One of the stories that broke during finals that I was dying to write about was Danger Mouse’s release of his new album “Dark Night of the Soul.”
The story is that for unknown legal reasons EMI has refused to release Danger Mouse’s album. While in the past record labels’ decisions where conclusive, the internet age has given artists other options. In that vain, Danger Mouse has refused to not release the album and has decided to release the cd as a book:
This limited edition art book contains 100+ pages of original photographs by celebrated film director David Lynch. Only 5000 copies have been printed and each one is hand numbered. The book will also come with a 24″ X 36″ poster as well as a custom designed CD-R (poster comes folded).
Please note: Due to an ongoing dispute with EMI, Danger Mouse is unable to include music on the CD without fear of legal entanglement. Therefore, he has included a blank CD-R as an artifact to use however you see fit.
The internet of course has obliged and the album is currently available on torrent sites as well as NPR’s on demand music service.
Not only is Danger Mouse’s release yet another demonstration of how music can be released both for free and for profit. But it also demonstrates yet another way artist can and are releasing music without labels.
Legally the release presents an interesting question of contributory copyright infringement (assuming EMI owns a copyright in the album not Danger Mouse.) Contributory infringement requires knowledge of the infringing activity and material contribution. While Danger Mouse’s instruction arguably raise a case for both, the question of the CD is not so simple. Purchasing music CD-Rs includes a royalty payment. 17 USC §1008 provides that no action may be brought for the “noncommercial use by a consumer of such a device or medium for making digital musical recordings.” Thus burning the album to the CD-R would not be actionable.
While EMI would/will likely argue that Danger Mouse is still inducing purchasers to download the music (itself a potential infringement), the material contribution claim is considerably weakened without the CD claim. Since the full story of who owns the copyright in the album and why EMI has refused to release it is currently unknown, the legal implications of this release are impossible to know.
All of that being said, Danger Mouse’s innovation in releasing his album makes this my favorite music release story of the internet age.
