elements of copyright in place long before the rise of digital audio, the judge took a conservative approach and declined an opportunity to chart a path for first sale in the digital realm. He cited as much in his decision: “Congress has the constitutional authority and the institutional ability to accommodate fully the varied permutations of competing interests that are inevitably implicated by such new technology.”

In other words, congress needs to update our laws if the original copy of your iTunes download on your harddrive is going to be considered something more than a phonorecord that’s stuck with you (or whomever has your computer). So, for those of us waiting around for a digital first sale doctrine, it could be a while.

In the meantime, Murfie already provides a path forward for music ownership in a digital world. We’ll continue to maximize the value of your music within time-tested laws, but we also applaud any work entrepreneurs, legislators, and courts do to modernize those laws to reflect how our systems for transacting, storing, and accessing music, books, and movies that we own actually work. These advances are good for all parties and can hardly fail to lead to many new opportunities for creators, the various supporting media businesses, and fans alike.

Please drop in and check us out.

Last updated: 04/02/2013 at 4:22pm; a draft was posted by mistake

Owned -vs- Rented Media and the “Right to Resell”

Bill Rosenblatt of GiantSteps Media published a thought-provoking article The right to resell: a ticking time bomb over digital goods. It’s worth a read. Below I’ve shared some of my comments on his article.

When it comes to media in our culture today, we have two crisp models of acquisition, as defined by contracts, legislation, and case law: ownership and rental. Ownership falls almost exclusively into the “physical media” bucket and “digital media” is generally a rental (licensed) model. I for one hope we can someday work out a third model for “digital ownership” that works for consumers and for creators and for rights-holders.

If we as a society can create this third model of “digital ownership” sooner rather than later, we can leave “rented media” behind, in what will be a comparatively small bucket of “non-transferrable assets.” For example, over the last 30 years, US consumers have invested, in 2012 dollars, on the order of a quarter-trillion dollars in physical CDs, each with crisp fair-use and first-sale rights. The comparative total investment in rented digital music in the last 8 years is on the order of 5% of that.

We should be thoughtful about railing against rights-holders for the legal rights (or lack thereof) of the digital music that consumers have (bought) rented. In theory, we consumers knew exactly what we were getting into. That is to say, the terms of the licenses we agreed to are not unclear. Of course one can argue whether the average 18 year-old can and will read and understand all that legalese.

The ReDigi solution strives to expand the scopes of both legislative dicta and case-law. As Mr. Rosenblatt suggests, they’ve chosen a challenging mountain to climb. I’m not so sure I agree with his aside that it’s an odd position for ReDigi to take to enable first-sale-like rights AND bring the rights-holders in to participate as well. While this is indeed a deviation from what legislatures and judges have enabled, let’s be open-minded about asking questions like “why not?” as we attempt to sort out these thorny problems.

The fundamental challenge here (IMHO) is that most consumers of downloaded content make certain assumptions that they have fair-use and first-sale rights. They do not generally have those rights.

Each and every day Murfie wrestles with these issues of ownership -vs- rental as we attempt to integrate all of our customers’ music purchases across any and every physical and digital format.

Music tastes change…

So don’t forget about the ace up your sleeve

Remember when Kings of Leon had indie cred? [This was before they blew up in the U.S., their singles Sex on Fire and Use Somebody pervaded the airwaves, and their egos perhaps got the best of them when they started to cut short shows – and axed a summer tour – for suspect reasons.] No? Fine then: I have no choice but to dislodge the memory from your brain by way of force, er story.

Once upon a time…in a land far, far away…KOL was perceived as gritty, bluesy Southern rock. Their music was popular with the hipster crowd. The band still sported weird haircuts. Etc. Need more proof? Just listen to their debut studio album, Youth and Young Manhood: it’s raw and unvarnished, nothing like their arena rock sound as of late.

Now, let’s say you’re one of those KOL fans who bought out their discography due to your affinity for their early stuff, but ultimately lost interest as they quote, unquote became sellouts. What are you to do with the latest, traitorous albums? Well, one of the many pluses of buying music compact discs is that you can sell them at a later date. Say what?! Here’s what’s up: you’re protected by the first-sale doctrine, which allows the purchaser of a copyrighted work to transfer their lawfully made CD of the copyrighted work to someone else.

This solid guarantee of legal rights to sell and trade your used CDs, my fickle music-loving friends, is your pocket aces hand…so don’t forget to play it! It’s your ticket out of being saddled with albums you no longer care for. Read more about selling your CDs, legally, here.