Ringtones

Far be it from me to get my legal advice from Engadget, but there’s an interesting nugget in this piece about the legality of making your own ringtones:

[T]he RIAA wanted to be able to distribute ringtones of its artists without having to pay them big money to do so (surprised?), and it won a decision last year before the Copyright Office saying that ringtones weren’t “derivative works,” meaning they didn’t infringe on the copyright of the songwriter.

If you want to sample a song, or create a new mix of it (a “derivative work”), copyright law requires you to obtain the permission of the artist who wrote the song. It’s set up that way to allow artists control over what happens with stuff they write, but it ends up kind of sucking for rap artists. On the one hand, there’s tons of cool new art you can make by sampling other people’s songs (see The Beastie Boys, lots of other early hip-hop, and tons of techno), but on the other hand if you make tons of money with a song based around someone else’s hook, and don’t pay the person who wrote it originally, that’s pretty unfair for them (see: Ice Ice Baby vs. Under Pressure). A good solution to all of this would be compulsory licensing, but at the moment, if I write a song that you want to remix, you can’t do it unless I give you my permission.

The question of ringtones came up because the record industry wanted to be able to sell them without negotiating new contracts with artists. If ringtones are derivative works, then the artists own the rights to them, and record companies would have to pay for the rights to sell the songs as ringtones in addition to selling them as albums. If ringtones are not derivative works, the record companies can make a killing selling them and the artists don’t see any additional cash.

As a consumer, this is one of the few times the RIAA’s greediness pays off. There’s no reason that you shouldn’t be able to play a song, once you’ve bought it, anywhere you want, even on the crappy speaker built into your cellphone. But the RIAA didn’t ensure that ringtones weren’t derivative works just to be nice and kindly let you copy them from your computer to your phone, they did it so they could sell you the separate file, and spend a lot of time making sure that their contracts with cellphone makers required that the phones refuse to play any file they didn’t sell you. So it’s all kind of funny. The RIAA worked to make sure it was legal to create your own ringtones, then worked to make sure that you couldn’t do anything with them once you did, hacks aside.