How do you make a mix tape?

Is there any legal way to make a mix tape for a friend?

• Once a year I burn a CD of my favorite music from that year, and distribute it to my siblings to remember that year by.  It's been a beautiful thing for over a decade now.  It's never been about the music; it's been about the statement and the memories.  But every year, more and more people want it, and as I become more and more of an "adult," I wonder "is there any legal way to do this?"  No one I know, even the lawyers and the professional musicians, have any idea if there exists a system where I can go pay ASCAP or somebody $0.10 per copy per song, and know that I had done the "right" thing?  Or is the law just so corrupt that there is no law (kinda' the way recording stuff off the TV is still illegal, or mixtapes on tape were always illegal but also illegal to enforce.)  Or is it pushing that big Burn button that's built into every computer sipmly illegal or grey or morally relative or whatever, no matter what?  And if there's a legal way to do it, can I ramp it up, maybe make 100 for 100 friends (instead of 5 for 5 friends?)  And if that's legal, can I then sell them on my website?  Etc...

• Answer:

  Making a noncommercial mix tape (as in, an analog audiocassette) of copyrighted songs is immune from claims of copyright infringement, thanks to the Audio Home Recording Act of 1992, 17 U.S.C. § 1008. You can get the same immunity from liability on a CD-R -- if the CD-R is a "music" CD-R. (Most CD-Rs that you buy are labeled for "data." Those don't carry the same legal protection. But Congress has levied a 3% tax on "music" CD-Rs, which are officially digital audio recording media, and the tax goes into various slush funds to compensate composers, music publishers, recording artists, union musicians, etc., for the supposed infringement that home tapers commit. In exchange for the tax, the industry agreed to forswear legal action against home taping and noncommercial copies. The only technical difference between a "data" and a "music" CD-R is that a standalone compact disc recorder, like the kind that would be a component in a stereo, will only write to "music" CD-Rs. A CD-ROM drive in a computer will burn to either kind.) So, summary: As long as your mix tape is onto an analog recording medium (like a cassette) or a digital medium labeled for "music" (like a music CD-R) and your actions are "noncommercial," and assuming you came to possess your copy of the recording legally in the first place, you need not fear liability for making the tape. Some questioners are asking whether you should fear liability for distributing the tapes, even if making them is legal. The answer is probably not, if you're distributing them to "a friend" as you ask. Copyright doesn't stop you from distributing copies to a friend. But if you wanted to distribute these copies "to the public," 17 U.S.C. § 106, that's a different story. I don't think there is any case law on this, and we would need to check the Nimmer and Patry treatises before confidently saying anything here. As a guess, to me it's unlikely you would win a claim that these copies were "lawfully made" under § 109, and for that reason I don't think the first sale exemption would apply. So it would be a bad idea. You would not be a sympathetic litigant if you started giving away free copies of copyrighted CDs to the public, even if they were made under the AHRA's immunity. That's not the kind of behavior the AHRA was designed to protect. (Also, to be clear: ASCAP only represents songwriters, not recording artists or record labels, and only for purposes of performance or transmission, not reproduction. ASCAP and BMI are very handy if you are a nightclub or radio station looking to get blanket permission to play any song. But they can't help with making copies or with the rights owned by record labels and recording artists.)