The Legality of Mixtapes:

Promotion, Piracy and the Copyright Problem

The Legality of Mixtapes: Promotion, Piracy and the Copyright Problem

For all the creativity, excitement and cultural importance of hip-hop mixtapes, there was always an uncomfortable question hanging over the business: were they actually legal? The short answer was usually no.

The basic principle was straightforward. A record company owned the copyright in its recordings, and reproducing those recordings generally required permission from the copyright owner. A DJ could buy a record or receive a promotional single from a record company, but that did not automatically give him the right to copy the music onto hundreds or thousands of cassette tapes and sell them, and that was exactly what was happening.

By the 1990s, mixtapes had become a major part of hip-hop culture. DJs such as Kid Capri, Doo Wop, DJ Clue, Tony Touch and DJ S&S used tapes to demonstrate their skills, introduce new music, showcase exclusive tracks and capture the atmosphere of their live performances. Companies such as Tape Kingz turned the distribution of these tapes into a substantial business.

The strange thing was that the record industry often understood the benefits. Record companies regularly supplied promotional singles to influential DJs. Getting a new song onto a popular DJ's turntables could give an artist valuable exposure, particularly in the days before the internet and streaming. Mixtapes could take that exposure even further, putting new music directly into the hands of thousands of hip-hop fans.

Kirk Burrows of Bad Boy Entertainment argued that street tapes could be an inexpensive way of establishing artists who were unlikely to receive mainstream radio exposure. Rather than spending a fortune recording an album that might never sell, an artist could gain a following by appearing on mixtapes.

There were also occasions when record companies officially sanctioned mixtapes. Arista, for example, authorised tapes featuring its artists. So the idea of a legal mixtape was not impossible. The problem was that permission was the exception rather than the rule.

Are Mixtapes illegal?

One record-company representative claimed at the time that as many as "99 percent of mixtapes sold were illegal". The Recording Industry Association of America (RIAA), which was responsible for fighting music piracy, took the position that promotional records supplied to DJs were intended for playing in clubs or on the radio - not for copying and selling. The RIAA argued that the moment a DJ took a promotional single, recorded it onto a cassette and included it in a commercial compilation, the use had changed from promotion to unauthorised reproduction.

This distinction helps explain the contradictory attitude towards mixtapes. Record companies could see them as valuable promotional tools while simultaneously objecting to the money being made from their copyrighted recordings. Iain McNee, founder of Tape Kingz, summed up the attitude of the mixtape world particularly well when he described the practice as being "totally illegal" while also being "a vital part of rap music."

To DJs and fans, mixtapes were not simply bootleg copies of albums. They were creative works in their own right. The DJ was selecting records, blending beats, scratching, cutting between tracks, adding drops and creating combinations that could not be found on the original releases. The finished tape was effectively a performance. But copyright law did not necessarily recognise that creativity as permission to reproduce the underlying recordings.

By the mid-1990s, the business had become too large for the record industry to ignore. In one of the most dramatic crackdowns of the cassette era, police in South River, New Jersey, confiscated 12,000 mixtapes from a retailer called Street Beat and arrested five people in connection with their manufacture and sale. It was the third major mixtape seizure of the year and the largest at that point, following two seizures in Baltimore.

The financial implications were considerable. Mixtapes generally sold for around $10-$20. If all 12,000 confiscated tapes had been sold, their potential retail value would have been around $120,000-$240,000. And this was only one seizure.

The RIAA estimated that the overall mixtape business involved hundreds of thousands of dollars. Unlike conventional counterfeiting operations, however, production was highly decentralised. Instead of one factory producing thousands of copies, hundreds of individual DJs and operators might each produce dozens of tapes. That made the business particularly difficult to police.

Mixtapes could be bought through independent record stores, shopping malls, flea markets and street stalls. Some distributors had no conventional business address or telephone number and conducted their operations through pagers, mobile phones and post-office boxes. One major distributor, Zed Music, was known to sell tapes from pushcarts and street-fair booths.

Buying mixtapes on the streets of New York

The record industry responded with cease-and-desist letters, warnings to venues and police action. But the mixtape phenomenon continued to grow, and by the 2000s the cassette had increasingly given way to the CD. The basic copyright problem remained the same, but the scale became much larger.

Mixtapes had evolved from DJ performances and multi-artist compilations into major promotional vehicles for individual rappers. DJs such as DJ Clue, DJ Whoo Kid and DJ Drama could build enormous audiences, while artists used mixtapes to release new songs, freestyles and alternative versions of their music between official albums.

The business was no longer simply a handful of DJs selling homemade cassettes on street corners. By the middle of the 2000s, estimates suggested that 30 to 50 million mixtapes were being sold every year, generating an estimated $150 million to $250 million annually. The record industry continued to benefit from the exposure, but the money involved made the legal situation increasingly difficult to overlook.

That came to a dramatic head on January 16, 2007, when Atlanta DJs DJ Drama and DJ Don Cannon were arrested on federal racketeering and bootlegging charges. Authorities, backed by the RIAA, raided their Atlanta studio and confiscated more than 80,000 CDs, along with thousands of dollars' worth of cash, recording equipment and other assets. The raid sent shockwaves through the mixtape industry.

DJ Drama was one of the biggest names in the business, and his Gangsta Grillz series had become one of the most influential mixtape brands in hip-hop. His tapes had helped build the profiles of artists including T.I., Young Jeezy and 50 Cent, demonstrating exactly why record companies and artists had tolerated and sometimes encouraged the mixtape culture for so long. Yet the authorities were now treating the business much more seriously.

The use of federal racketeering charges was particularly startling. RICO the Racketeer Influenced and Corrupt Organizations Act is legislation more commonly associated with organised crime than DJs and mixtape distributors. Drama and Cannon became known as "mixtape martyrs", with many in the hip-hop community believing they had been singled out for participating in a system that the music industry had tolerated for years.

The raid effectively froze the mixtape business for a time. Websites and distributors reconsidered how they operated, while DJs began looking for new ways to build their careers without exposing themselves to the same risks.

The irony was impossible to miss. The record industry had spent years recognising mixtapes as an incredibly effective form of grassroots marketing. Labels were reportedly spending thousands of dollars financing tapes and paying DJs to host them, while simultaneously having lawyers investigate the copyright implications. In other words, the industry had helped create a system in which promotion and piracy had become almost impossible to separate.

The charges against Drama and Cannon were eventually dropped in 2009, but the damage had been done. The raid marked a turning point. The old street-mixtape economy did not disappear overnight, but the business model began to change rapidly.

Digital distribution provided a new route forward. Websites and online platforms could distribute mixtapes to enormous audiences without the costs of manufacturing and physically distributing thousands of CDs. At the same time, artists and DJs increasingly found ways to make mixtapes legally, using authorised material, original productions or promotional releases supplied with permission. The mixtape therefore survived - but its relationship with copyright changed.

From the homemade cassette sold for $20 on a street corner to the multimillion-dollar CD business of the 2000s, the same fundamental question remained: who had the right to reproduce the music? The answer was always dependent on permission. A mixtape could be a brilliant piece of DJ creativity and an enormously effective promotional tool, but that did not automatically give the creator the legal right to reproduce somebody else's copyrighted recordings and sell them.

That is what makes the history of mixtapes so fascinating. They were simultaneously promotional tools, underground art, commercial products and copyright infringements. The record companies needed DJs to break new records. DJs needed the record companies' music to make their tapes. Artists benefited from the exposure, while distributors and tape sellers could make substantial profits. Yet the same industry that benefited from the culture was also responsible for shutting down the operators who pushed it too far.

The 2007 raid on DJ Drama and DJ Don Cannon demonstrated just how far that tension could go. By then, mixtapes were no longer merely a peripheral part of Hip-Hop - they had become a huge shadow economy worth hundreds of millions of dollars.

The cassette era may have started with DJs simply wanting to capture the energy of their performances, but mixtapes eventually became one of the most powerful promotional and distribution systems Hip-Hop had ever created. They may not always have been legal, but their impact on hip-hop was undeniable.

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