Claire Corlett

Fish Food, Fish Tanks, and More
William Fisher, CopyrightX: Lecture 3.3, The Subject Matter of Copyright: Music

William Fisher, CopyrightX: Lecture 3.3, The Subject Matter of Copyright: Music

Copyrights in music
differ from copyrights in literary and dramatic
works in several ways. Perhaps the most important
is that there are two different kinds of
copyrights that involve music. The more traditional of the two are
copyrights in musical compositions. As you can see, section
102 (a), refers to these as copyrights in musical works,
including any accompanying words. These have been around
for a very long time. The second type, which was added to the
federal copyright statute only in 1972, consists of copyrights
in sound recordings. As I mentioned earlier,
in most countries legal rights to sound recordings
are known as neighboring rights. In the United States, however,
they are referred to as copyrights. The legal rights associated with
these two types of copyrights and the complex business models
that capitalize on those rights are perhaps best seen
by tracing the life history of a typical
piece of popular music. I’m going to tell this
hypothetical story using a slide. As you’ll soon see, the
narrative is complicated. Don’t be discouraged if not all features
of the story are clear right now. We’ll return to it several times
during this lecture series. Imagine that I’m a pretty good
composer, but not much of a musician. I compose a song. It has a memorable melody and some
conventional sentimental lyrics. I wrote it down on some sheet music,
so I satisfy the fixation requirement. I thereby, as you know, acquire
a copyright in my composition. I could if I wanted retain ownership of
my copyright, but as a typical composer I lack the business skills or time
necessary to exploit it effectively. So instead, as is now customary in the
United States, I sign all of my rights to a music publisher. There are tens of thousands
of these in this country. From this point forward in
the story, the publisher will retain the copyright
and the composition. In other words, the publisher
will not assign it further. Rather, the publisher will make
money for itself and for me by issuing licenses to a
variety of other organizations– in other words, permissions
to engage in activities that otherwise would violate copyright. The most important of
these licenses consist of the right to make so-called
mechanical copies of the composition. Typically such a
mechanical license will be issued to a record company, which
is interested in making and selling sound recordings of my composition. The independent rights of the musician
who actually makes that recording we’ll discuss in a minute. Back to the narrative, the
publisher could in principle enter into such a license with
the record company on its own, but it’s customary in
the United States to use the services of an intermediary,
namely the Harry Fox Agency. If the CD and other products
embodying the recording of my song is commercially successful, the
music publisher, who as we saw now holds the copyright in it, will begin to
exploit other licensing opportunities. For example, the publisher will
likely issue a reproduction license to one of the four major
sheet music printers in the United States, which
will then print and sell sheet music, which in turn will be
purchased by amateur guitarists who want to learn how to play my song. If the song is sufficiently popular
and evocative that a movie studio wants to include in the soundtrack of a movie,
then the music publisher and the studio will negotiate a so-called
synchronization, or sync, license. If there’s demand for my
music in other countries, the publisher will likely issue a
so-called sub-publishing license to a similar publisher in
one or more other countries. The terms of these several
contracts will vary, but it’s typical for the music publisher
to turn over to me half of the license revenues it earns from
these various sources, keeping the remainder,
of course, for itself. So now let’s return to the
musician, the performer, whose recorded rendition of my
song is crucial to the success of my composition. As I mentioned earlier, the creative
contributions of the performer will generate a second independent
copyright in the sound recording. It’s possible that the
performer will have to share that copyright
with a sound engineer, but we’ll put that nuance to one side. As was true of the composer, it
would be possible for the performer to retain that copyright, but
at least until quite recently, it was customary for performers
to enter into so-called recording contracts with record companies. Such recording contracts also have
many complex terms, some of which are likely to be onerous which
we’ll discuss in a few weeks. The central term, however,
is straightforward. The performer assigns his
copyright in the sound recording to the record company. By now I hope the color scheme
of this chart is apparent. The blue figures represent
artists, the people who make creative contributions
to the finished product. These are the folks who, in
the rhetoric of copyright law, are commonly referred to as creators. Red designates an
assignee of a copyright. Purple designates a licensee, and
yellow designates an intermediary. Arrows signify transfers
of legal rights. As you can see, the legal position of
the record company is the most complex. For the reasons I’ve
sketched, the record companies occupy two legal positions– it’s
the assignee of the sound recording copyright and one of the licensees
of the musical composition copyright. That’s why it’s shown in the
chart as half red and half purple. We’re not done yet, however. The music publisher, which
to repeat holds the copyright in the original composition, enjoys one
additional valuable entitlement, namely the exclusive right to
authorize so-called quote, public performances, end
quote of the composition. Such performances include playing
the song at a park or a theater and more importantly, broadcasts
of recordings of the composition. If the recording distributed by
the record company is popular, several companies are likely interested
in making such public performances. They include radio stations, perhaps
television stations, restaurants that play music in the background,
and nowadays webcasters. The publisher could in principle
negotiate individual licenses with these companies, but that would
be time consuming and inefficient. So instead, the publisher
will almost certainly use an intermediary to manage
its public performance rights. In most countries there’s only one such
intermediary, but in the United States there happen to be three. They are known as BMI, ASCAP, and SESAC. They’re called Performing
Rights Organizations, or PROs. Whichever PRO the publisher selects
will issue so-called blanket licenses to all of the companies
that I mentioned earlier. The reason these are
called blanket licenses is that instead of paying a
small fee for each song it plays, the licensee pays a flat fee–
typically a small percentage of its gross revenues– to perform
any of the compositions in the PRO’s repertoire. The PRO then pays to the
music publisher a slice of the total amount
of the license fees it collects, a slice roughly
proportional to the relative frequency with which my song is played. And the publisher in turn
gives half of that slice to me. The net result– the
more popular a song, the more money flows to the
publisher and to the composer. Notice again the color scheme. Yellow indicates an intermediary. Purple indicates a licensee. Do the radio and television
stations, restaurants, and webcasters shown in the lower
left of this chart have to pay license fees not just to
the music publisher at the top but also to the record
company in the bottom right? In most countries, the
answer would be yes. After all a radio station
when it plays a song is performing not just the
composition whose copyright is held by the publisher, but also the
recording of a particular rendition of the song whose copyright, otherwise
known as a neighboring right, is owned by the record company. It would seem to make
sense for the radio station to pay both copyright owners,
and in most countries it must. Nevertheless, in the United
States radio stations engaged in traditional analog
broadcasting do not make such payments. The reason is that in the
United States, the owner of a copyright in the sound recording,
unlike the owners of copyrights in other sorts of works, does
not enjoy an exclusive right of public performance. You’ll recall, I hope, that I discussed
this unusual feature of US law briefly in lecture number
one and the tensions it creates between the United States
and the member countries of the Rome Convention. The principal reason for
the anomalous position of the United States on this
issue is that in 1972, when sound recordings were first given
federal copyright protection, broadcasters in the United States
had considerable lobbying power, and they successfully blocked
adoption of a public performance right for sound recordings. That political explanation is buttressed
by a plausible policy argument. The broadcasters argue
that they shouldn’t have to pay license fees
to the record companies because they argue broadcast of songs
help the record companies by bringing those songs to the attention of
potential purchasers of records, CDs, and so forth. In other words, the promotional
benefit of broadcast substitutes for a license fee. Record companies not
surprisingly disagree. In 1996 and 1998, the
record companies succeeded in obtaining from Congress a partial
modification of this longstanding rule, specifically by securing an amendment
to the copyright statute that gave them public performance rights
for their sound recordings. However, that amendment
was limited to performances that occurred in the form of
a digital audio transmission. The upshot is that today, when
webcasters perform recorded music digitally over the internet they
must pay license fees to the record companies. How those license fees are calculated
we’ll discuss in lecture number eight. For the time being, you need to know
only that this legal relationship is managed by yet another intermediary,
the organization SoundExchange. Record companies have not been satisfied
by this adjustment to the statute. They want full-blown
public performance rights, which would enable them to
charge traditional radio stations, large restaurants, and so
forth who make use of their recordings. Congressmen sympathetic
to their position periodically introduce bills that
if adopted would have that effect. The name of the most recent version
of this proposed legislation is the Performance Rights Act. Shown on your screen
is the press release by the trade association of the
recording companies welcoming the introduction of this legislation. Notice the reference to the difference
between the situation in the United States and the situation
in most countries. The broadcasters, for their
part, continue to push back. Set forth on screen is their
own summary of their stance. Notice that they continue to emphasize
the quote, free promotion, that they’re providing record companies. And notice also their
strategic characterization of the proposed legislation as a tax. Finally, you’ll see that they too have
a group of sympathetic congressmen. For better or worse, this is
a reasonably good illustration of the way in which lobbying
over copyright typically works. For more details concerning
the still ongoing negotiation over this particular
issue, follow the link shown on the left-hand
side of these two slides. So that in brief is the pattern of
legal rights in the US recorded music industry. The arrows, as I’ve indicated, show
transfers of legal entitlements. For the most part, money flows between
organizations through the channels cut by the legal rights,
with one exception. For a long time, record companies
have paid radio stations significant amounts of
money, known informally as paola, to induce them to
play the record company’s recordings over the airwaves,
lending credence to the broadcasters’ contention that radio play serves
as an effective form of advertising. At its peak, roughly $100 million
a year flow through this channel. Legal impediments to such payments have
been slowly increasing for decades, and enforcement of those legal
impediments has also been increasing. For a while, record companies
evaded these tightening rules by using third-party intermediaries,
known confusingly as indies, to make their payments, but
this loophole is also shrinking. Today much less money is flowing
through this channel than was true 40 or even
10 years ago, but the river has not dried up completely. One final dimension that this legal
and financial system merits emphasis. I mentioned earlier
that the most important of the licenses issued
by the music publisher is the so-called mechanical license
that it grants to the record company. Suppose, to return to our story,
that the first commercial recording of my song proved so popular
that a second musician affiliated with a different record company
wants to do a cover of the song, meaning a new rendition of it. Does the second record company have to
obtain a separate mechanical license from the publisher? The answer is, you might suppose, yes. However, the second
record company is not obliged to negotiate a voluntary
license with a music publisher. Rather, so long as the second record
company pays a modest fee just set by the government, it’s free to
make and distribute a new recording, and neither I nor the
music publisher can object. Currently that fee is about $0.09 per
copy sold of the new recording, more it’s a long song. Separate fees apply to ringtones and
recordings delivered to customers through interactive streaming. This is the first example we’ve
seen in this series of lectures of a so-called quote,
compulsory license. We’ll see several more
in future lectures. Not surprisingly, the central
feature of a compulsory license is that the copyright owner
is compelled to issue it. It has no choice but to accept
the governmentally set fee. Typically that fee is
lower than the amount the owner would demand if
the license were voluntary. Equally important, a compulsory
license deprives the copyright owner of creative control. Suppose, for example, that I or the
music publisher acting on my behalf don’t like the second
sound recording artist and think he will butcher my song. As a result, I’d prefer not to
grant him a license of any sort. Nevertheless, neither I nor
the publisher can refuse. To be sure, the statutory
provision that creates this rule contains a few
limitations, one of which is that the second recording
artist may not quote, change the basic melody or fundamental
character of the work, close quote. But that restriction is
construed very leniently. Here’s an example that
illustrates the application of this rule and its cultural impact. In 1967, Jimi Hendrix composed
the song “Little Wing.” He and his group, The
Jimi Hendrix Experience, recorded the song on their
1967 album, Axis: Bold as Love. In terms of our diagram, Hendrix
occupied both of the blue zones because he was both the composer
and the performer of the song. This is reasonably common in rock music. Compositions that fit this pattern
are known as controlled compositions. The contracts typically used
to handle them differ modestly from the contracts we’ve
discussed thus far, but not in ways that merit
our attention right now. I’m going to play the famous opening
segment of Hendrix’s composition, so listen carefully. [AUDIO PLAYBACK] (SINGING) Well she’s
walking through the clouds with a circus mind that’s running wild. [END PLAYBACK] This song has inspired
generations of musicians. A few of the many
commercially distributed covers are shown on the
slide on your screen. Some of these covers could fairly be
described as faithful adaptations that preserved the essential
character of Hendrix’s original. An example might be the version
by Santana and Joe Cocker. Here it is. [AUDIO PLAYBACK] (SINGING) Well she’s
walking through the clouds with a circus mind that’s running wild. [END PLAYBACK] Hendrix himself might
also have been pleased by the extraordinary instrumental
recording of the song by Stevie Ray Vaughan, one of the few
guitarists better than Hendrix himself. So if you don’t know the
recording, pay close attention because this is one of the
best guitar solos of all time. [AUDIO PLAYBACK] [END PLAYBACK] Not all covers come as close
to Hendrix’s original vision. Some would likely have
set his teeth on edge. Examples include Laurence
Juber’s acoustic rendition, which is technically very impressive
but suburban or new age in mood, or The Corrs’ pop rendition. Here’s a slice of the latter. [AUDIO PLAYBACK] (SINGING) Now she’s walking through
the clouds with a circus mind that’s running wild. Butterflies and zebras,
moonbeams and fairy tales. All she ever thinks about
is riding with the wind. [END PLAYBACK] I hope you’ll recall
from the last lecture our discussion of the powerful bond that
many artists feel with their creations. That bond, you’ll remember,
prompted the sculptor Michael Snow to object when ribbons were
hung on the necks of his geese and underlay Gary
Larson’s plea to his fans not to use his cartoons
in their websites. The law, as we saw, often comes
to the aid of such artists, particularly in countries that recognize
strong versions of moral rights. By contrast, the law, and consequently
the culture, of the music industry is radically different. Composers know that once they have
authorized the commercial distribution of one recording of
their composition they could no longer enjoy
what in moral-rights terms is referred to as a right of integrity. In other words, they can’t
prevent other musicians from altering their creations by making
and distributing covers, some of which will be very different from the
versions the composers had in mind. Nor may the first
recording artist object when a second recording
artist makes a cover. Interestingly neither
composers nor performers seem especially troubled
by this prospect. And the legal privilege of making covers
has an important cultural benefit. Each generation of musicians can test
their skills, can show their chops, by attempting their
own recorded renditions of the classic works
of their predecessors. Now to be sure, they have to pay a
modest fee when they sell recordings of their adaptations, but they
don’t have to ask permission. Does this seemingly
fundamental difference between music on the one
hand and other fields of art reflect differences in the nature of
the cultural products in question? For example, the fact
that most sculptures are unique, whereas sound recordings
can be replicated indefinitely. Alternatively, have the
feelings and expectations of composers and musicians
evolved in response to the relatively unprotective rules
that govern– at least in the US music industry. These are hard questions,
and I don’t know the answers. The answers matter. For example, if the first
explanation is right, we should probably
reexamine the contention of the directors of
black-and-white classic movies that they should be able
to block colorization of their masterpieces, a contention
that some countries, not including the United States, currently respect. By contrast, if the second
explanation is right, we may need to reconsider just how
deep are the psychic bonds celebrated by the personality theory of copyright.

5 comments on “William Fisher, CopyrightX: Lecture 3.3, The Subject Matter of Copyright: Music

  1. Composers, performers and broadcasters should experiment with alternate routes to exposure and revenue in this day in age. Creative Commons licensing of works, for example, would sidestep all of the legal issues in artists not retaining full copyright of their works but at the same time give tools to share them. Broadcasters could potentially avoid burdens of dealing with the formal royalty system and, in turn, form more direct relationships with artists. The problem is that there must be a unilateral embracing of this method for it to work and create a viable alternative to the established industry. Great video, thank you for sharing!

  2. Why am I here? Because this post brought me here….

    "William Fisher, a professor of intellectual property law at Harvard, posted to YouTube a lecture titled "The Subject Matter of Copyright: Music." In discussing the complexities of music licensing and cover songs, Fisher played several short clips of music by Hendrix, Santana, and others. Sony responded by having the lecture removed from YouTube, ignoring any fair use protection in excerpting works for educational purposes. While the video was restored after public backlash, most YouTube users don't have Harvard Law School backing them up. Once again, a company has issued overreaching copyright claims with no penalty or consequence for harming an innocent party." – SHAUNC

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