Would You Want William Hung† As Your Trier of Fact? the Case for a Specialized Musicology Tribunal*
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Would You Want William Hung† as Your Trier of Fact? The Case for a Specialized Musicology Tribunal* I. Introduction Few analyses of copyright law do not begin with the premise of constitutional mandate as espoused in Article I, Section Eight of the United States Constitution. Never punk enough to rebel, this author will capitulate. Congress is explicitly granted the power to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”1 The English Statute of Anne, widely revered as the foundation of modern copyright law, was billed as “[a]n Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned.”2 The bridge from providing remuneration for the bookmakers’ “very great Detriment . too often to the Ruin of them and their Families”3 to the Sonny Bono Copyright Term Extension Act’s (CTEA) addition of twenty years of protection4 to the arguably eternal duration of copyright5 seems anything but logical. Surely, some would explain away these different approaches as the inevitable result of technological innovation. Such a construction, while truthful to a fault, belies an integral † The author is not blind to the possibility that this reference will be dated before it has even been made. (Indeed, that would be both appropriate and ideal.) William Hung is the Chinese- American University of California, Berkeley civil-engineering student whose off-key rendition of Ricky Martin’s “She Bangs” during the third season of American Idol made him a household name. He has since parlayed the “fame” (or perhaps his particular phenomenon would more appropriately be described as infamy) into numerous television, film, and concert appearances, and even a record deal with Koch Entertainment. Biography Page, WILLIAMHUNG.NET, http://www.williamhung.net/ bio.html. * I want to express my eternal gratitude and zealous affection for the following persons and entities for their invaluable assistance with this Note: Chris Harrison, Professor Oren Bracha, Professor David Sokolow, Kristin Malone, Jamie France, Darius Dills, Zac Padgett, Amelia Rendeiro, the underappreciated members and the indefatigable editors of Volumes 89 and 90 of the Texas Law Review, Thai Kitchen on Guadalupe, Torchy’s, Shaindela, McWhitey, the Lev Lev, Lunarcy Pictures, and Robert Zimmerman. Finally, I wish to thank my parents Bob and Harriet, my sister Rachel, and my grandparents Leo, Noima, Irving, and Hilda for their everlasting love and support. 1. U.S. CONST. art. I, § 8, cl. 8. 2. Statute of Anne, 1710, 8 Ann., c. 19 (Eng.), available at http://www.copyrighthistory.com/ anne.html. 3. Id. 4. Sonny Bono Copyright Term Extension Act, Pub. L. No. 105-298, § 102(b), 112 Stat. 2827, 2827 (1998) (codified as amended at 17 U.S.C. § 302 (2006)). 5. See Eldred v. Ashcroft, 537 U.S. 186, 221–22 (2003) (dismissing a public-domain enthusiast’s First Amendment challenges to the CTEA’s expansion of copyright durations). 1558 Texas Law Review [Vol. 90:1557 fallacy of perspective. The Statute of Anne was structured “for the Encouragement of Learned Men to Compose and Write” and to reverse the “Ruin of [Authors or Proprietors] and their Families.”6 By contrast, the CTEA worked to prolong existing financial enterprises.7 Somewhere along the way, the statutory motives for enacting copyright legislation moved dramatically away from incentivization.8 This Note suggests a complete reform of the present judicial treatment of musical-copyright-infringement cases, the history and pertinent details of which will be outlined in Part II. The larger issue of the varying motivations of American copyright law is beyond this Note’s scope. Nevertheless, this lesson in perspective is necessarily applicable to the numerous calls for im- provement in the enforcement of the musical copyrights. If the existing American copyright regime is to have any legitimacy in the eyes of the pub- lic and the musicians most in need of its consistent functionality, it must alter its perspective. Tim Westergren, founder of Pandora,9 relayed a story in a recent New York Times Magazine article: [There was a] Pandora user who wrote in to complain that he started a station based on the music of Sarah McLachlan, and the service served up a Celine Dion song. [Westergren] “wrote back and said, ‘Was the music just wrong?’ Because we sometimes have data errors,” [Westergren] recounts. “He said, ‘Well, no, it was the right sort of thing—but it was Celine Dion.’ [Westergren] said, ‘Well, was it the set, did it not flow in the set?’ He said, ‘No, it kind of worked—but it’s Celine Dion.’ [Westergren and the user] had a couple more back- and-forths, and finally [the user’s] last e-mail to [Westergren] was: ‘Oh, my God, I like Celine Dion.’”10 As this humorous anecdote evinces, Westergren’s popular website has unearthed an important and revelatory realization: music is, at its core, an objectively classifiable and mathematical art form.11 As such, any test for 6. Statute of Anne, 1710, 8 Ann., c. 19 (Eng.). 7. See Brief for Intellectual Property Law Professors as Amici Curiae Supporting Petitioners at 19, Eldred, 537 U.S. 186 (No. 01-618), 2002 WL 1041866 (“The only effect of these amendments is to give a windfall to current proprietors of works first published or registered during the 55 years between 1923 and 1978 . .”). 8. See Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 YALE L.J. 283, 353 (1996) (“Prior to the first modern copyright statutes in the eighteenth century, writers and artists were heavily dependent on royal, feudal, and church patronage for their livelihoods. This dependency undermined expressive autonomy and thwarted the development of a vital, freethinking intelligentsia.” (footnotes omitted)). 9. Pandora is an Internet radio service that utilizes an online database that helps create “a much more personalized radio experience—stations that play music you’ll love—and nothing else.” About the Music Genome Project, PANDORA, http://www.pandora.com/corporate/mgp. 10. Rob Walker, The Song Decoders, N.Y. TIMES, Oct. 18, 2009, § 6 (Magazine), at 48. 11. See id. (“What Pandora’s system largely ignores is, in a word, taste.”). This runs contrary to the way similar sites work. See id. at 50 (“[T]he idea is that the taste of your cool friends, your 2012] The Case for a Specialized Musicology Tribunal 1559 musical infringement that analyzes potentially illicit activity solely based on a lay, subjective understanding of music is inherently problematic. Musical copyrights, unique in their duality, deserve a uniform infringement doctrine grounded in a sound, logical policy rationale specifically derived from the exclusively scientific art form of music. This Note advocates the formation of academically constituted music tribunals to create stability and credibility. Specifically, Part III will address why musical copyrights are worthy of special analysis, separate and distinct from other enumerated works. Part IV will delve into the academic, logistical, and procedural failures of the present legal treatment of musical copyrights. Part V will outline a solution and the rationales for its immediate implementation. Part VI will conclude the Note. There will be no encore.12 II. History of Music Copyright Law in the United States A. Statutory Formulation The Statute of Anne provided the impetus for the new nation under President George Washington to pass the first American copyright act in 1790.13 Over time, the 1790 Act grew in scope, eventually extending past “books, maps, and charts” to include “prints, . dramatic works, photographs, graphic works, and sculpture.”14 In 1831, Congress explicitly added musical compositions and further expanded protection via a perfor- mance right in 1897.15 In 1909, Congress passed the Act’s most “significant overhaul . since its founding,” expanding the duration and scope of protection.16 Congress enacted a law providing separate copyright protection for sound recordings in 1971.17 This Note is only concerned with sound recordings of musical performances,18 most of which are “owned by five peers, the traditional music critics, big-label talent scouts and the latest influential music blog are all equally irrelevant. That’s all cultural information, not musical information.”). 12. No matter how many lighters are held up for the author, or how many times readers chant the author’s name and arguments in support, the proverbial house lights and PA music will come on, and the Note will be, quite simply, finished. 13. See ROBERT P. MERGES ET AL., INTELLECTUAL PROPERTY IN THE NEW TECHNOLOGICAL AGE 385–86 (rev. 4th ed. 2007) (noting that most of the American states passed copyright laws modeled on the Statute of Anne shortly after independence and that the federal Copyright Act of 1790 was very similar to the Statute of Anne). 14. Id. at 386. 15. Id. at 440. 16. Id. at 386. 17. Id. at 387. 18. Although there are a variety of nonmusical performance types, there has occasionally been controversy in the application of overlap. Rarely has contentiousness been as prevalent as in the suit between avant-garde composer John Cage and British songwriter Mike Batt. See Dennis Kurzon, Peters Edition v. Batt: The Intertextuality of Silence, 20 INT’L J. FOR SEMIOTICS L. 285, 285–88 (2007) (explaining how Batt was forced via an out-of-court settlement to pay for the use of “silence” in an audio recording); see also Mark Steyn, ‘You Have the Right to Remain Silent, but If You Do You May Be Liable to Considerable Damages,’ TELEGRAPH (U.K.) (July 20, 2002), 1560 Texas Law Review [Vol. 90:1557 major record labels—Universal Music Group, Sony Music Entertainment, Warner Brothers Music, BMG Entertainment, and EMI Group.”19 1976 saw the passage of a new Copyright Act, “which continues to serve as the princi- pal framework for copyright protection in the United States.”20 Section 102(a) of the 1976 Act states that “[c]opyright protection subsists .