Introduction
Within the diverse world of music, DJs hold a significant creative role. They’ve transcended their traditional status as background players to become celebrated figures in the industry. Recognized for their unique style, they offer innovative contributions to shaping musical experiences. However, the existing compensation models often overlook a crucial aspect of their craft. This exploration aims to address the need for equitable compensation, both for DJs performances and their art of track selection.
1. The Role of DJs in the Music Industry
The history of DJs is deeply intertwined with the evolution of music and entertainment. DJs emerged as individuals responsible for selecting and playing recorded music on radio stations or at live events. Over the years, their role has evolved, expanding far beyond the confines of playing records. Today, we celebrate DJs as true artists, as their craft goes well beyond simply pressing play on a track.
DJs as Performance Artists
The essence of DJing lies in the ability to curate a sequence of songs that tell a story. This curation evokes emotions and takes the audience on a musical journey. This process involves several layers of artistry.
DJs excel at mood crafting, utilizing their musical acumen to set the perfect atmosphere. They assess the room’s energy and select tracks that match the moment, whether it’s about building anticipation or creating euphoria. Their mastery of seamless mixing, involving track selection, beatmatching, phrasing, and understanding music’s harmonic qualities, sets them apart. They are genre fusion maestros, skillfully blending tracks from various genres for unique and surprising audio experiences. Moreover, they are adept at audience interaction. By keenly observing the crowd’s reactions, DJs adjust their selections in real time, adding spontaneity and excitement to their sets.
DJs as Masters of Track Selection
DJs stand out in the music world due to their exceptional track selection skills. This is a core element of DJing that deserves recognition and compensation. They don’t merely play one song after another. DJs craft musical journeys, seamlessly blending tracks to take the audience on immersive experiences. DJs excel in discovery and digging, investing extensive time exploring various music sources to uncover hidden gems. They’re musical explorers, reviving forgotten tracks. Creative DJs fearlessly introduce audiences to new sounds, challenging musical norms by blending genres, presenting fresh artists, and reimagining classics. Some DJs tell sonic stories, evoking specific emotions and moods, with each track serving as a chapter in their tale. Through their track selections, DJs forge unique musical identities, akin to a visual artist’s signature, connecting deeply with their audiences.
2. Current Compensation Models
In the music industry, DJs have distinct compensation models compared to other music professionals like singers and songwriters. DJs primarily earn income from live performances. They receive fees for their sets, which can vary based on factors like popularity and venue. Securing gigs and managing bookings is often their responsibility, making it competitive and challenging. Unlike singers and songwriters, who can earn royalties from various sources, DJs mainly rely on live performances for income. They generally lack access to additional revenue streams. DJs typically do not receive royalties for track selection or the use of their sets on platforms like radio, streaming services, or in public spaces. This disparity raises concerns about fairness and equity within the current system.
3. Legal and Copyright Considerations
The contemporary music landscape has evolved. Nowadays, DJs emerge as artists who invest significant creativity, expertise, emotion, time, and patience in crafting their sets. DJ sets represent not mere compilations of tracks but unique artistic expressions that transcend the original compositions. In light of this transformation, there’s a compelling legal argument to award copyright protection to DJ sets. This would be in addition to the neighboring rights DJs themselves currently enjoy.
A. The Nature of DJ Sets
DJ sets represent derivative works or adaptations of original songs. DJs meticulously select and arrange tracks to create a continuous and cohesive experience for their audience. In this process, DJs apply their own interpretations, creativity, and unique artistic identity, akin to actors who interpret and perform plays. Therefore, DJ sets should qualify as original creative works under the scope of copyright law.
Originality
Under copyright law, only “original works” are eligible for copyright protection. DJ sets undeniably meet this criterion. They go beyond mere compilations of tracks. DJs exhibit a distinct and clear identifiable distinction between the original works and their unique interpretations and adaptations. The essence of a DJ set lies in its originality. It represents a fusion of various musical pieces into a new and original creation. This originality extends beyond mere song selection and sequencing; it involves DJs infusing their own creative choices, influences, and artistic vision into each set.
Creative Identity at the Core
The creative identity of DJs is at the heart of their sets. Similar to how painters have their distinct artistic styles and actors bring their unique interpretations to original plays, DJs craft their sets to express their musical identity. Every DJ has a distinctive approach to song selection, blending, and transitioning, which reflects their creative individuality. This creative identity is consistently present in every set they create. DJ sets are not merely a sequence of songs; they are a canvas on which DJs paint their artistic expressions, making them inherently original and unique works.
Central Role of DJ Sets in Performances
To understand the significance of DJ sets, it’s essential to recognize that they are the core of a DJ’s performance. While DJ sets and live performances are not synonymous, they are intricately codependent. DJ sets are the foundation upon which DJs build their live performances. There is no DJ performance without the carefully curated sets, which serve as the backbone of the entire experience.
Furthermore, in the digital age, the dissemination of a DJ’s performance extends beyond the live audience to the online world. Video recordings of performances encompass not only the visual aspects but also the audio aspect—the DJ set itself. In essence, DJ sets are original creative works that significantly contribute to the overall performance. Thus, the streaming of video recordings inherently includes both the visual spectacle and the core audio component: the DJ set.
Equitable Recognition Through Copyright Protection
DJ sets can arguably be considered original creative works in their own right. Consequently, it is only equitable to award copyright protection to DJs for their sets. Copyright protection would ensure that DJs are recognized as creators and artists, just like composers, writers, and performers. This recognition goes beyond acknowledging their hard work; it forms the foundation of a legal framework for DJs earning royalties from the recordings and streams of their sets.
Therefore, the originality, creative identity, and central role of DJ sets in performances make a compelling case for extending copyright protection to these unique creations. This initiative seeks to provide a just means of compensation for DJs and their artistic contributions. It aims to do so without diminishing the rights of other stakeholders in the music industry. It reflects the evolution of the music landscape and the integral role DJs play in shaping the contemporary music experience.
B. International Legal Framework
According to extensive analyses conducted by legal experts of the international copyright treaties and laws, the European and international legal frameworks do not stand as barriers for extending copyright protection to DJs and their sets.
Historically, debates have revolved around the scopes of international treaties, particularly the Berne Convention (BC) and the Rome Convention (RC). These discussions have left performers’ performances without copyright protection. However, it is essential to consider the reasons behind these exclusions. They were rooted in erroneous assertions, primarily the belief that performances were ephemeral and devoid of creativity. Moreover, the undue influence of special interests played a significant role in excluding performers from copyright protection. This is epitomized by the “pie theory.” It suggests that awarding copyright protection to performers’ performances would reduce the earnings of authors and composers. Yet, it is arguable that the treaties themselves have never actually explicitly or implicitly excluded performers’ performances from their scope. The evolution of the music industry and the unique creative contributions of performers such as DJs necessitate a reevaluation. These outdated interpretations stand in the way of cultural and creative advancements.
A Broad Definition of “Works” Under the Berne Convention
The establishment of the BC ensured equitable rights for authors across Union states and set minimum standards for protection. It thus provides a promising foundation. Its definition of “literary and artistic works” in Article 2 is open-ended. It covers “every production in the literary, scientific, and artistic domain.” The BC’s inclusion of a non-exhaustive list of work types, such as “translations” and “adaptations,” is pivotal for DJs and their sets. The treaty’s flexible terminology, which lacks explicit exclusions, opens the door for interpretations that encompass artistic performances, including DJ sets.
Rethinking the Notion of Originality in Performers’ Performances
The historical exclusion of performers from copyright protection was rooted in a misconception. Specifically, performers were non-creative, and their performances were ephemeral. Times have changed, however, and modern legal thought now challenges these notions. The Vienna Convention (VC), particularly Art. 31, is relevant to interpreting the BC. It provides that, when interpreting treaties, emphasis shall be placed on the ordinary meanings of their wording. Thus, performers’ performances should be regarded as “productions” within the “artistic” domain, falling under the scope of BC copyright protection.
Thus, we can interpret the non-exhaustive BC Art. 2 list to encompass performers’ performances. Legal theory now comprehensively refutes the idea that performers lack creativity. Performers, like DJs, bring their creativity and personality to their interpretations, making them legitimate candidates for copyright protection. The BC’s original intention to protect “authors” can now extend to performers. This should include DJs, who are authors of original interpretations of several works cumulated within each of their sets.
Coexistence of Copyright and Performers’ Rights
The RC’s adoption in 1961 to supplement, not replace, copyright protection is a significant aspect of this reevaluation. RC Art. 21 ensures that it does not prejudice rights under other treaties, including BC-based copyright, from supplementing performers’ rights.
The existence of copyright for performers under US law demonstrates that the BC does not inherently oppose copyright for performers. Moreover, the willingness of countries like Canada, a BC signatory, to extend copyright protection to “performers’ performances” is noteworthy. This serves as evidence that the BC does not inherently preclude such copyright.
Shifting the Focus to Protecting Creative Contributions
The central intent of the BC was to protect authors’ rights. Given the creative nature of performers, it is justifiable to consider them “authors” of their interpretations. Therefore, there is substantial support for performers, including DJs, whose performances meet the originality requirement to fall within the BC’s scope. The treaty does not explicitly prevent signatory states from granting copyright protection to performers. This aligns with the emerging recognition of the unique creative contributions made by DJs in shaping their sets.
Thus, the international legal framework does not pose insurmountable obstacles to providing copyright protection for DJs and their sets. These treaties offer flexibility and an open-ended approach to defining “works”. They implicitly support the evolving understanding that performers, including DJs, are creators and deserve copyright protection for their original interpretations. Therefore, the legal framework should be harnessed to promote the recognition and protection of the creative contributions of DJs and the unique works they craft through the art of track selection.
C. EU Legal Framework and the CJEU
EU case law has consistently emphasized that copyright eligibility criteria should be applied uniformly, regardless of the type of work. This principle stems from the harmonization of copyright criteria. It implies that DJ sets should be treated equally, in the eyes of the law, as any intellectually creative works. Or, if not equally, at least with a higher degree of similarity. The CJEU’s reliance on international treaty principles further supports the argument that EU law should not prevent copyright protection for DJ sets.
To apply these principles to DJ sets, we need to consider the CJEU’s interpretation of the terms ‘work’ and ‘originality’. Particularly, whether the Court’s views align with the creative process involved in DJing and the nature of DJ sets.
The CJEU has referred to the Berne Convention’s provision on ‘intellectual creations’ in interpreting the term ‘work’. This reference suggests that copyright protection extends to works that are the result of intellectual creativity. In the context of DJ sets, a DJ’s performance is indeed an intellectual creation. DJs select and sequence tracks and make creative choices in transitioning between songs. They often add their own unique elements, such as remixes, samples, or effects. All these elements reflect the DJ’s personality and originality.
The CJEU has also emphasized that originality requires the creation to be the author’s own intellectual creation, reflecting their personality. This requirement aligns with the DJing process. DJs express their abilities and personalities by making free and creative choices during their performances. Each DJ has a unique style and approach to mixing and blending tracks. This becomes a distinctive expression of their creativity.
Application to DJ Sets
Regarding DJ sets, we can easily distinguish the DJ’s performance from the underlying musical works (i.e., the individual songs) they perform. The DJ’s choices in track selection, order, tempo, and other elements are creative and subjective. Therefore, it is not difficult for experts to distinguish the DJ’s performance from the underlying works. Nor is it challenging to identify the creative choices made by the DJ.
This aligns with the CJEU’s rulings in cases such as Infopaq, Painer, and Levola. There, the Court recognized that copyright protection can extend to various forms of creative works. They can even involve small extracts, personal portraits, or unique sensory experiences (such as taste). The Court’s consistent application of copyright criteria to different types of works implies that DJ sets, as original and creative performances, should not be excluded from copyright protection.
Moreover, the CJEU’s reliance on international treaties is key to determining the scope of EU copyright. This indicates that EU law would not prevent copyright protection for DJ sets unless explicitly prohibited by international treaties. However, extensive analysis suggests that international treaties like the Berne Convention do not inherently exclude performers’ performances. In fact, they provide flexibility for copyright protection for works that fulfill the originality requirement.
Considering this, there is a strong case we can make that DJ sets should be eligible for copyright protection under EU law. DJ sets represent original, creative performances that meet the established criteria for copyright. The copyright criteria harmonization and the CJEU’s case law support the proposition that DJ sets are worthy of copyright protection. This aligns with the principles of international treaties, indicating no legal barrier within the European and international legal frameworks.
D. Domestic Legal Framework
Moreover, when delving into the legal landscape of the Netherlands, we find a relevant provision. The European Member State we’ve chosen as our starting point introduces an additional layer of compensation for DJs under the Dutch Copyright Act. Particularly, we find that DJ sets curated through the art of track selection should be recognized as ‘collections of works’ under the meaning of Article 10(3) of the Act.
This provision stipulates that ‘Collections of works, data, or other independent elements, systematically or methodically arranged, and separately accessible by electronic means or otherwise, are protected as independent works, without prejudice to other rights in the collection and without prejudice to copyright or other rights in the works, data, or other elements contained in the collection.’
DJ sets, meticulously and creatively assembled with individual tracks, align with this definition. They are systematically and methodically arranged, often reflecting the unique artistic choices of the DJ. Therefore, recognizing DJ sets as ‘collections of works’ strengthens the argument for extending copyright protection to these original musical compilations.
E. Royalties for Track Selection
The recognition of DJ sets as copyright-eligible works should inevitably lead to their consideration for royalties. DJs would be entitled to these for the use of their sets, particularly in streams and recordings. DJ sets, like any other copyrighted work, are valuable intellectual creations, and their use generates income in various ways.
Streaming Platforms
Streaming platforms have become a primary medium for music consumption in the digital age. They offer users access to a vast catalog of songs and, often, DJ sets. When DJ sets are streamed on these platforms, they contribute to the platform’s content library, attracting subscribers and advertisers. DJs, as creators of these sets, should be entitled to a share of the revenue generated from streams. This is similar to songwriters and composers earning royalties from their music’s digital distribution.
Recorded Releases
DJs sometimes release sets as recordings, either for sale or as promotional material. These releases can serve as an additional revenue stream for DJs. By classifying DJ sets as copyright-protected works, DJs can negotiate licensing and distribution agreements. This way, they can ensure they receive fair compensation for their creations.
Public Performances
DJ sets are not limited to digital platforms; they also play a vital role in nightclubs, festivals, and events. Public performances of DJ sets draw audiences and generate income for venues. In this context, DJs should have the right to earn royalties for the use of their sets in public performances. This is similar to how songwriters and composers receive performance royalties.
In summary, our view is that DJ sets have earned their status as original works of art that reflect DJs’ creativity and unique personalities. Extending copyright protection to DJ sets is not precluded by international legal frameworks like the BC and EU case law. This recognition would rightfully allow DJs to earn royalties from streams, recordings, and performances. This would reflect their track selection craft and align their rights with those of other music creators. It would also represent a significant step toward a more equitable music industry that values and rewards all contributors, including the DJs shaping the contemporary music experience.
4. Alternative Compensation Models
As DJs increasingly garner recognition for their track selection work, there is a growing need for alternative compensation models. Such models should acknowledge and remunerate DJs for their creative contributions. Existing initiatives in this regard seek to provide a fairer and more sustainable approach to compensating DJs.
Royalties for Streams
Platforms like Beatport LINK and SoundCloud Premier Distribution have pioneered revenue-sharing models that benefit DJs who upload their sets. DJs can earn royalties from the streams and downloads of their sets. This would acknowledge the value of DJ performances and track selection beyond live events. Additionally, platforms such as PRS for Music offer DJ royalties for music played at licensed venues and festivals. They ensure accurate distribution of royalties when provided with precise set lists by venue licensees or directly from the DJs.
Revenue Sharing with Rights Holders
A portion of the revenue generated from the performances of DJs should be fairly allocated to both the rights holders of the sampled tracks and the DJs themselves. The revenue in question includes entry fees at venues and streaming royalties. This way, DJs’ creative contributions can be recognized and compensated fairly.
Companies like Dubset are pioneering technology solutions that help DJs clear samples and secure the necessary licenses for their sets. These platforms aim to simplify the legal aspects of DJing and ensure the fair compensation of rights holders.
Music Licensing Subscription Services
Platforms could introduce DJ-specific licensing subscription services. These services would cover the legal aspects of track selection, allowing DJs to focus on their creative work while ensuring rights holders receive compensation. This way, DJs would subscribe to these services, much like other music industry professionals subscribe to performance rights organizations.
Digital Performance Rights Organizations
Organizations like SoundExchange are traditionally associated with collecting and distributing digital performance royalties for songwriters and artists. Now, they are also exploring ways to include DJs in their compensation models. This approach aims to provide an additional revenue stream for DJs, highlighting the recognition of their track selection artistry.
Conclusion about Track Selection Royalties
In conclusion, the art of DJing has evolved far beyond its traditional roots to become a creative endeavor that deserves equitable recognition and compensation. DJs, as both performance artists and set curators, contribute unique skills and originality to the music industry. Current compensation models, primarily based on live performances, do not fully encompass the multifaceted contributions of DJs.
We have explored the legal and copyright aspects that support the extension of copyright protection to DJ sets. We have highlighted their originality, creative identity, and central role in performances. This recognition would pave the way for DJs to earn royalties for their sets, similar to other music creators. Ultimately, recognizing the nuanced skill of track selection in DJing is key to understanding DJs’ true value in the music industry.
As the music industry continues to evolve in the digital age, it’s essential to adapt compensation models to better suit the changing roles of music creators. Recognizing and remunerating DJs for their art of track selection is a crucial step toward a more equitable and inclusive music industry that values all contributors, including the DJs who play a pivotal role in shaping the contemporary music experience.
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