Mixtapes: Sweet Gifts or Illegal Contraband?
Back in the 1980s-90s, when the Sony Walkman was the hot new must-have item, people started making mixtapes as caring gifts to friends or heartfelt confessions of love to a sweetheart. Being born in 1989, I only caught the tail end of the golden age of cassette tapes, but I often see references to this age old gift in TV and film. A recent lawsuit, however, has presented itself to be a wake-up call for those who still create these lovely mementos (presumably in the form of compact discs). On January 6, 2015, Universal Music Corp. and several other recording companies and music publishers filed a copyright infringement suit against companies, such as Centric Group, that create mixtapes and sell them to people as part of “care packages” to be sent to prisoners. 
The plaintiffs in this case are several companies that own the musical compositions in question and other companies that own the sound recordings in question.  Musical compositions are the songs themselves, as a creation of art and sound recordings are the audio recordings of particular performances that are being sold on CDs.
The defendants are a group of companies that create and sell “care packages,” that include mixtapes, that are specifically tailored to each client’s requests.  The defendants profit by either directly selling these mixtapes to families of prisoners or using these mixtapes to promote their other non-mixtape products. 
To be clear “[m]ixtapes are a form of recorded music in which DJs combine (or “mix”) tracks, often recorded by different artists, onto a single CD, sometimes creating overlaps and fades between songs, and/or reflecting a common theme or mood.”  The complaint alleges that these mixtapes infringe upon the copyrights of the plaintiff music companies. 
Copyright Act of 1976 and Case Law
The relevant law, the Copyright Act of 1976, protects a copyright owner’s exclusive right “to reproduce the copyrighted work in copies or phonorecords,”  “to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending,”  and “to prepare derivative works based upon the copyrighted work.”  In addition the courts have, in the past, explained that vicarious liability is established by having the right and ability to control the illegal activity in tandem with a financial interest in the infringing activity. Contributory liability is established if one knowingly materially contributes to the illegal activity of another.  The plaintiffs claim that the defendants violated these three rights under the Copyright Act and are also responsible for vicarious and contributory liability of the acts of each other. 
What the Defendants Allegedly Did
The defendants allegedly created physical wholesale copies of the copyrighted music recordings and made a profit from selling them to families of prisoners. They also allegedly combined tracks from several CDs of different artists to create CDs with unique selections and arrangements of tracks.  Originality in selection and/or arrangement of song tracks could probably qualify these mixtapes as being original enough to be derivative works.  The problem is that the defendants did not have the legal permission from the original artists to create these derivative works.  As for each defendant being responsible for each other’s illegal acts (vicarious and contributory liability), the multiple defendants allegedly worked together on this massive for-profit mixtape operation so both types of secondary liability seem to be established. 
Could It Be Fair Use?
A four prong test for fair use is codified in section 107 of the Copyright Act: (1) purpose of the defendant’s use of the original work, (2) nature of the original work, (3) quantitative and qualitative amount of the original work taken by the defendants, and (4) the effect of the defendant’s act on the potential market of the original work.  This fair use defense against a claim of copyright infringement is a popular one, but it doesn’t always protect defendants. Unfortunately for the mixtape makers, they used the plaintiff’s works for profit, the plaintiff’s music is heavily copyright protected material, the defendants made wholesale copies of countless music tracks, and these mixtapes are taking away from potential revenue of the copyright holders. We’ll see what the courts say on this case, but at face value, it seems as though the mixtapes are blatantly illegal with no good defense.
Mixtapes Come With a Risk
The defendants boast on their website that these care package mixtapes protect against contraband, but these same mixtapes are “contraband personified.”  Moral of the story: be careful next time you think about making a mixtape for a special someone because you might be violating someone’s copyright.
Photo by: Steve “Love the Mixtape” under Creative Commons Attribution-NonCommercial Generic 2.0 License.