cjp_30-1_42664 Sheet No. 5 Side A 11/12/2020 09:05:36 R R R R R - NTRO I N A in , 28-OCT-20 8:34 SES U Seq: 1 Seq: ...... 17 41, 42 (William B. Davis et al. eds., 3d ...... 4 HERAPEUTIC University of North Carolina at Chapel Hill. 1 RACTICE T P unknown ANGE ICENSING R NTRODUCTION L I Amanda Reid* ARTICLES ARTICLES USIC HEORY AND Music is used to punctuate the most important Music is used to punctuate the most 1 : T XEMPTION FOR & M HERAPEUTIC ...... 37 E FOR THERAPEUTIC USES FOR THERAPEUTIC T HERAPY SOCIAL UTILITY OF MUSIC: UTILITY OF SOCIAL S ...... 1 T ’ USIC ...... 43 USIC M USIC OPYRIGHT M ROPOSED OF M C P TO J.D., Ph.D., Assistant Professor at the ELAINE FEDER & BERNARD FEDER, THE EXPRESSIVE ARTS THERAPIES 1 (1981) (“The A CASE FOR A COPYRIGHT EXEMPTION EXEMPTION FOR A COPYRIGHT A CASE Music is more than mere entertainment; modern research shows mere entertainment; modern research Music is more than It’s hard to overstate the importance of music. From time immemo- It’s hard to overstate the importance * 1 I. II. III. ONCLUSION NTRODUCTION M K - ed. 2008) (“Throughout recorded time, music has soothed fretful infants, elicited joyful danc bid ing and play, expressed social conscience and religious faith, and expressed grief as we loved ones goodbye.”). that it can be an effective therapeutic tool. The social utility of music effective therapeutic tool. The social that it can be an a legal perspective. and underexplored from therapy is undertheorized this clinical because copyright law directly impacts This is worrisome uncertainty and concerns about fair use discipline. The well-known for music therapists. The high social rightsholder overreach are at play the high transaction costs to license utility of music therapy coupled with under copyright law. To ensure various uses of music justify a carveout field, a statutory exemption for robust safeguards for this burgeoning therapeutic uses of music is warranted. I C \\jciprod01\productn\C\CJP\30-1\CJP101.txt use of the expressive arts in therapy can be traced in time to the dim beginnings of human use of the expressive arts in therapy can be traced in time to the dim beginnings of human artistic expression; it can be tracked across the continents and found in virtually every human culture.”); Kate E. Gfeller, Music: A Human Phenomenon and Therapeutic Tool rial, we have used music to soothe our newborns, celebrate our auspi- rial, we have used music to soothe practice our faith, enjoy our leisure, cious occasions, honor our heroes, and mourn our losses. DUCTION C Y cjp_30-1_42664 Sheet No. 5 Side A 5 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 5 Side B 11/12/2020 09:05:36 M K 2 N in C Y A , USIC in 17, 17 M , HE 9 (1st ed. [Vol. [Vol. 30:1 , T 28-OCT-20 8:34 RACTICE Music is so Music is DULTS NTRODUCTION TO P 4 I A ERGER N Music Therapy: His- A in LDER S. B , O OLICY OLICY HEORY AND note 1, 115 (“The impetus for P 343, 361 (William B. Davis et ORITA Seq: 2 Seq: : T 13 (2006) (“Introduced in the 429, 473 (William B. Davis et al. supra & D , USIC WITH UBLIC UBLIC RACTICE HERAPY supra note 1, at 42. P P M T RACTICE 282, 282 (2007) (suggesting the women’s EDER P CHNECK PPLICATIONS 626 (5th ed. 2018) (“Music would seem to be 626 (5th ed. 2018) (“Music would seem to be USIC The Music Therapy Treatment Process & F A SES OF M HERAPY J. S unknown U Music Therapy in Hospice and Palliative Care EDER T 10 HEORY AND 305, 311–12,Davis et al. eds., 3d 318 (William B. AW AW AND L ICENSING : T LINICAL ANIEL HEORY AND USIC L note 7, at 24–25. C : T The relatively new clinical discipline of music The relatively new RACTICE 6 USIC ND P HERAPY HERAPEUTIC supra A M , T , T NTRODUCTION TO HERAPY I T N USIC OURNAL OURNAL OF LAIR A ERGER J OHN ON M C USIC in HEORY AND , K HYSIOLOGY M NN & B Music’s appeal crosses all walks of life—it appeal crosses Music’s transcends supra note 1, at 53. supra note 1, at 53. : T P 3 note 3, at 9; William B. Davis & Kate E. Gfeller, supra note 3, at 9; William B. Davis & Kate E. Gfeller, A OHN , K USIC ORNELL ORNELL Music therapy can provide health benefits to premature babies, provide health benefits to premature Music therapy can uses the power of music to effect both psychological and physi- music to effect both psychological uses the power of 9 LICIA LAIR OB 7 CHNECK C HERAPY S Kate E. Gfeller & William B. Davis, Kate E. Gfeller, Music Therapy, Medicine, and Well-Being Gfeller, C Gfeller, been recognized as an effective inter- Since the World War II era, music therapy has A B : M T The significance and universal appeal of music makes it a uniquely universal appeal of music makes The significance and The wellness benefits range from the biomedical to the psychother- range from the biomedical to The wellness benefits 8 9 4 5 6 7 2 3 8 NTRODUCTION TO 10 Music is simply in our nature. simply in our nature. Music is I 5 USIC N FFECT NTRODUCTION TO 1996) (“Music is almost always used in the celebrations and rituals associated with important 1996) (“Music is almost always used in the celebrations and funerals; in the work environment; life events, such as birthdays, anniversaries, weddings, in entertainment; and in structuring leisure time.”). apeutic. events in our lives, just as it fills the background of our daily routines. of our the background as it fills lives, just in our events a part of human nature. What man fails to express through gesturing, speaking, writing, paint- a part of human nature. What man fails to express music.”). ing, and sculpting, he expresses through making ological change to treat a range of ailments for patients at all stages of treat a range of ailments for patients ological change to life. help children with cancer manage pain with reduced need for medication, cancer manage pain with reduced help children with offer comfort to the health of trauma victims, and promote the mental their families. terminally ill and vention for soldiers and trauma victims. F fundamental to being human that no culture seems to have been without seems to have been that no culture to being human fundamental it. research in music therapy was the need to help the swelling populations of veterans’ hospitals research in music therapy was the need to help during and after World War II.”); D military bands that performed for convalescing World War II soldiers in hospitals may have military bands that performed for convalescing been the impetus for the music therapy profession). (William B. Davis et al. eds., 3d ed. 2008); Gfeller, (William B. Davis et al. eds., 3d ed. 2008); ed. 2008); Joey Walker & Mary Adamek, I M E Music gives us the ability to communicate what other forms of expres- what other forms to communicate us the ability Music gives sion cannot. \\jciprod01\productn\C\CJP\30-1\CJP101.txt 2 United States just after World War II, primarily as an intervention to help trauma victims of United States just after World War II, primarily internationally as a medical treatment.”); combat, music therapy has grown to be recognized of American Women’s Military Jill M. Sullivan, Music for the Injured Soldier: A Contribution Bands During World War II, 44 J. M al. eds., 3d ed. 2008). eds., 3d ed. 2008) (“While music therapists often address the psychological and social needs of eds., 3d ed. 2008) (“While music therapists often address the psychological and social needs persons with medical problems, music therapists also collaborate with physicians, nurses, - physical therapists, and other health-care providers to treat or ameliorate the physical, biologi cal, or neurological aspects of the disease or condition.”) (parenthetical omitted). therapy torical Perspective, demographic factors including age, race, sex, and wealth. age, race, sex, factors including demographic effective therapeutic tool. effective therapeutic A cjp_30-1_42664 Sheet No. 5 Side B 5 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 6 Side A 11/12/2020 09:05:36 3 in 12 ENTAL EDIATRIC Part I M P RACTICE IN 14 P 28-OCT-20 8:34 RACTICE IN HERAPY RACTICE IN P supra note 11, at 6–7 T P USIC 152, 192 (Joke Bradt ed., Pediatric Intensive Care, HERAPY 36 (3d ed. 2014) (“As a pro- M ARE Seq: 3 Seq: HERAPY T USIC USIC T C M USIC HERAPY USIC M T M EDIATRIC USIC P UIDELINES FOR G M TILITY TILITY OF Both the scientific and anecdotal evi- Both the scientific in unknown 15 U UIDELINES FOR EFINING UIDELINES FOR G RACTICE IN G in , D P OCIAL in S RUSCIA HERAPY T 3, 4 (Joy Allen ed., 2013); see also Bradt, E. B supra note 11, at 196, 202. , ARE USIC C M ENNETH RUSCIA B Often the most effective musical selections include arrange- effective musical selections include Often the most Music therapy involves a professional relationship between a between a professional relationship involves Music therapy E.g., Joy L. Allen, Introduction, EDICAL For entertainment professionals, negotiating music licenses is a For entertainment professionals, negotiating supra note 1, at 52. 11 Therapeutic uses of music can range from receptive listening to active music-making. This means the license fee is unconstrained and permission can be denied altogether. Joke Bradt, Introduction, See Lillian Eyre, Introduction, between music therapy and music I acknowledge there are those who distinguish 3, 9–11 (Lillian Eyre ed., 2013). 13 16 M Part II outlines current copyright protections for music and identi- Part II outlines current copyright protections The social utility of music therapy is undertheorized and underex- of music therapy is undertheorized The social utility But music therapy isn’t just any pleasurable or entertaining use of use entertaining or pleasurable just any isn’t music therapy But 3, 6 (Joke Bradt ed., 2013) (“[M]usic therapy goes far beyond distraction and symptom 3, 6 (Joke Bradt ed., 2013) (“[M]usic therapy 15 16 11 12 13 14 DULT UIDELINES FOR EALTH ARE M K whether it be cognitive, behavioral, psychoemotional, or physiological. psychoemotional, be cognitive, behavioral, whether it 2020] 2020] - 2013) (“Inconsistencies regarding the definition of music therapy within research studies con - tinue to persist.”). I consciously elide this distinction. For present purposes, if music interven an tion is applied by a trained and credentialed therapeutic professional, it should qualify for exemption from copyright law. cess, music therapy is a health-focused interaction between client and therapist—notcess, music therapy is a health-focused interaction just any or health-enhancing.”). experience that happens to be positive, beneficial, Gfeller, medicine. (“[M]usic therapists continue to advocate for a clear distinction between music interventions (“[M]usic therapists continue to advocate for (music medicine) and those implemented administered by medical or health care professionals - by trained music therapists (medical music therapy). The continuum of care in music in medi - cal settings ranges from performances for patients by musicians to focused individualized psy chotherapeutic music therapy interventions.”); Claire M. Ghetti, G dence attest to the high social utility of music therapy in helping to heal dence attest to the high social utility the living and to console the dying. different uses of music. Not all fies the various rightsholders who license copyright; but for those that do, there therapeutic uses of music implicate a single rightsholder to license the isn’t a blanket license nor is there be negotiated with separate right- variety of uses. Separate licenses must sholders—and the full right to ex- some of these rightsholders enjoy clude. ments familiar to the client—whichments familiar to tend to be copyrighted. copyright law perspective. This is troubling because plored from a legal is the first to make a clinical discipline. This Article directly impacts this of music. exemption for therapeutic uses case for a statutory A C H And to help a client reach her therapeutic goal, a music therapist must goal, a music therapist her therapeutic a client reach And to help to fit each intervention and the musical the musical selection tailor both client. \\jciprod01\productn\C\CJP\30-1\CJP101.txt credentialed therapist and a client who has a health-focused goal— a health-focused a client who has therapist and credentialed reduction.”); K music. summarizes mounting scientific literature documenting health and well- scientific literature documenting summarizes mounting from clinicians that therapy, along with anecdotes ness benefits of music in action. illustrate music therapy C Y cjp_30-1_42664 Sheet No. 6 Side A 6 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 6 Side B 11/12/2020 09:05:36 M K , , C Y 19 HE IND T in , M , ROM OUT USIC : F [Vol. [Vol. 30:1 M 28-OCT-20 8:34 O Effects of Music T EDICINE M 191, 192 (Penelope Gouk OMPANION Music’s ability to in- OLICY OLICY C P 21 EING ANGE Seq: 4 Seq: 205, 205 (Penelope Gouk et al. RACTICE IN -B R P Music not only stimulates ELL EING 20 UBLIC UBLIC W -B OUTLEDGE P R ELL HE . U.S. 11818, 11821–23 (2001). W T - Scientific research is helping to ex CI IND AND ESEARCH AND in 17 HERAPEUTIC unknown . S , R , M AW AW AND T Imaging studies show that music triggers Imaging studies show that music triggers L CAD S IND AND ’ USIC 18 A L HERAPY , M M ’ T note 18, at 206–07. USIC AT USIC M Approaches to Music, Well-Being and Emotion from Psychology Approaches to Music, Well-Being and Emotion USIC . N . U.S. 3793, 3795 (2019); Stefan Koelsch et al., M CI , M ROC I. . S OURNAL OURNAL OF note 18, at 195. See also Anne J. Blood & Robert J. Zatorre, Intensely J OMPANION TO CAD C , 98 P 179, 184, 187 (Penelope Gouk et al. eds., 2019). 179, 184, 187 (Penelope Gouk et al. eds., 2019). A supra LDRIDGE L 68–69 (1996); Daisy Fancourt, Understanding Music, Mind and Emotion from ’ A OMPANION TO EING AT Heggli et al., supra C ORNELL ORNELL -B AVID . N C OUTLEDGE ILENCE Lamont, See Laura Ferreri et al., Dopamine Modulates the Reward Experiences Elicited by Music D the Brain Ole A. Heggli et al., Please Please Me!: The Pleasure of Music in ELL S R Part III discusses the need for a statutory exemption for therapeutic for therapeutic for a statutory exemption the need Part III discusses It’s likely we’ve all experienced how listening to music can make It’s likely we’ve all experienced how ROC 19 20 21 17 18 W HE T OUTLEDGE tedious and frustrating process. For music therapists, the prospect of li- prospect the therapists, For music process. and frustrating tedious transaction impossibly high of music is an multifarious uses censing the cost. tool—use therapeutic be used as a functional, Music can uses of music. a viable de- fair use is copyright. In theory, be exempt from that should reliable shield. Mu- fair use is too ad hoc to provide a fense; in practice, than fair use more dependable and robust protection sic therapists need carveout. The so- uses of music need a statutory can offer: therapeutic the high transaction of music therapy, coupled with cially valuable uses lost revenue for license songs and the de minimis costs to individually an express carveout uses, fits the model for justifying not licensing the from copyright law. the “reward centers” in our brain, which control the production of the “reward centers” in our brain, dopamine—a feelings of pleasure. feel-good hormone associated with Pleasurable Responses to Music Correlate with Activity in Brain Regions Implicated in Re- Pleasurable Responses to Music Correlate with Activity in Brain Regions Implicated in ward and Emotion eds., 2019) (“Only recently, with the advent of modern neuroimaging techniques, have we eds., 2019) (“Only recently, with the advent mechanisms that are the basis of the pleasure of been able to begin to understand the neural music.”); Alexandra Lamont, in plain why music can elicit both physical and emotional responses from a plain why music can elicit both physical listener. the Modern research techniques offer us new tools to observe effects of music on the brain. et al. eds., 2019) (“Neuroscientific approaches to music and emotion have begun to identify et al. eds., 2019) (“Neuroscientific approaches to music and emotion have begun to identify in which parts of the brain respond to musical stimuli, when an emotional response is detected a piece of music and whether these emotional responses look similar or differentent in listeners.”) (citation omitted). differ- fluence our emotional state by increasing pleasure and reducing stress in fluence our emotional state by increasing AND Studies show that familiar music in particular can activate the brain cen- Studies show that familiar music in ters associated with pleasure and emotions. R \\jciprod01\productn\C\CJP\30-1\CJP101.txt 4 the Perspective of Psychoneuroimmunology OF THE our pulse race and our spirits rise. the brain’s production of dopamine, but it is also shown to reduce the the brain’s production of dopamine, brain’s production of cortisol—a stress hormone. 116 P cjp_30-1_42664 Sheet No. 6 Side B 6 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 7 Side A 11/12/2020 09:05:36 R : 5 in , In 24 RON- The 29 35, 38 HERAPY 25 RACTICE T , 2 F P ARE C USIC USIC THERAPY 28-OCT-20 8:34 M HERAPY , M T EDICAL UUD coupled with the coupled with the M USIC R 26 M VEN DULT 291, 298 (Penelope Gouk et A Seq: 5 Seq: UIDELINES FOR USIC USIC EING G -B M in - below, the con as explored , ELL 22 UIDELINES FOR W RACTICE IN G P As therapists know, “In order to As therapists know, in place preterm babies at great risk of place preterm babies 28 TILITY TILITY OF 27 unknown IND AND Music, Cognition and Well-Being in the Ageing U HERAPY 1 (2010). See also Joy L. Allen, Pain Management , M T Premature Infants USIC USIC Introduction, OCIAL M S M 66, 66 (Joke Bradt ed., 2013). UMANITIES 3, 4–5 (Michelle Hintz ed., 2013); E note 18, at 215 (“The neuroscience of music is, despite its prolifi- note 18, at 215 (“The neuroscience of music supra note 11, at 203–09; Eyre, supra note 13, at 7–8; Fancourt, H , ARE C EALTH H RUSCIA OMPANION TO ocker-Ribaupierre, UIDELINES FOR Music’s power to affect us emotionally and physically us emotionally power to affect Music’s C G . 1, 6–7 (2011). 23 EDIATRIC in P at 67 (“For the infant, premature birth can cause physical and mental trauma. at 67 (“For the infant, premature birth can at 71. at 67 (“This unfamiliar, nonphysiological, highly mechanized environment is often Id. (“[T]he NICU environment remains rather dystopian because of all the mechanical Id. Id. Monika N¨ Id. Heggli et al., supra See id. at 208. See, e.g., B SYCHOL OUTLEDGE The relationship between emotional well-being and physical health emotional well-being and The relationship between P 27 28 29 25 26 22 23 24 EVELOPMENTAL R ERSPECTIVE FROM THE D HE RACTICE IN M K 2020] 2020] with Adults, supra note 17, at 186–87; Susan Hallam, equipment and commotion needed to ensure the survival of the infants staying there.”). chaotic and filled with bright lights and unpredictable noises. This overstimulation causes stress, anxiety, and agitation in the infant.”) (citations omitted). Preterm infants are prematurely withdrawn from the rhythms created biologically (the ca- Preterm infants are prematurely withdrawn breathing, blood flow through the pla- denced sounds produced by their mother’s heartbeat, the closeness of her voice, and her constant centa, etc.), the pace of their mother’s movements, can lead to biophysical and social stress reac- physical and emotional presence. This trauma tions. Because of their developing autonomous nervous system, these infants have decreased - self-protective and self-regulatory abilities. This means that they cannot filter or process harm ful stimuli. As a result, they are extremely vulnerable to sensory stimuli such as noise, touch, and light, including the invasive and painful treatments they need to survive.”) (citations omitted). cacy, a fairly new field. While theories pondering how we understand, perceive and create cacy, a fairly new field. While theories pondering brain imaging methods offering a view into the music probably predate Classical Antiquity, years.”). function brain has only existed for around 40 IN al. eds., 2019); Michelle R. Hintz, suffering developmental problems. suffering developmental deal with these stresses, the infant uses an enormous amount of energy, the infant uses an enormous deal with these stresses, development.” normally invest in his growth and which he would TIERS P Listening on Cortisol Levels and Propofol Consumption During Spinal Anesthesia Listening on Cortisol Levels and Propofol Consumption \\jciprod01\productn\C\CJP\30-1\CJP101.txt A P (Joy Allen ed., 2013) (“Music therapy is applied not only to soothe and relax, but also to (Joy Allen ed., 2013) (“Music therapy is applied and anger. Music therapists in medical settings promote expression of thoughts, fears, grief, as the clinical issues faced by patients and their are trained to address the psychosocial as well with the brain’s perception of pain, reducing families. Music therapy works by interfering endorphins.”) (citations omitted). anxiety, reducing muscle tension, and stimulating turn produces positive physical effects as well. Although the neuros - the Although as well. effects physical positive produces turn new field, music is a relatively cience of is especially important for premature infants, who are “so vulnerable for premature infants, who is especially important their own.” that they cannot survive on physically and emotionally makes it a unique therapeutic tool capable of offering a broad range of of offering a broad tool capable a unique therapeutic makes it wellness benefits—bothhealth and and physiological. psychological nection between a person’s emotional health and her physical health is and her physical emotional health a person’s nection between undeniable. T trauma caused by premature separation from womb trauma caused by stressful environment of the NICU, stressful environment C Y cjp_30-1_42664 Sheet No. 7 Side A 7 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 7 Side B 11/12/2020 09:05:36 M K C Y 33 UIDE- G HERAPY Music T in 30 , [Vol. [Vol. 30:1 USIC 28-OCT-20 8:34 M OLICY OLICY P Moreover, studies have Moreover, Seq: 6 Seq: UIDELINES FOR 32 205, 205, 231 (Joke Bradt ed., G ARE in UBLIC UBLIC , C P 156, 156 (2007); Joanne V. Loewy & Ralph The Effect of Bach’s Magnificat on Emotions, EDIATRIC unknown P AW AW AND L HERAPY T 5, 5 (2011). note 25, at 85 (“The music therapist begins by matching note 25, at 85 (“The music therapist begins Surgical and Procedural Support for Children note 25, at 95. USIC RACTICE IN 15, 15 (Joke Bradt ed., 2013) (citation omitted). supra EDICINE P supra Studies have shown a close correlation between Studies have shown ARE 34 C OURNAL OURNAL OF & M , 44 J. M J HERAPY USIC T EDIATRIC USIC P John F. Mondanaro, at 73 (“Premature infants react to stress-inducing noises with observable and mea- at 73 (“Premature infants react to stress-inducing at 23 (“Clinical experience has shown that acute anxiety usually heightens the pain ORNELL ORNELL M As noted above, music’s ameliorative effect on stress and anxi- As noted above, music’s ameliorative Music, both active music-making and receptive listening, has Music, both active music-making ocker-Ribaupierre, C Exposing preterm infants to music therapy has been shown to has been shown to music therapy preterm infants Exposing ocker-Ribaupierre Prelude to the Special Issue in Music and Medicine: Music Therapy and Supportive 36 35 Joke Bradt, Pain Management with Children Id. See, e.g., Frances H. le Roux et al., See N¨ Id. at 83–84 addi- (“Premature infants may lack coordinated sucking behavior and, in Id. 31 Outside of the NICU, music has also proven to be a powerful tool music has also proven to be Outside of the NICU, 34 35 36 31 32 33 30 RACTICE IN the NICU’s highly mechanized environment, preterm infants can have can infants preterm environment, mechanized highly the NICU’s often se- and they are and even breathing, sleeping, feeding, difficulty environment. effects of the stressful help minimize the dated to 2013); N¨ experience.”). tion, may develop an aversion to oral feeding because of prolonged gavage feeding. Music- tion, may develop an aversion to oral feeding as contingent reinforcement for sucking through reinforced nonnutritive sucking uses lullabies mechanism. . . . The goal is to support the the use of the Pacifier-Activated Lullaby (PAL) the infant in developing his sucking capacities, to increase sucking duration, and to transfer infant’s sucking behavior from nonnutritive to nutritive sucking.”) (citations omitted). surable physiological stress responses. These include reduced oxygen saturation, increased surable physiological stress responses. These in blood pressure, increased excitement and rates of apnea and bradycardia, wide fluctuations premature babies are often treated agitation, crying, and sleep disturbances. Consequently, these effects.”). with sedatives in order to handle and to reduce LINES FOR Spintge, Cancer Care, 3 M can help provide the calm and soothing environment preterm infants environment preterm and soothing provide the calm can help need. reduce irritability and ease respiratory distress. and ease reduce irritability P \\jciprod01\productn\C\CJP\30-1\CJP101.txt 6 been used in clinical settings to reduce stress levels during medical treat- been used in clinical settings to reduce ments. ety is attributed to its ability to slow the brain’s production of cortisol, ety is attributed to its ability to slow for reducing anxiety and managing pain. Effective pain management has and managing pain. Effective pain for reducing anxiety evidence that “un- priority in light of the mounting become a health care negative im- treated pain may have a long-term treated or inadequately and health- immune function, neurophysiology, pact on pain sensitivity, related behaviors.” shown that musical rhythm can help premature infants gain weight faster rhythm can help premature infants shown that musical sucking behavior. develop coordinated and sustained by helping them anxiety and pain, suggesting anxiety often makes the pain experience suggesting anxiety often makes anxiety and pain, worse. the infant’s crying tone, pitch, and intensity vocally with her voice. Here within, she orients the infant’s crying tone, pitch, and intensity the same vocal tone in synchrony with the herself to the infant’s audible breathing by releasing aware of the infant’s emotional expres- infant. The music therapist works by being constantly providing many grand pauses. The therapist may sions and gives the infant time to respond by and develop interactive music behaviors then change her vocal expressions (e.g., into lullabies) with the infant.”) (citation omitted). - Immune, and Endocrine Parameters During Physiotherapy Treatment of Patients with Infec tious Lung Conditions cjp_30-1_42664 Sheet No. 7 Side B 7 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 8 Side A 11/12/2020 09:05:36 , 7 41 , 33 J. URSING . 2858, RONTIERS N ED M 28-OCT-20 8:34 , 2 F ARE LINICAL C Listening to music, Listening , 19 J. C RITICAL Sedative Effects of Mozart’s and sedative drugs and sedative 38 40 Seq: 7 Seq: USIC USIC , 35 C —anxiety that may worsen M 43 The Anxiety- and Pain-Reducing Effects has been shown to reduce a pa- shown to reduce has been - the produc also stimulating while 39 37 , 87 AORN J. 780, 802 (2008); Mar´ıa Dolores , 87 AORN J. 780, 802 (2008); Mar´ıa TILITY TILITY OF unknown , supra note 11, at 48 (“Singing favorite songs can U Children in hospitals often experience Children in hospitals 42 e39, e39, e43 (2013). OCIAL and singing a favorite song can be an effective and singing a favorite Songwriting can also be a creative outlet for Songwriting can S 45 46 . U.S. 3793, 3795 (2019). URSING CI . N . S note 14, at 52 (“Singing involves the client using their voice to reproduce 208, 214 (2001); Ulrica Nilsson, GMT CAD supra note 17, at 184–86; Stefan Koelsch et al., Effects of Music Listening A M L ’ supra note 34, at 15. note 34, at 34 (“Patient familiarity with the selected music is desirable, supra note 34, at 34 (“Patient familiarity with the supra AIN URSING Listening to preferred music helps to refocus the child’s atten- music helps to refocus the child’s Listening to preferred AT at 32 (“Music listening can enable a child to focus on a stimulus different than at 32 (“Music listening can enable a child to at 23 (“For most children, anxiety and fear are the immediate emotional responses at 23 (“For most children, anxiety and fear are N 44 . N . 1, 6–7 (2011). Id. Allen, The Effects of Music on Physiological Responses See, e.g., Boukje M Dijkstra et al., The Effects of Music on Physiological Responses Bradt, experience pain. The continuous See id. at 53 (“Most children who are hospitalized Id. Fancourt, Elicited by Music Laura Ferreri et al., Dopamine Modulates the Reward Experiences Bradt, Pain See, e.g., Marion Good et al., Relaxation and Music to Reduce Postsurgical Music therapy has also been shown to be an effective pain manage- also been shown to be an effective Music therapy has ROC 45 46 41 42 43 44 37 38 39 40 DVANCED SYCHOL M K 2020] 2020] 2858 (2007). A pain. . . . Music is an excellent stimulus for holding one’s attention and directing it away from the pain.”). to be an effective way to help the child shift his focus away from the pain. Allowing the child select the songs gives a sense of control over the environment. Singing songs furthermore - normalizes the sterile hospital environment and gives parents an opportunity to playfully inter act with the child.”). and Sedation Scores in Sedated, Mechanically Ventilated Patients and Sedation Scores in Sedated, Mechanically of pain make hospitalization a stressful fear of painful procedures and the actual experience and even traumatizing event.”). almost impossible to behaviorally distinguish associated with painful stimuli. In fact, it is Clinical experience has shown that acute anxi- between children’s perceived pain and anxiety. ety usually heightens the pain experience.”). - preferred music. It is not unusual for individuals experiencing pain to display shallow breath - ing patterns. Singing can encourage patients to take deep breaths, while regulating their respir as atory rate. The goal of this technique is the self-monitoring of physiological signs of pain, well as increased self-expression.”); Bradt because it provides a sense of security and safety in the chaos and threat caused by the pain.”). because it provides a sense of security and safety tion of dopamine, the body’s feel-good hormone. the body’s tion of dopamine, 1030, 1037–38 (2010); Catherine Paugam-Burtz & Jean Mantz, Symphony Music in the Critically Ill: Enjoy the Hormonal P less necessary. Thus, music therapy offers effective pain management effective pain management therapy offers Thus, music less necessary. overdose, dependency, and of addiction, contraindications without the the opioid crisis. which have typified children. ment technique for \\jciprod01\productn\C\CJP\30-1\CJP101.txt tient’s perceived pain, making pain medication pain, making tient’s perceived tion away from the pain, tion away from the the body’s primary stress hormone, stress primary the body’s of Music Interventions: A Systematic Review Diagnosed with Fibro- Onieva-Zafra et al., Effect of Music as Nursing Intervention for People myalgia, 14 P the pain. anxiety at levels greater than those of adults anxiety at levels greater particularly a familiar musical style, a familiar musical particularly on Cortisol Levels and Propofol Consumption During Spinal Anesthesia on Cortisol Levels and Propofol Consumption 116 P mechanism for shifting a child’s attention to focus on her own voice a child’s attention to focus mechanism for shifting pain. instead of on her C Y cjp_30-1_42664 Sheet No. 8 Side A 8 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 8 Side B 11/12/2020 09:05:36 M K C Y [Vol. [Vol. 30:1 28-OCT-20 8:34 OLICY OLICY P Seq: 8 Seq: UBLIC UBLIC P 49 unknown AW AW AND L supra note 34, at 49 (“Songwriting gives the child the OURNAL OURNAL OF J note 14, at 53 (“Songwriting is a great way to foster the decision-making supra note 14, at 53 (“Songwriting is a great way to supra note 34, at 43 (“Using music-making to actively engage the child with his at 42 (“In contrast to distracting the child’s attention away from the pain, integra- at 49. ORNELL ORNELL Dayla, a five-year-old girl with sickle cell, was hospital- with sickle cell, was five-year-old girl Dayla, a ex- crisis and presented with ized for a vaso-occlusive her came to find me and said that treme pain. Her mother her asking for the music lady since daughter had been the that afternoon. I followed hospitalization earlier I room, to find her in bed crying. mother to Dayla’s This and strummed my guitar. walked up to Dayla a her crying momentarily and offer me caused her to halt I which she continued to sob quietly. faint smile, after my little notebook to see what songs quickly consulted no- previous hospitalizations and Dayla had liked during jungle animals” was ticed that “Old MacDonald” “with of the song, her favorite. I began to hum the beginning with her leg pausing after the first line. Dayla motioned the song and waited as if to say, “Continue.” I continued Dayla said “ele- for Dayla to suggest the first animal. She giggled as phant,” looking at my face for a reaction. minutes, Dayla, her I reacted surprised. Within a few “Old MacDonald,” mom, and I were rocking out on could think of, with naming all the jungle animals we as we sang about Dayla jumping up and down her bed this may have ap- monkeys on the farm. To an outsider, some songs, but peared as the “music lady” just singing singing songs can we witnessed the transformation that bring to a child in extreme pain. id. 48 C The following story illustrates how improvised music-making music-making how improvised story illustrates The following Bradt, Id. Allen, 47 48 49 47 patients to process their feelings about a painful procedure or chronic or procedure a painful about feelings their to process patients pain. surroundings in a playful manner can restore a sense of control, mastery, and even nor- surroundings in a playful manner can restore a sense of control, mastery, and even malcy.”); tion requires the child to come into the body by focusing on the breath, heart rate, emotions, and feeling of pain itself. Thus, in integration the child has an active role in his own pain management rather than being a passive recipient of distraction stimuli.”). process while providing a valuable tool for the exploration of feelings, beliefs, wishes, and process while providing a valuable tool for In acute pain situations, it may be used emotion as well as a tool to encourage communication. stimulus while enhancing a sense of control. as a way to focus the patient on a more pleasant the emotional, social, and spiritual compo- In chronic pain clients, it may be used to address nents of the pain experience.”); Bradt, with a therapist can help a child manage pain and regain a sense of pain and regain a child manage can help with a therapist control. \\jciprod01\productn\C\CJP\30-1\CJP101.txt 8 opportunity to articulate his feelings and direct them into a creative form. It offers the child an opportunity to articulate his feelings and direct them into a creative form. It offers the child avenue for telling his story. This can be powerful for children who have experienced a long journey of painful medical procedures.”) (citation omitted). cjp_30-1_42664 Sheet No. 8 Side B 8 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 9 Side A 11/12/2020 09:05:36 9 supra OMPLE- RACTICE P , 41 C 28-OCT-20 8:34 In essence, XAMPLES OF THE 52 E HEORY AND ASE C : T in , Seq: 9 Seq: HERAPY USIC USIC T M USIC The following story illustrates The following story M 53 helping us recognize and under- us recognize and helping See also Stefan Gebhardt et al., The Effects of 50 TILITY TILITY OF unknown U Focusing on how we react to music can help to music can help on how we react Focusing 11, 11 (Kenneth E. Bruscia ed., 2012) (“Because songs NTRODUCTION TO OCIAL 51 I S N A Introduction: Songs in Psychotherapy in , . 61, 64–66 (2018) (concluding music therapy helps patients acquire ED M SYCHOTHERAPY P supra note 11, at 82. , note 24, at 2 (“[I]nterpretive music therapy helps us to understand our supra note 24, at 2 (“[I]nterpretive music therapy , - Kate E. Gfeller & Michael H. Thaut, Music Therapy in the Treatment of Behav HERAPIES Kari’s psychologist has referred her to an outpatient mu- has referred her to an outpatient Kari’s psychologist at a local mental health center in order sic therapy group greater insights into her irrational to help Kari gain be- social support for changing her thoughts and to gain are many of the clients in this group lief system. Because realistic goals, the music therapist working on setting a song by Billy Joel has chosen to play for the group the emotional ten- named “Pressure.” This song portrays to accomplish more sion that builds up when people try song is played, the than is humanly possible. After the about what the music therapist leads a group discussion lyric analysis); song lyrics mean (in an activity called lyrics to their own group members then relate the song RUSCIA UUD ONGS IN T B Kenneth E. Bruscia, R See S Although music’s efficacy as a pain management tool is a relatively a relatively tool is pain management as a efficacy music’s Although 52 53 50 51 SE OF M K 2020] 2020] bring latent feelings and unconscious attitudes to the fore, so we can to the fore, unconscious attitudes feelings and bring latent effects. them and address their negative begin to understand MENTARY music can be a bridge to the inner self. music can be a bridge ioral-Emotional Disorders stand unrealized emotions. stand unrealized U 209, 234 (William B. Davis et al. eds., 3d ed. 2008) (“Sometimes, people describe music as 209, 234 (William B. Davis et al. eds., 3d ed. or perhaps happy. Music may also bring to sounding like a particular feeling, such as mournful mind particular memories or thoughts.”). \\jciprod01\productn\C\CJP\30-1\CJP101.txt how music can be a therapeutic tool for self-reflection and growth. a therapeutic tool for self-reflection how music can be recent discovery, society has long recognized the power of music to the power of has long recognized society recent discovery, therapy ailments. Music and psychological balm for emotional serve as a vehicle for self-discovery, can be a have such meaning and significance in our lives, they provide an easy access to our emotional have such meaning and significance in our lives, they provide an easy access to our emotional world, and to the thoughts, attitudes, values, and behaviors that emanate from it.”); Eyre, put note 13, at 7 (“One of the most illuminating aspects of music therapy is music’s ability to in a people in touch with their internal positive resources. Music helps clients who are stuck negative space to shift it and to find the source of healing that exists within. The communal re- nature of music allows clients to share the personal benefits of accessing the positive, - sourceful aspects of themselves as they collaborate together, whether this is in a dyadic rela the tionship with the therapist or with peers in a group. Such collaboration addresses intrapersonal and interpersonal needs that are necessary to achieve therapeutic gains in mental health.”). more conscious (i.e., cognitive-related strategies) emotion modulation techniques, whereas pa- more conscious (i.e., cognitive-related strategies) their negative emotions (i.e., non-cognitive tients without music therapy simply “vent” strategies)). Music Therapy on the Interaction of the Self and Emotions—AnMusic Therapy on the Interaction of the Self Interim Analysis individual world with its particular intentionality, our ability to create symbols, and the value individual world with its particular intentionality, and role of autonomy and self-determination.”). C Y cjp_30-1_42664 Sheet No. 9 Side A 9 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 9 Side B 11/12/2020 09:05:36 M K C Y U- U- USIC M M The M 58 [Vol. [Vol. 30:1 28-OCT-20 8:34 Adults and Ado- 54 UIDELINES FOR UIDELINES FOR Song listening G G UIDELINES FOR 56 Music can open Music can open in G in , , 55 in , OLICY OLICY P Seq: 10 Seq: UBLIC UBLIC P 295, 310 (Joy Allen ed., 2013) (“Song ARE C - 263, 271 (Lillian Eyre ed., 2013) (“In lyric analy unknown AW AW AND L 339, 346 (Lillian Eyre ed., 2013) (“Songs are expres- 339, 346 (Lillian Eyre ed., 2013) (“Songs are EDICAL EALTH M H EALTH supra note 55, at 346 (“[S]ongs are powerful tools for music Adults in Palliative Care and Hospice H DULT ENTAL es, Adults with Depression and/or Anxiety A M ENTAL OURNAL OURNAL OF J - song lyric analysis is psychothera In this context, the M 57 RACTICE IN RACTICE IN note 13, at 7 (“The nonverbal nature of music, its rhythmic movement in supra note 13, at 7 (“The nonverbal nature of music, P P ORNELL ORNELL RACTICE IN situations. As Kari joins in on the discussion, she may she may the discussion, in on Kari joins As situations. pres- her own self-imposed some insights into develop can help group members comments of other sures. The struggling the only person that she is not her to realize her to open may help problem; that realization with this she needs support. more easily when up to others C P (“When working at a deeper or unconscious level, the capacity of music to See id. (“When working at a deeper or unconscious Amy Clements-Cort´ note 51, at 229 (citation omitted). note 51, at 229 (citation Gfeller & Thaut, supra Nancy A. Jackson, Eyre, Songs can also be containers for our feelings. Songs can also be HERAPY HERAPY 57 58 54 55 56 T T HERAPY those containers, allowing us to communicate our feelings, break down allowing us to communicate our feelings, those containers, and bring about emotional release. emotional defenses, sis, the client chooses songs, listens to a recording and/or sings them with the therapist, and sis, the client chooses songs, listens to a recording and/or sings them with the therapist, discusses the themes which arise. Lyric Analysis has been shown to be an effective music therapy method used across diverse approaches with abused women. It can be particularly able effective in a group therapy setting where each woman can contribute at the level she is to.”) (citations omitted); Jackson, therapy. In song discussion, clients can interact with songs in order to examine their own therapy. In song discussion, clients can interact with songs in order to examine their own to thoughts and feelings, to reminisce, to communicate, and to problem-solve. Goals related these interactions might include increasing self-awareness around a particular topic, behavioral and pattern, or emotion state; exploring ways of expressing specific emotions; identifying and practicing communication of thoughts and feelings; and working through the thoughts emotions resulting from difficult experiences in one’s life.”); Peggy Tileston, sions of peoples’ thoughts, feelings, relationships, and experiences. They serve as objects sions of peoples’ thoughts, feelings, relationships, and they serve as links to important people, themselves with which we develop relationships, omitted). events, and experiences in our lives.”) (citation peutic rather than purely didactic; the lyrics are analyzed for insights purely didactic; the lyrics are analyzed peutic rather than message. than to assess the songwriter’s about the client rather evoke images, memories, and associations can be of inestimable value in making meaning of evoke images, memories, and associations can where it can be given voice and worked one’s life, bringing past trauma into the present through, and providing solace and healing.”). time, and the fact that it opens people up to the language of feeling and emotions renders it an time, and the fact that it opens people up to the of confusion and circular, stuck, or obsessive organizing force that breaks through the barriers ideas and feelings can challenge destructive thoughts, bringing us to a place where new with little resistance or conscious thought, thoughts and feelings. Yet this is all accomplished natural healing capacities that each of us pos- thus empowering individuals to experience the contact. Because mental health issues are often sesses, but with which we can all so easily lose of empowerment can provide a strong inter- accompanied by stigma and guilt, this experience far beyond the confines of the music therapy nal representation of one’s potential that lasts session.”). (lyric) discussion is an exceptional intervention in assisting clients who are having emotional (lyric) discussion is an exceptional intervention difficult to express or who need help in defining difficulty relating to feelings that may be too understanding within themselves.”); Sandra feelings and emotions they are having difficulty Trauma Lynn Curtis, Women Survivors of Abuse and Developmental T \\jciprod01\productn\C\CJP\30-1\CJP101.txt 10 SIC SIC with lyric discussion can be an effective means to connect with and ex- can be an effective means to connect with lyric discussion press emotions. cjp_30-1_42664 Sheet No. 9 Side B 9 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 10 Side A 11/12/2020 09:05:36 11 11 UIDE- ENTAL G M in , 60 28-OCT-20 8:34 RACTICE IN 59 P HERAPY Seq: 11 Seq: T USIC USIC 559, 574 (Lillian Eyre ed., 2013) M USIC M EALTH Negative emotions and painful H 62 TILITY TILITY OF ENTAL unknown U M Adult Females in Correctional Facilities UIDELINES FOR Music can bring traumatic memories and Music can bring traumatic memories G 61 OCIAL in S , RACTICE IN P HERAPY supra note 13, at 7. T USIC Eyre, John, a client in music therapy, has gone through a dev- has gone through in music therapy, John, a client his lifetime. losses throughout of personal astating series the family. his father abandoned As a child, Later, his and died while he was in high school. mother became ill dif- and young adulthood, he found it In his adolescence establish a comfortable relationship ficult to meet and the music therapist, decided to focus with women. Hal, - session on the topic of relation today’s group therapy the group discussion with Simon ships, and he started de- song, “I Am A Rock,” which and Garfunkel’s classic for is afraid to get close to others scribes a person who tells After the song is finished, John fear of being hurt. just like the singer—thatHal that he feels he, too, is that the person will afraid to get close to others for fear again. The rest of abandon him and he’ll get hurt all over and support. the group then offers [the client] feedback M note 51, at 234 (“[A] music therapist can use the emotional Gfeller & Thaut, supra note 51, at 234 (“[A] music therapist can use Id. Karen Anne Litecky Melendez, See 402, 412 (Lillian Eyre ed., 2013) (“This experience tends to be very popular and 402, 412 (Lillian Eyre ed., 2013) (“This experience Because songs can be strongly associated with memories—bothBecause songs can be strongly associated 59 60 61 62 EALTH M K memories can also be processed through creating a collage of meaningful memories can also be processed through a patient assemble and organize music. The music therapist can help songs—which can be self-created or pre-existing—to a personal form trauma narrative, the patient is able to “trauma narrative.” By sharing her effective with all ages of this [eating disorder] population because it provides an enjoyable and effective with all ages of this [eating disorder] themselves and to begin discussing and process- nonthreatening method for clients to express ing their feelings and experiences.”). emotions to the present, and song lyric discussion can be an effective emotions to the present, and song means to work through the emotions. language of music to help clients become more aware of their feelings and thoughts, or to language of music to help clients become more promote discussion, social interaction, or insights.”) (citations omitted). LINES FOR lescents with Eating Disorders H \\jciprod01\productn\C\CJP\30-1\CJP101.txt (“In this [song listening with lyric discussion] method, patients listen to and discuss how song (“In this [song listening with lyric discussion] method, patients listen to and discuss how song lyrics relate to one’s life. While listening, memories connected to familiar songs are often are reawakened or discovered, triggering an array of emotions. Sometimes these emotions be positive; sometimes they are painful and need a supportive, safe environment to experienced.”). following story illustrates how therapeutic listening and lyric analysis lyric analysis and listening therapeutic how illustrates story following his feelings. with and express a client connect can help pleasurable and painful—listening reawaken memories to a song may and their related emotions. 2020] 2020] C Y cjp_30-1_42664 Sheet No. 10 Side A 10 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 10 Side B 11/12/2020 09:05:36 M K in C Y 65 , RAC- UIDE- The P This G 64 ESEARCH 68 in UIDELINES , R G [Vol. [Vol. 30:1 in HERAPY 28-OCT-20 8:34 The modi- , T 67 66 USIC M OMMUNICATION OLICY OLICY 378, 398 (Lillian Eyre ed., C P Seq: 12 Seq: EALTH 63 21, 55 (Lillian Eyre ed., 2013). H UBLIC UBLIC UIDELINES FOR P G EALTH 502, 515 (Lillian Eyre ed., 2013). ENTAL H in NCYCLOPEDIA OF M EALTH H ENTAL unknown AW AW AND M L SAGE E ENTAL RACTICE IN HE Adolescents with Substance Use Disorders M T P in RACTICE IN P HERAPY 205, 225 (Lillian Eyre ed., 2013) (“It is in the process of organizing 205, 225 (Lillian Eyre ed., 2013) (“It is in the OURNAL OURNAL OF T note 64, at 397 (“The song that can be used as a transitional object in RACTICE IN J P HERAPY USIC EALTH supra T supra note 58, at 435–37 and/or group looks over the lyrics of (“[T]he client M H HERAPY USIC ORNELL ORNELL T This is a highly structured activity where the therapist structured activity where the therapist This is a highly - the client/group and removes particu chooses a song for in lyrics, asking the client(s) to fill lar words from the “El e.g., using the Paul Simon song their own words. out a few words so that the song Condor Pasa,” leaving I rather be a [. . .] than a [. . .]. Yes, would read: “I’d in I surely would.” The clients then fill would, if I could, for the missing lyrics. The structure their own words to express their own provides opportunities for clients success. feelings in familiar songs with immediate M C ENTAL 140–41 (Mike Allen ed., 2017). Andrea McGraw Hunt, Adults with Schizophrenia and Psychotic Disorders Tileston, Dvorkin, Michael L. Zanders, Foster Care Youth, Disorder Janice M. Dvorkin, Adults and Adolescents with Borderline Personality a client is asked to fill-in-the-blank A cloze procedure is a deletion technique where M USIC In addition to lyric analysis and musical collage, lyric modification lyric modification and musical collage, to lyric analysis In addition 66 67 68 63 64 65 M ETHODS UIDELINES FOR fied song would then serve as a transitional object for the client. fied song would then serve as a transitional G An this manner is usually reflective of how the client sees herself, e.g., victim or orphan. - example of a song that is meaningful to many clients with BPD is ‘Maybe,’ from the Broad with their own word choice. This technique is commonly used in the therapeutic process. Shari with their own word choice. This technique is L. DeVeney, Cloze Procedure, gain mastery over her trauma reminders, resolve detrimental avoidant avoidant detrimental resolve reminders, trauma over her mastery gain coping skills. and develop healthy behaviors, 2013); Katrina Skewes McFerran, M A client with an eating disorder, for example, could modify the lyrics of A client with an eating disorder, for relationship. a song about being trapped in a dysfunctional to remove words from a familiar song and invite the client to substitute invite the client to song and words from a familiar to remove her own words: \\jciprod01\productn\C\CJP\30-1\CJP101.txt 12 FOR can be a powerful way to process negative emotions and to heal. emotions and to process negative powerful way to can be a LINES FOR songs that the client’s personal biography or narrative emerges. The therapist can work with songs that the client’s personal biography or to create the narrative, including both self- the client on as many parts of the collage as needed a personal story that may be trauma-based can composed and borrowed songs. The sharing of sharing is critical for the client for three main be referred to as a trauma narrative, and this trauma reminders, (b) resolves avoidant symp- reasons. The client: (a) gains mastery over the toms, and (c) enhances healthy coping skills.”). TICE IN following story illustrates how a therapist can use a “cloze procedure” how a therapist can story illustrates following several songs about eating disorders, and then, with the help of the therapist, writes a song several songs about eating disorders, and then, with the help of the therapist, writes a song using their own lyrics. The aim of the song is to help clients to disidentify with their eating that disorder, seeing it as a part of themselves but not all of who they are. . . . Find a song that illustrates being trapped by the ED or caught in a dysfunctional relationship, and one the illustrates breaking free. . . . Have lyrics sheets to pass out, and a method of playing songs.”). cjp_30-1_42664 Sheet No. 10 Side B 10 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 11 Side A 11/12/2020 09:05:36 13 13 UIDELINES G HERAPY FOR in T 28-OCT-20 8:34 USIC M Seq: 13 Seq: Moreover, a public per- Moreover, USIC USIC 70 XAMPLES OF M E 55, 56 (Kenneth E. Bruscia ed., 2012) , supra note 1, and accompanying text. ASE 477, 503 (Joke Bradt ed., 2013) (“Music Thus, music can be an important Thus, music can C Music allows us to express what Music allows us 74 73 ARE EDER in ROBLEMS , C Crossing the Divide: Exploring Identities Within Crossing the Divide: Exploring Identities Within P TILITY TILITY OF unknown U 72 EDIATRIC P EHAVIORAL OCIAL S B A public performance can help connect a client A public performance 71 RACTICE IN supra note 11, at 85. P MOTIONAL OR supra note 1, at 42; see also F note 14, at 190 (“Capturing the outcomes of the creative music process supra note 14, at 190 (“Capturing the outcomes of E HERAPY 69 Bruscia, at 396 (“The therapist chooses a song that the client and therapist sing together, at 396 (“The therapist chooses a song that the T , See also Christine Neugebauer, Children in General Inpatient Care Sunelle Fouche & Kerryn Torrance, See Gfeller & Thaut, supra note 51, at 234 (“Because music is an emotional language that Gfeller, Ghetti, Id. USIC Not only can music help us connect with our emotional selves, it help us connect with our emotional Not only can music After a song’s lyrics are modified, sometimes the revised song will the revised song sometimes lyrics are modified, After a song’s 71 72 73 74 70 69 M HILDREN WITH M K expressive vehicle for those with communication difficulties. For pa- for those with communication expressive vehicle disease, for severe dementia caused by Alzheimer’s tients suffering from forms of communi- provide a connection when other example, music can Communities Fragmented by Gang Violence elicits thoughts and feelings, it can be a powerful tool toward increasing emotional expression elicits thoughts and feelings, it can be a powerful tool toward increasing emotional expression and self-awareness.”). and then the therapist guides the client to improvise new lyrics that describe the client’s emo- and then the therapist guides the client to improvise related to abandonment. The client uses this song tions and significant aspects of her inner life transitional object to reduce anxiety when the similarly to how a two-year-old might use a represents the safe feeling of being with a caretaker is not there. The transitional object caretaker.”). formance of the modified song may also offer an opportunity for growth song may also offer an opportunity formance of the modified and self-expression. video creation is a process, including planning, decision-making, and designing, that uses tech- video creation is a process, including planning, video composition that conceptualizes one’s nology and media to create an original music . . . It is important that the music therapist be thoughts and emotions into a contained product. use of recorded music and how these laws apply up to date regarding copyright laws and legal to music therapy practice.”). C . While I prefer for the client to choose the song, this particular song di- way musical Annie. While I prefer for the client to choose the has for parental support that will meet her rectly addresses the longing that a BPD person emotional needs.”). \\jciprod01\productn\C\CJP\30-1\CJP101.txt our own words and actions fail to say. our own words and (“[C]lients often moved between the private arena of the music therapy room and the public (“[C]lients often moved between the private arena of the music therapy room and the public arena . . . which affords opportunities for concerts and ‘showing off’ developing talent[, - which] provide different, but equally important, opportunities for the development of individ ual and group identities.”). new song, much like a security blanket, becomes a source of comfort for of comfort a source becomes blanket, security like a song, much new the client. can also help us connect with others. can also help us connect be recorded or performed in front of others. Recording the creative prod- Recording the creative front of others. or performed in be recorded and as an validation emotional as therapeutically-important uct can serve revisit for support. the client can artifact that FOR 2020] 2020] with her physical environment. with her physical through audio or video recording enables the child to retain and re-experience the benefits of through audio or video recording enables the upon which the child and family can draw that process. The recording becomes a resource . . . The recording process and final product during future times of challenge or celebration. of an expressive outlet, validation of emo- offer a number of benefits, including development choice-making, empowerment, increased tions and self-worth, improved self-esteem, increased a long-term goal, and improved social connec- attention span, improved follow-through with tivity.”). C Y cjp_30-1_42664 Sheet No. 11 Side A 11 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 11 Side B 11/12/2020 09:05:36 M K C Y The The 75 UIDELINES [Vol. [Vol. 30:1 28-OCT-20 8:34 , in G OLICY OLICY P Seq: 14 Seq: at 327–29, 331. UBLIC UBLIC 77 Id. P 324, 324 (Joke Bradt ed., 2013) (“Provid- ARE C 76 unknown AW AW AND L EDIATRIC P Palliative and End-of-Life Care for Children A total approach to palliative care is one that aims A total approach to palliative care 78 OURNAL OURNAL OF J RACTICE IN P supra note 3, at 14–15. at 350 (“Whether it is sharing receptive music therapy methods such as , LAIR HERAPY C ORNELL ORNELL at 15 (“Mrs. Jackson can still enter into some level of participation with others at 15 (“Mrs. Jackson can still enter into some at 325 (“Palliative care for children and young people is an active and total ap- at 14–15. T A four-year-old girl with a terminal brain tumor was A four-year-old girl with a terminal life. It was difficult quite lethargic the last month of her and the nurse and to arouse her to engage in any way, girl was no longer social worker reported that this little during most of the moving her arms or legs and slept Mrs. Jackson has late-stage dementia. She has not spo- dementia. She has late-stage Mrs. Jackson because of no longer walk years, and can ken in several the disease. Although Mrs. Jackson the progression of a make vocal sounds, she does make generally does not specific points each time a certain song vocal response at provided by the family members is sung to her. History song is familiar and that she enjoyed indicates that the her life. Mrs. Jackson makes ongoing singing it early in even though she can no longer match attempts to sing, the lyrics. the pitches or articulate C The following story illustrates how music therapy can be used to The following story illustrates how Id. See Id. Id. Kathryn Lindenfelser, 79 USIC Music’s unique ability to provide comfort and create lasting memo- to provide comfort and create Music’s unique ability 79 75 76 77 78 M FOR proach to care. It consists of managing pain and symptoms, offering emotional and spiritual proach to care. It consists of managing pain and symptoms, offering emotional and spiritual support, providing respite (restful) care, and supporting the family through bereavement.”). Care becomes palliative when the aim is no longer curative. When facing the end of life, both the patient and the family need comfort and support. because the structure of the familiar song makes it possible for her to use residual abilities in because the structure of the familiar song makes and melodic context. The music provides the order to respond vocally, and do so in a rhythmic and to be socially integrated. Most of all, opportunity to interact meaningfully with others isolation of degenerative disease, if only for a music makes it possible for her to escape the short time.”). cation, such as words or body language, cannot be understood. cannot language, or body as words such cation, ing music therapy for children or adolescents diagnosed with a life-limiting condition and their ing music therapy for children or adolescents of the situation, enhancing communication and families can be a way of altering the perception - expression, improving the child’s physical state, and fostering positive experiences.”) (cita tions omitted); id. listening to a favorite song together or discussing the meaning of the lyrics to create a song - that expresses the challenges and joys faced by children or teens receiving palliative or end-of of life care and by their siblings or parents, music therapy is a means to altering the perception the horrendous reality that these families face as it brings joy, relief, and happiness.”). engage and comfort those nearing the end. engage and comfort those nearing following story illustrates how music can promote meaningful interac- promote meaningful how music can story illustrates following words are unavailable: tions when \\jciprod01\productn\C\CJP\30-1\CJP101.txt 14 ries is particularly meaningful for families of young children facing life- meaningful for families of young ries is particularly limiting conditions. to provide both physical and emotional comfort to patient and family to provide both physical and emotional alike. cjp_30-1_42664 Sheet No. 11 Side B 11 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 12 Side A 11/12/2020 09:05:36 15 15 28-OCT-20 8:34 Seq: 15 Seq: As music therapist Jenny USIC USIC 84 M 80 TILITY TILITY OF unknown U note 10, 359–60. OCIAL S 81 supra note 58, at 307 (“Music for reminiscence is concerned with 83 During musical improvisation and songwriting with a and songwriting with During musical improvisation re- whose one-year old brother was four-year-old child con- care services due to a rare genetic ceiving palliative you sang, “I’ll be so sad when dition, the four-year-old you go to heaven.” His mother cried die and I hope that un- realize the four-year-old had an and said she didn’t his around what was happening to derstanding or beliefs not something they had previously brother, as this was talked about. Emily was a 6-year-old female with an inoperable brain Emily was a 6-year-old female with progression. Mu- tumor, no longer active due to disease with her younger sic therapy provided sessions for Emily Emily preferred quiet sibling and other family members. her diagnosis, but voices and low stimulation due to around her. She wanted to sing and have everyone her favorite song for gained great comfort by singing sing her favorite others and having her family repeatedly providing group ses- song to her. In addition to comfort, also helped cre- sions and a recording of Emily singing younger sister and ate positive memories for Emily’s family. day. However, during music therapy the little girl ex- the little therapy music during However, day. arms to play her legs and and would swing erted herself and giggle half-hour session, stay awake for a the drum, music therapy. throughout 82 Id. at 333. Id. Id. at 328 (“Providing opportunities for children to leave a legacy may be empowering Walker & Adamek, supra Clements-Cort´es, At the end of life, creating a musical, life-in-review collage can be a At the end of life, creating a musical, 80 81 82 83 84 M K at the end of life. Music therapists have the unique ability to assist with this, as it is through the at the end of life. Music therapists have the unique ability to assist with this, as it is through creation of videos, songs, journals, and pictures that children and families are able to create - memories together that continue the child’s legacy. Such projects provide an outlet for expres sion and intimacy at the end of life.”) (citations omitted). The above story illustrates how group sing-alongs can bring comfort to The above story illustrates how group positive lasting memories. And, when both patient and family and create serve as a legacy gift for friends and recorded, the musical artifact can family. This next story illustrates how improvisational music-making can help music-making how improvisational story illustrates This next expression to unstated emotions. family members give \\jciprod01\productn\C\CJP\30-1\CJP101.txt meaningful way to process difficult emotions. meaningful way to process difficult 2020] 2020] helping clients use music to retrieve memories and to help bring them to life to recount in the helping clients use music to retrieve memories and to help bring them to life to recount in C Y cjp_30-1_42664 Sheet No. 12 Side A 12 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 12 Side B 11/12/2020 09:05:36 R M K C Y UIDE- SE OF G U in , [Vol. [Vol. 30:1 28-OCT-20 8:34 XAMPLES OF THE OLICY OLICY E P ASE Seq: 16 Seq: 88 C 718, 752 (Lillian Eyre ed., 2013). in UBLIC UBLIC , P EALTH H ENTAL unknown AW AW AND And a legacy gift can be a deep comfort gift can be a And a legacy M L 86 RACTICE IN P 152, 160 (Kenneth E. Bruscia ed., 2012) (“When working with 152, 160 (Kenneth E. Bruscia ed., 2012) (“When note 58, at 307 (“[A musical life review] is also a valuable supra note 58, at 307 (“[A musical life review] is note 58, at 309 (“When clients are diagnosed with a terminal supra note 58, at 309 (“When clients are diagnosed OURNAL OURNAL OF J Music therapist Laurel Young explains the compilation explains the Laurel Young Music therapist HERAPY 87 supra note 55, at 369 (“Musical audiobiography is a compositional approach T supra note 84, at 152. USIC - can be a meaning a musical collage of compiling The process ORNELL ORNELL SYCHOTHERAPY 85 The music therapist compiles and arranges a collage compiles and arranges a collage The music therapist or recordings that are significant (collection) of music client. This may include recordings meaningful for the ses- the client’s own music therapy of live music from - recorded selections, or a combina sions, commercially to The main goals for the client are tion of both. . . . review process, increase cognitive participate in a life - a sense of identity, increase crea stimulation, maintain a increase self-esteem, and create tive self-expression, with loved ones. forum for interaction M C P note 55, at 371 (“For example, topics like ‘my most important relationship,’ supra note 55, at 371 (“For example, topics like ‘my Clements-Cort´es, Clements-Cort´es, Laurel Young, Persons with Alzheimer’s Disease and Other Dementias Martin, Clements-Cort´es, 87 88 85 86 ONGS IN See also Jackson, - that involves an individual client selecting and compiling music and sounds into a music prod life uct that reflects an important aspect of or important events and experiences in the client’s - related to treatment issues. Prerecorded music and sound, recordings of the client’s perform ance of precomposed or original music, recordings of improvisations from the client’s therapy sessions, and client’s recordings of other sounds can all be used as material for the final product.”). LINES FOR illness, a large amount of their autonomy is lost. Song choice can be a way to regain control illness, a large amount of their autonomy is Song choice may also be a way to introduce and assist the client in expressing their emotions. to other music therapy interventions, such as the client to music therapy and act as an avenue musical life review, and active music-making.”); music for reminiscence, music for relaxation, Jackson, myself that I like the best’ can be helpful in ‘the best day of my life,’ or ‘the thing about attributes, and experiences that can bol- assisting the client in focusing on personal strengths, Compile the recording into a mini-album ster coping skills and increase feelings of self-worth. for the client.”). Martin notes: “Dying is never easy, neither for the dying person nor their person nor dying for the neither is never easy, “Dying notes: Martin family.” someone who is dying, an important goal is to help someone to bring their life to a close. One someone who is dying, an important goal is to engage in the life review process, to look back way to do this is to encourage the patient to ability to evoke memories, can play a key role in over their life. Music because of its uncanny this process.”). S therapy setting. Music therapists require experience with choosing appropriate repertoire and therapy setting. Music therapists require experience using this technique with palliative patients. require training in clinical counseling skills before serious issues to the surface for clients dealing Music for reminiscence may bring numerous need to be aware of all counseling issues associ- with a terminal illness, and music therapists this technique without supervision.”); ated with this level of therapy before implementing Jenny A. Martin, Music Therapy at the End of a Life \\jciprod01\productn\C\CJP\30-1\CJP101.txt 16 ful outlet for the dying person. ful outlet process: for the family. way to help family members remember their loved one and potentially record some type of way to help family members remember their loved one and potentially record some type legacy gift to assist in the grieving process.”). cjp_30-1_42664 Sheet No. 12 Side B 12 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 13 Side A 11/12/2020 09:05:36 17 17 . 1459, EV RACTICE IN XAMPLES OF 89 P E 28-OCT-20 8:34 Rewriting Fair . L. R ASE LL C HERAPY in supra note 11, at 128 . (Sept. 2009), https:// T , , AG Some uses of mu- USIC 91 , 2008 U. I M RUSCIA Seq: 17 Seq: B USIC USIC ICENSING M L See USIC UIDELINES FOR G TILITY TILITY OF & M in unknown U 90 235, 235 (Kenneth E. Bruscia ed., 2012). OCIAL S OPYRIGHT C SYCHOTHERAPY II. P Feeling Groovy – Music Therapy, WIPO M 290, 313 (Joke Bradt ed., 2013) (“Children and adolescents can create their 290, 313 (Joke Bradt ed., 2013) (“Children The next Part discusses copyright law and music licensing. The next Part discusses copyright ONGS IN The law of music copyright is particularly intricate. This Part The law of music copyright is particularly 92 ARE S 93 C Through her choice of songs, she was able to gain in- she was able her choice of songs, Through process, and during the dying her own feelings sight into the pain of worked through to them, she by listening A songbook and tape of these leaving her husband. husband with a last gift of her love. songs provided her While music therapy scholars identify four types of music experiences, for present While music therapy scholars identify four Jo Bowman, Edward Lee, Warming Up to User-Generated Content Jane Whittall, Songs in Palliative Care: A Spouse’s Last Gift Beth Dun, Children with Cancer, The complexity of copyright law is reputed to rival that of the U.S. The complexity of copyright law is Much more can be said of the value and application of music as a said of the value and application Much more can be SE OF 91 92 93 89 90 U EDIATRIC M K will briefly outline some of the legal and practical complexity of copy- will briefly outline some of the legal www.wipo.int/wipo_magazine/en/2009/05/article_0008.html (“In [music therapy] sessions where patients change an existing musical work in some way, permission needs to have been no granted by the copyright holder of that music. If it is Mozart, you are in the clear as it is longer copyright protected. If it is Oasis, you need to ask first or risk breaching copyright.”). 1539 (2008) (arguing copyright offers poor ex ante guidance and “[t]his inherent uncertainty 1539 (2008) (arguing copyright offers poor ex ante guidance and “[t]his inherent uncertainty makes the Copyright Act even worse than the Tax Code”); Michael J. Madison, purposes, I identify two types: receptive and creative. own music artifacts, such as CD or video products, or record their musical creations, which own music artifacts, such as CD or video products, can assist in decreasing anxiety and increase may include their singing voices. These artifacts for family members.”) (citations omitted). positive coping while also becoming mementos THE (describing the four main types of music experiences as “improvising, re-creating, composing, (describing the four main types of music experiences as “improvising, re-creating, composing, and listening”). P These musical audiobiographies are often recorded and shared as a me- are often recorded These musical audiobiographies and family. mento with friends \\jciprod01\productn\C\CJP\30-1\CJP101.txt The story of a 42-year-old woman with terminal cancer illustrates the illustrates cancer terminal with woman a 42-year-old story of The gift for a loved one: leaving a legacy value of tax code. therapeutic tool; the foregoing is not intended to be an exhaustive recita- foregoing is not intended to be an therapeutic tool; the therapy. The focus and introduction to music tion, but rather a foundation law on this clinical the potential impact of copyright of this Article is on interven- the extent to which some of the therapeutic field. It is unclear care facility to open the patient, therapist, or health tions outlined above of music include both the receptive copyright liability. Therapeutic uses music-making). (i.e., listening) and creative (i.e., 2020] 2020] sic—like original songwriting or improvisation—do the not implicate uses—likerights of others. But other therapeutic legacy recordings, lyric music—maymodifications, or performing popular trigger the copyright derivatives, and public per- holder’s exclusive rights to reproduction, formance. C Y cjp_30-1_42664 Sheet No. 13 Side A 13 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 13 Side B 11/12/2020 09:05:36 M K C Y , 30 and 96 [Vol. [Vol. 30:1 28-OCT-20 8:34 For registered 98 . L.J. 391, 396 (2005) NT OLICY OLICY P & E Seq: 18 Seq: RTS A UBLIC UBLIC § 7.0.1 (3d ed. 2020) (“Strict liability § P ARDOZO OPYRIGHT C unknown , 23 C AW AW AND L Mere ownership of a CD or a book does Mere ownership The innocent infringer is also liable for The innocent infringer is also liable 94 100 17 U.S.C. § 412 (prohibiting recovery of statutory See also 17 U.S.C. § subject to certain statutory exemptions subject to certain OLDSTEIN ON 95 , G —but may reduce those damages, though the court OURNAL OURNAL OF 101 J 133, 133 (2007) (“[I]nnocent infringers are just as liable as those who OLDSTEIN RTS Copyright infringement is a strict liability offense, which is a strict liability offense, Copyright infringement G 97 ORNELL ORNELL AUL C A willful infringer can be liable for statutory damages up to can be liable for statutory damages A willful infringer 17 U.S.C. §§ 504-505. 17 U.S.C. §§ 504(c)(2) (“In a case where the copyright owner sustains the burden of 17 U.S.C. § R. Anthony Reese, Innocent Infringement in U.S. Copyright Law: A History 17 U.S.C. § 202 (2018) (“Ownership of a copyright, or of any of the exclusive rights 202 (2018) (“Ownership of a copyright, or of any of 17 U.S.C. § (1) to reproduce the copyrighted work in By statute, these rights include the following: 110(4) (non-profit public performances). E.g., 17 U.S.C. § 107 (fair use). E.g., 17 U.S.C. § 2 P . J.L. & A Copyright represents certain intangible interests in a work, which in a work, intangible interests represents certain Copyright 99 99 94 95 96 97 98 100 101 OLUM (“the complexity of the copyright statute already compares unfavorably to the tax code”). (“the complexity of the copyright statute already limitations. not transfer any ownership interest in the copyright to the CD or book. interest in the copyright not transfer any ownership work with a law provides the creator of an original Rather, copyright from various uses rights (i.e., rights to exclude others bundle of exclusive of the creator’s work), - proving, and the court finds, that infringement was committed willfully, the court in its discre tion may increase the award of statutory damages to a sum of not more than $150,000.”). C under a copyright, is distinct from ownership of any material object in which the work is under a copyright, is distinct from ownership embodied.”). on the original material; (3) to distribute copies copies; (2) to prepare derivative works based (5) to display their work publicly; and (6) for of their work; (4) to perform their work publicly; by means of a digital audio transmission. 17 sound recordings, to perform their work publicly 106. U.S.C. § right protection for music and music licensing. Part III will discuss why discuss Part III will music licensing. and for music protection right a statu- and, thus, why uses is impractical music for therapeutic licensing is warranted. uses of music for therapeutic tory exemption of the physical embodiment ownership of and apart from exist separate or book. the work, like a CD $150,000 per infringement. Use and the Future of Copyright Reform \\jciprod01\productn\C\CJP\30-1\CJP101.txt 18 is the rule in copyright cases, and the defendant who copies protected expression from a copy- is the rule in copyright cases, and the defendant innocence.”). righted work will be liable regardless of his statutory damages means an individual can be liable to the copyright holder even if they do can be liable to the copyright holder means an individual or even know that they infringed. not intend to infringe, works, a copyright owner is eligible for statutory damages and attorney’s owner is eligible for statutory damages works, a copyright fees. infringe knowingly or recklessly.”). damages and attorney’s fees for preregistration infringement, “unless such registration is made damages and attorney’s fees for preregistration infringement, “unless such registration is made within three months after the first publication of the work”); S. Credentialing Support Servs., L.L.C. v. Hammond Surgical Hosp., L.L.C., 946 F.3d 780, 785–87 (5th Cir. 2020) (holding preregistration infringement barred statutory damages for post-registration infringement). cjp_30-1_42664 Sheet No. 13 Side B 13 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 14 Side A 11/12/2020 09:05:36 19 19 . U. supra 103 TAN S Fair use SE 28-OCT-20 8:34 106 U may reduce the AIR . L.J. 47, 54 (2012) See also Sag, T S & F HIO . 549, 617 (2008) (finding 99% Seq: 19 Seq: USIC USIC OPYRIGHT EV M , C . L. R A In addition to statutory damages, the damages, statutory to In addition TILITY TILITY OF unknown 102 , 156 U. P U Whether a fair use defense will succeed Whether a fair use See also Barton Beebe, An Empirical Study of U.S. 105 Also, a plaintiff will not prevail even though even though will not prevail Also, a plaintiff OCIAL As a general matter, the more “transformative” As a general matter, S 104 107 at 579 (asserting that transformative works “lie at the heart of the fair use doc- at 579 (asserting that transformative works On the other hand, the more the defendant’s work competes On the other hand, the more the 109 Id. Campbell, 510 U.S. at 590 (noting that market harm analysis “must take account not 17 U.S.C. § 505. 17 U.S.C. § copy- 106(4) (the copyright owner has the exclusive right to perform the 17 U.S.C. § fair use of a copyrighted work . . . is not an infringe- 107 (2018) (“[T]he 17 U.S.C. § , 73 O Id. See generally Matthew Sag, Predicting Fair Use 569, 577 (1994) (noting fair See, e.g., Campbell v. Acuff-Rose Music, Inc., 510 U.S. 17 U.S.C. § 504(c)(2) (“In a case where the infringer sustains the burden of proving, 17 U.S.C. § 108 But not all uses of music require permission. For example, original For example, original require permission. uses of music But not all / (last visited July 4, 2020) ., https://fairuse.stanford.edu/overview/public-domain/welcome 109 103 104 105 106 107 108 102 IBR M K Copyright Fair Use Opinions, 1978–2005 trine’s guarantee of breathing space within the confines of copyright”). trine’s guarantee of breathing space within the of the note 106, at 55 (“According to Campbell, transformativeness not only occupies the core fair use doctrine but also reduces the importance of all other factors such that ‘the more trans- formative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.’”) (footnote omitted). only of harm to the original but also of harm to the market for derivative works[,]”in addition the it must consider “whether unrestricted and widespread conduct of the sort engaged in by the defendant would . . . result in a substantially adverse impact on the potential market for original”) (internal quotations omitted). righted work publicly); Welcome to the Public Domain ment of copyright.”). use “calls for case-by-case analysis”). and the court finds, that such infringer was not aware and had no reason to believe that his or and the court finds, that such infringer was not the court in its discretion her acts constituted an infringement of copyright, less than $200.”) (emphasis added). Note that award of statutory damages to a sum of not only if the work was registered (1) before statutory damages and attorney’s fees are available 412. days of first publication. 17 U.S.C. § the infringement commenced or (2) within 90 (“Anyone can use a public domain work without obtaining permission . . . .”). (“Anyone can use a public domain work without L her copyrighted work was used without permission, if the defendant can if the defendant used without permission, work was her copyrighted “fair” one. prove her use is a \\jciprod01\productn\C\CJP\30-1\CJP101.txt not below $200 per infringement. $200 not below depends on consideration of four statutory factors: (1) the purpose and of four statutory factors: depends on consideration the plaintiff’s copy- use; (2) the nature of character of the defendant’s the portion used in the amount and substantiality of righted work; (3) effect the use has work as a whole; and (4) the relation to the copyrighted work. for or value of the copyrighted on the potential market music performed by the copyright holder and music in the public domain music in the public holder and by the copyright music performed a license. do not require (noting “these four factors were not intended to be exclusive, nor were they intended to be so (noting “these four factors were not intended the doctrine”). specific as to freeze judicial development of is not a bright-line, safe harbor. Rather, the fair use analysis is considered safe harbor. Rather, the fair use analysis is not a bright-line, on a use-by-use basis. correlation between market harm and no fair use: “of the 141 opinions that found that factor correlation between market harm and no fair use: “of the 141 opinions that found that factor four disfavored fair use, 140 found no fair use”). court may also award a prevailing party costs and attorney’s fees. and attorney’s party costs also award a prevailing court may with a licensable use of the copyrighted work, the more likely it is not a with a licensable use of the copyrighted fair use. 2020] 2020] the defendant’s work is, the more likely it is a fair use of the copyrighted is, the more likely it is a fair use the defendant’s work work. C Y cjp_30-1_42664 Sheet No. 14 Side A 14 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 14 Side B 11/12/2020 09:05:36 M K , , C Y UB- OHN , P OUNSEL . C [Vol. [Vol. 30:1 EN 28-OCT-20 8:34 G NTERTAINMENT Indeed, in most E 18 (2015), http://copy- 113 OLICY OLICY P FFICE OF THE Seq: 20 Seq: INDEY ON ARKETPLACE A sound recording, on the A sound recording, UBLIC UBLIC , 4 L M P 111 See also O USIC ANDAU M L In many instances, however, these In many instances, unknown 112 AW AW AND L ICHAEL & M Figure 1 below illustrates the two separate copy- Figure 1 below illustrates the two OPYRIGHT AND THE INDEY 115 L , C OURNAL OURNAL OF J § 8:51 (3d ed.), Westlaw (database updated Dec. 2019) (“The sound § FFICE RTS O The musical composition is the words and melody of the is the words and melody The musical composition A LEXANDER 110 Rather the rights are typically assigned by the songwriter to are typically assigned by the songwriter Rather the rights A ORNELL ORNELL THE C 114 Note that things get complicated when two or more creators own the copyright. K See id. at 79–80. Id. at 269. See id. at 87. See 17 U.S.C. § 102(a)(2) (2018) (“musical works, including any accompanying words”); 102(a)(2) (2018) (“musical works, including 17 U.S.C. § & OPYRIGHT To better understand the challenge facing music therapists (many of (many therapists music facing challenge the understand To better 111 112 113 114 115 110 other hand, is created by a performer (i.e., a recording artist) who fixes by a performer (i.e., a recording other hand, is created MP3 file. A singer- medium like a tape, CD, or the sounds in a tangible the musical compo- of course, hold copyrights in both songwriter could, recording. sition and the sound U.S. C LISHING 17 U.S.C. § 102(a)(7) (2018) (“sound recordings”). 17 U.S.C. § supra note 3, at 267. rightable works in music and the typical rightsholders. rightable works in music and the typical \\jciprod01\productn\C\CJP\30-1\CJP101.txt 20 (“A musical right.gov/policy/musiclicensingstudy/copyright-and-the-music-marketplace.pdf in work can be in the form of sheet music, i.e., notes and lyrics written on a page, or embodied comprises the fixed sounds a phonorecord, i.e., in a recording of the song. A sound recording and sound recording are separately protected, that make up the recording. The musical work and can be separately owned, under copyright law.”) (footnote omitted). recording copyright is owned by the record label. The copyright in the musical work itself is recording copyright is owned by the record label. The copyright in the musical work itself owned by the music publisher, which grants the record label a ‘mechanical’ license to record and distribute the song as part of the record.”). copyrights are not held by the same person or entity. copyrights are not the music publisher (in the case of the musical composition) and by the the music publisher (in the case of case of the sound recording) in ex- performer to the record label (in the change for royalties. instances the copyrights aren’t even held by the songwriter or per- aren’t even held by the instances the copyrights former. song. To keep things simple, we’ll say the musical composition is cre- simple, we’ll say the musical song. To keep things (i.e., a composer). ated by a songwriter whom are not also copyright lawyers) as they try to understand whether try to understand lawyers) as they not also copyright whom are of license a song, what sort particular use of a license for their they need to explore license, it is useful getting that and how to go about they need, pro- For music, copyright by copyright. interests protected the various the sound and (2) the musical composition distinct works: (1) tects two recording. cjp_30-1_42664 Sheet No. 14 Side B 14 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 15 Side A 11/12/2020 09:05:36 21 21 28-OCT-20 8:34

Assigned to Assigned to record label .

music publisher music publisher Dealing with Overlapping Seq: 21 Seq: USIC USIC M . 547, 574 (1997) (noting a license to performer Created by songwriter Created by EV Mark A. Lemley, - A performance is “public” if it oc L. R Cf. TILITY TILITY OF 119 unknown U 79, 79–80 (2003). AYTON RTS OCIAL YPICAL RIGHTSHOLDERS OF MUSIC S

Sound

Musical

recording

composition composition brevity, we’ll focus on the rights For the sake of . J.L. & A 1: T 116 OLUM The performance right is the exclusive right to perform The performance right is the exclusive Id. In 2014, the Supreme Court held a service that streamed broadcast tele- IGURE F 118 The reproduction right is the exclusive right to make copies right is the exclusive right to make The reproduction 17 U.S.C. § 101, but this distinction is not important for present purposes. In 101, but this distinction is not see 17 U.S.C. § 117 Examples of places courts have held to be “semi-public” for Examples of places courts have 17 U.S.C. § 106(1). Technically, there is a distinction between “copies” and “pho- 17 U.S.C. § ‘publicly’”).101 (defining “[t]o perform or display a work 17 U.S.C. § It is also a See, e.g., Daniel Cantor, How Many Guests May Attend a Wedding Reception Before 17 U.S.C. § 106 (2018). 17 U.S.C. § is also relevant, but to minimize con- The exclusive right to prepare derivative works 120

music As noted above, copyright gives the creator a number of exclusive gives the creator a number As noted above, copyright 118 119 120 Copyright in Copyright 116 117 M K the work “at a place open to the public or at any place where a substan- the work “at a place open to the public a normal circle of a family and its tial number of persons outside of social acquaintances is gathered.” reproduce a work by email “presumably includes by implication” the right to distribute the reproduce a work by email “presumably includes work by email). Copyrights on the Internet, 22 U. D norecords,” this article, “copies” includes both terms. or public performance to “transmit” a performance of the work to the public or to a public semi-public place. vision programming to its subscribers over the Internet publicly performed the copyrighted works. Am. Broad. Cos. v. Aereo, Inc., 573 U.S. 431, 436 (2014). 17 ASCAP Shows Up? Or, What Are the Limits of the Definition of Perform “Publicly” Under 101?, 27 C U.S.C. § fusion this discussion will focus on the rights to reproduce, publicly distribute, and publicly fusion this discussion will focus on the rights perform the work. A license of the exclusive right to reproduce presumably includes a license of the exclusive right to distribute as well. \\jciprod01\productn\C\CJP\30-1\CJP101.txt of the work. rights in the work. curs either (1) in a place open to the public or (2) in a semi-public curs either (1) in a place open to place. 2020] 2020] relevant for this discussion: (1) the exclusive right to reproduce and dis- (1) the exclusive right to relevant for this discussion: to publicly perform work, and (2) the exclusive right tribute copies of the the work. C Y cjp_30-1_42664 Sheet No. 15 Side A 15 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 15 Side B 11/12/2020 09:05:36 M K , C Y 124 and 125 § 5:193, § supra note , [Vol. [Vol. 30:1 28-OCT-20 8:34 CHOA OPYRIGHT C supra note 124, § 2:44 & O , Sound recordings, Sound recordings, Sound Recording Act of eamus O’Melinn, The Re- public and private and public OLICY OLICY 126 AW OF CHOA P BRAMS 121 L Seq: 22 Seq: HE & O Compare , T UBLIC UBLIC P See also A BRAMS CHOA Title II of the Music Modernization Act of 2018, T. O unknown AW AW AND Hinton v. Mainlands of Tamarac, 611 F. Supp. 494, Hinton v. Mainlands of Tamarac, 611 F. Supp. 123 L with note 98, § 7.2.1.2 (“Congress long resisted efforts to note 98, § YLER cf. & T supra , supra note 124, § recording fixed before Febru- 8:38 (“Any sound , . 75, 78 (2011) (“Copyright for sound recordings was once . 75, 78 (2011) (“Copyright for sound BRAMS OURNAL OURNAL OF EV J OLDSTEIN CHOA B. A & O and doctors’ offices. and doctors’ e.g., Bagdadi v. Nazar, 84 F.3d 1194, 1198–99 (9th Cir. 1996). U. L. R OWARD ORNELL ORNELL In 1971, sound recording rightsholders were granted certain ex- rightsholders were granted In 1971, sound recording 122 C BRAMS But an exclusive right to public performance of a sound recording right to public performance of a sound But an exclusive Copyright Amendment Act of 1897, ch. 4, 29 Stat. 481. Copyright Amendment Act of 1897, ch. 4, 29 A 17 U.S.C. §§ 106, 114(b) (2018). See also A 1 H Copyright Act of 1831, ch. 16, 4 Stat. 436. , Bourne Co. v. Hunter Country Club, Inc., 990 F.2d 934, 935 (7th Cir. 1993); Country Club, Inc., 990 F.2d 934, 935 (7th Cir. See, e.g., Bourne Co. v. Hunter See, Rodgers v. Black, Civ. No. 85–0208 1986) P, 1986 WL 12876, *1 (D. Me. July 29, 127 The public performance right for a sound recording is more limited is more for a sound recording performance right The public EATTLE 128 126 127 128 124 125 121 122 123 496 (S.D. Fla. 1985) (concluding that a performance in a condominium clubhouse was a “pub- 496 (S.D. Fla. 1985) (concluding that a performance lic performance”). Fermata Int’l Melodies, Inc. v. Champions Golf Club, Inc., 712 F. Supp. 1257, 1260 (S.D. Fermata Int’l Melodies, Inc. v. Champions Golf that a performance of songs in Tex. 1989), aff’d, 915 F.2d 1567 (5th Cir. 1990) (concluding performance” in a semi-public place where restaurant of private golf club constituted a “public 21 club members were in attendance); doctors’ offices amounts to public performance (“Since playing the tapes publicly in stores and from the copyright owners to avoid claims of the musical compositions, 3M required licenses of copyright infringement.”). copyright purposes include private golf clubs, golf private include purposes copyright schools, by contrast, were not eligible for federal copyright protection before not eligible for federal copyright by contrast, were 1972. the public performances right was granted in 1897. the public performances Musical compositions have been federally protected since 1831, have been federally protected Musical compositions \\jciprod01\productn\C\CJP\30-1\CJP101.txt 22 cording Industry v. James Madison, aka “Publius”: The Inversion of Culture and Copyright cording Industry v. James Madison, aka “Publius”: extend copyright protection to recorded performances.”); Liam S´extend copyright protection to recorded performances.”); 35 S than the performance right for a musical composition. In part, this re- In part, for a musical composition. performance right than the sound re- protection to to extend copyright reluctance flects Congress’s to federal law. is a relatively recent amendment cordings, which Westlaw (database updated Nov. 2019) (“[T]he failure of the 1976 Copyright Act to grant a Westlaw (database updated Nov. 2019) (“[T]he in sound recordings was quite deliberate.”) right of performance to the owners of copyrights (footnote omitted); G 124, § of 1831 2:44 (“Given the technology of that day, the only copies that the Copyright Act No account was taken of music boxes, and such envisioned were in the form of printed music. exist.”). devices as phonograph records simply did not (“[The 1971 Sound Recording Amendment] provided a copyright in the performance that was (“[The 1971 Sound Recording Amendment] provided a copyright in the performance that independent of the copyright in the musical work that was performed, thus allowing the owner of the rights in the performance to directly sue infringers.”). clusive rights with respect to their recordings (namely, exclusive rights to respect to their recordings (namely, clusive rights with of cop- derivative works, and (3) public distribution (1) reproduction, (2) ies). controversial[.]”). Pub. L. No. 115-264, 132 Stat. 3676. 1971, Pub. L. No. 92-140, 85 Stat. 391, ary 15, 1972, the effective date of the 1971 Sound Recording Amendment, is not eligible for ary 15, 1972, the effective date of the 1971 Sound Recording Amendment, is not eligible Act, federal statutory copyright protection. As a result of the Classics Protection and Access however, sound recordings fixed before February 15, 1972, are now afforded parallel federal re- protection that is equivalent (but not identical) to federal copyright protection for sound cordings fixed on or after that date.”) (footnotes omitted). cjp_30-1_42664 Sheet No. 15 Side B 15 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 16 Side A 11/12/2020 09:05:36 23 23 . & , 11 NT . J. E 28-OCT-20 8:34 AND , 16 V Seq: 23 Seq: USIC USIC Performance Royalties for Sound 133 M . L.J. 233, 263 (2012) (“Internet radio is Songs played over terrestrial radio over terrestrial Songs played ROP . P 130 TILITY TILITY OF unknown U It wasn’t until 1995 that a limited public public a limited 1995 that until It wasn’t NTELL . I 129 On the other hand, for copyrighted songs On the other hand, EX OCIAL 132 S , 20 T note 124, § 2:44 (“The rights granted to a copyright owner supra note 124, § , CHOA . L.J. 447, 451 (2003) (“When records are performed on the radio, the . L.J. 447, 451 (2003) (“When records are & O ROP . P 17 U.S.C. §§ 112(a)(1), 114(d)(1) (2018). 17 U.S.C. §§ This means that for copyrighted songs played over terrestrial over terrestrial songs played that for copyrighted This means BRAMS See and Streaming Media Matt Jackson, From Broadcast to Webcast: Copyright Law Amanda Reid, The Power of Music: Applying First Amendment Scrutiny to Copyright A Act of 1995, Pub. L. No. 104–39,Digital Performance Right in Sound Recordings 109 131 NTELL Figure 2 below summarizes the reproduction right and public per- the reproduction right Figure 2 below summarizes . L. 197, 199 (2013) (“Congress limited its extension of the sound-recording performance . I 132 133 129 130 131 EX ECH M K these performances are considered free promotion that help drive album that help drive free promotion are considered these performances played over Internet radio, a performance license is required for both the radio, a performance license is required played over Internet and the sound recording. musical composition obligated to pay a royalty for both the sound recording and musical work copyrights; however, obligated to pay a royalty for both the sound recording and musical work copyrights; however, terrestrial radio is still exempt from paying a royalty for the sound recording.”). copyright owner in the musical composition earns a performance royalty but the copyright copyright owner in the musical composition earns a performance royalty but the copyright owner in the sound recording does not.”); J.P. Urban, Note, Recordings on Terrestrial Radio: A Private Solution to A Public Problem Regulation of Internet Radio Stat. 336. The 1998 Digital Millennium Copyright Act (DMCA) included webcasting as a Stat. 336. The 1998 Digital Millennium Copyright limited performance right. DMCA, Pub. L. No. category of performance that triggered this 105-304, 112 Stat. 2860, 2890–91 (1998). T of a performance embodied in a sound recording are comparatively limited, protecting only of a performance embodied in a sound recording captured in the original sound recording, and against a direct copying of the particular sounds (footnote omitted). providing no right of public performance.”) \\jciprod01\productn\C\CJP\30-1\CJP101.txt T was not granted at that time. at that not granted was performance right was extended to digital audio transmissions of sound transmissions to digital audio right was extended performance streaming services). recordings(i.e., royalties to digital broadcasters. It did not require traditional terrestrial radio stations to pay royalties to digital broadcasters. It did not require traditional terrestrial radio stations to per- sound-recording performance royalties, leaving sound recordings with an asymmetrical formance right.”) (citation omitted). formance right of musical compositions and sound recordings, including musical compositions and sound recordings, formance right of law. were first recognized under federal the dates those rights 2020] 2020] remain excluded from the sound recording public performance right— public performance sound recording from the remain excluded sales. radio, a performance license is required for the musical composition, but license is required for the musical radio, a performance not the sound recording. C Y cjp_30-1_42664 Sheet No. 16 Side A 16 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 16 Side B 11/12/2020 09:05:36 M K C Y . OPYRIGHT I [Vol. [Vol. 30:1 28-OCT-20 8:34 Feb. 1, 1996 transmission digital audio Exclusive right to publicly perform by I see also U.S. C OLICY OLICY Sound recording P Seq: 24 Seq: I 1 (Comm. Print 1957), https:// UBLIC UBLIC reproduce P Feb. 15, 1972 Exclusive right to OPYRIGHTS I C unknown AW AW AND L Copyright in music Copyright in ( l Moreover, there are, of course, many ways a Moreover, there are, of course, many I Jan. 6, 1897 136 publicly perform Exclusive right to IVISIBILITY OF Divisibility means, for example, the holder of the Divisibility means, for example, the OURNAL OURNAL OF 134 J ., D EPRODUCTION AND PERFORMANCE RIGHTS IN MUSIC Musical composition ONG Again, the copyright owner of the musical composition and Again, the copyright owner of the C 2: R 135 ORNELL ORNELL TH C I I I I I 17 U.S.C. § 201(d) (2018) (transfer of copyright ownership); 201(d)(1) (“ownership of a copyright may be transferred in whole or in 17 U.S.C. § See supra Figures 1 & 2. reproduce , 86 IGURE Feb. 3, 1831 An important feature of a copyright is that its constituent bundle of An important feature of a copyright Now that we have sketched out the musical composition and the Now that we have sketched out the F Exclusive right to 134 135 136 FFICE DODD DODD the user may need to find different rightsholders in order to request the the user may need to find different www.copyright.gov/history/studies/study11.pdf (authored by Abraham L. Kaminstein). reproduction right can be different from the holder of the public perform- reproduction right can be different ance right. part by any means of conveyance or by operation of law”). O \\jciprod01\productn\C\CJP\30-1\CJP101.txt 24 the sound recording each have the exclusive right to reproduce and pub- the sound recording each have the licly perform the work. rights is divisible. musical work can be reproduced and many ways it can be performed. musical work can be reproduced and a bewildering maze of potential li- The divisibility of rights results in song implicates more than one censes. If a particular use of a copyrighted right—like public performance— reproducing sheet music for a choir’s necessary licenses. works in music, and the sound recording as two distinct copyrightable - divisibility of the attendant exclusive rights, we can examine the differ ent rightsholders who grant licenses for a variety of uses. Figure 3 below the summarizes various licenses for using copyrighted music. Note that cjp_30-1_42664 Sheet No. 16 Side B 16 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 17 Side A 11/12/2020 09:05:36 L. 25 25 . RAD see also At one transmission digital audio (e.g., streaming) Exclusive right to License for Digital publicly perform by Audio Transmission & B 138 28-OCT-20 8:34 AKS (Dec. 15, 2018), Sound recording A. W reproduce recording) use an existing License (e.g., to Exclusive right to Master Recording § 4:281, Westlaw (database § XPLORATION Seq: 25 Seq: AWRENCE USIC USIC 137 M Copyright in music restaurant) RANSACTIONS play a song in a License (e.g., to publicly perform Exclusive right to See also L Public Performance T TILITY TILITY OF For example, the average fee for re- For example, the average fee for unknown U USINESS 141 There is no set fee that a music publisher There is no set fee that a music publisher B Musical composition 140 License (e.g., to Synchronization UIDE make a cover song) OCIAL note 139 (“If a music publisher wants to refuse to allow the G S Today, the majority of the music publishing income Today, the majority of the music publishing RACTICE 139 P reproduce TANDARD LICENSES FOR USING COPYRIGHTED MUSIC Mechanical Reproduction License (e.g., to Exclusive right to make a cover song) EXAS note 3, at 308 (“A print license is a permission that authorizes one to supra note 3, at 308 (“A print license is a permission supra note 3, at 91. 3: S , , § 114(d)(3) (detailing licenses for transmissions by interactive services); 114(d)(3) (detailing licenses for transmissions § , 1 T OHN OHN K Jacob Wunderlich et al., What are Print Rights?, E K Wunderlich et al., supra 17 U.S.C. § 114(d)(2) (prescribing statutory licensing of certain transmis- Compare 17 U.S.C. § with IGURE The exclusive right to reproduce means the rightsholder can author- The exclusive right to reproduce means F sheet music) 138 139 140 141 137 to make copies of Print License (e.g., HITLOCK M K updated June 2020) (“The publication of a composer’s work in print, sheet music, songbooks, updated June 2020) (“The publication of a composer’s work in print, sheet music, songbooks, is derived from public performance licensing (40%) and mechanical re- is derived from public performance production licensing (25%). Am. Broad. Cos., 573 U.S. at 442–44. of Figure 3 is to illustrate the complexity The purpose amply satisfied without further reflecting all the of the music licensing system. This purpose is technical minutiae of online streaming services. can printing of lyrics to one of their songs, they have the legal right to do so. Likewise, they charge any amount of money for such usage.”). sions) W \\jciprod01\productn\C\CJP\30-1\CJP101.txt make printed copies of music, such as the reproduction of musical notation in sheet music and make printed copies of music, such as the reproduction printed music folios (also known as transcriptions) and reprints of lyrics in books, magazines, and print advertising. A print license typically invokes the copyright owner’s exclusive rights of reproduction and distribution.”) (emphasis omitted). can charge for a print license. exclusive right to reproduce the musical composition is a subdivided li- a subdivided is composition musical the to reproduce right exclusive the compo- to reproduce license needed the appropriate censing schema; used—i.e., music is to be on how the sition depends print license to a own sound to make your mechanical license sheet music or a copy the to publicly exclusive right composition. The of the musical recording depending subdivides, also further by digital audio transmission perform the streaming service is. on how interactive ize copying lyrics or sheet music by selling a print license. ize copying lyrics or sheet music time, print licenses were the main source of income for songwriters and time, print licenses were the main music publishers. https://exploration.io/what-are-print-rights/. 2020] 2020] C Y cjp_30-1_42664 Sheet No. 17 Side A 17 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 17 Side B 11/12/2020 09:05:36 M K , C Y 146 BOUT CHOA A In ex- & O NOW 144 [Vol. [Vol. 30:1 28-OCT-20 8:34 K § 8.04 (Matthew § BRAMS A 143 EED TO N note 141, § 4:254. 4:254. supra note 141, § , OPYRIGHT - Today, the compul OU OLICY OLICY supra note 139 (“For single- C P Y 147 LL Seq: 26 Seq: In other words, the com- note 124, § 5:26. supra note 124, § HITLOCK , A , , 209 U.S. 1 (1908). 148 UBLIC UBLIC IMMER ON P & W CHOA , N ASSMAN AKS , https://www.musicservices.org/license/rates & O S. P IMMER unknown N AW AW AND . 60-2222, at 6 (1909)). Accord BRAMS O ERVICES L A ONALD S AVID . N Worried about “a great music monopoly,” Worried about “a See EP USIC 145 & D See also D IMMER But the bulk of the fee, however, doesn’t make it to doesn’t make bulk of the fee, however, But the OURNAL OURNAL OF J 142 260 (10th ed. 2019) (“For single-song physical sheet music, the standard 260 (10th ed. 2019) (“For single-song physical B. N , supra note 3, at 1670; see also W USINESS ELVILLE ORNELL ORNELL B C OHN 2 M 1(e), 35 Stat. 1075. Copyright Act of 1909 Pub. L. No. 60-349, ch. 320, § rate has increased over time; today, the statu- 115 (2018). The statutory 17 U.S.C. § Rates and Licenses, M K 1(e), 35 Stat. 1075, which ch. 320, § Copyright Act of 1909, Pub. L. No. 60-349, only after there has been an authorized Technically, others may record cover songs USIC While a print license fee is unconstrained, a mechanical license is a mechanical license is unconstrained, print license fee While a M 146 147 148 142 143 144 145 (“The royalties paid on sheet music typically are only a nickel or dime for each copy sold.”). (“The royalties paid on sheet music typically Bender, Rev. Ed.) (quoting H.R. R the composer. Under the standard music publishing agreements, song- agreements, standard music publishing Under the the composer. of the fee. 7¢ and 8¢ receive between writers typically THE tory rate for the reproduction and distribution of musical works in physical and permanent tory rate for the reproduction and distribution of musical works in physical and permanent digital downloads is 9.1¢ for recordings up to five minutes in length and, if over five minutes, 1.75¢ per minute of playing time. superseded White-Smith Music Publ’g Co. v. Apollo Co. 115(a)(1) (2018) (detailing eligibility for compulsory recording of the song. 17 U.S.C. § license). royalty is 20% of the marked retail price (currently most single-song sheet music has a $4.95 royalty is 20% of the marked retail price (currently Wunderlich et al., retail price, so the publisher gets about 99¢).”); song physical sheet music (non-digital), the industry standard is a 20% royalty of marked retail song physical sheet music (non-digital), the industry music, the publisher receives about 99 cents price. Given an average price of $5.00 per sheet from each purchase.”). printing song lyrics in a church bulletin averages between $15.00 and $15.00 between averages bulletin a church lyrics in song printing song. $35.00 per change for this new exclusive right, Congress compelled a licensing sys- exclusive right, Congress compelled change for this new of a musical may create and distribute cover versions tem whereby others set fee. composition for a sory mechanical license permits a licensee, who pays the statutorily pre- permits a licensee, who pays sory mechanical license track), to reproduce the musical scribed rate (currently 9.1¢ per composition in an original sound recording. (last visited June 11, 2020). Congress enacted a compulsory license system in the 1909 Copyright a compulsory license system in Congress enacted on the technology “mechanical” reproduction of music Act to permit the rolls and phonograph records. of the day: piano by print companies who are licensed by or arrangements and the like, generally is undertaken the music publisher to do so.”). \\jciprod01\productn\C\CJP\30-1\CJP101.txt 26 note 124, § 2:44 (“Fearful that protecting musical copyrights from unauthorized pho- supra note 124, § the norecords might result in ‘establishing a great music monopoly,’ Congress reacted with the convoluted provision that came to be known as a ‘compulsory license,’ a device which was prototype for the compulsory licenses that have proliferated in the 1976 Act.”) (footnotes omitted). pulsory license allows you to sing, record, and distribute your own cover pulsory license allows you to sing, limited by a statutory rate. Over a century ago, Congress extended to rate. Over a century ago, Congress limited by a statutory compositions in right to reproduce musical songwriters the exclusive records. like piano rolls and phonograph mechanical devices cjp_30-1_42664 Sheet No. 17 Side B 17 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 18 Side A 11/12/2020 09:05:36 27 27 155 28-OCT-20 8:34 note 149 (“HFA has supra note 3, at 683–84 , supra OHN This mechanical repro- This mechanical Seq: 27 Seq: USIC USIC 153 M See also K note 124, §§ 5:23–5:25supra note 124, §§ (discussing , CHOA TILITY TILITY OF unknown U & O HFA represents over 60% of the domestic of the domestic over 60% HFA represents 150 OCIAL BRAMS S A supra note 115, § will not issue a mechanical license 9:16 (“HFA , See For administrative convenience of songwriters and of songwriters convenience For administrative But, in practice, mechanical licenses from HFA are mechanical licenses from HFA are But, in practice, 154 149 151 152 ANDAU , supra note 3, at 564. See also History of HFA & L , receive a request , supra note 3, at 857 (“A copyright owner will occasionally arrangement, the , supra note 3, at 94 (“Under a standard music publishing OHN OHN OHN INDEY The purpose is also limited; the primary purpose of making the cover song must be for (last visited July 7, 2020). History of HFA, HFA, https://www.harryfox.com/#/history K K L K Technically, you need to (1) “serve notice” of your intention to make a cover song to Technically, you need to (1) “serve notice” of But the scope of the compulsory mechanical license has its limits. compulsory mechanical license has But the scope of the - the bulk of the mechan (HFA) issues Harry Fox Agency Today, the 155 151 152 153 154 149 150 M K duction license fee is typically split equally between the music publisher is typically split equally between duction license fee and the songwriter. typically at the statutory rate (9.1¢ per song). typically at the statutory a private use, not a commercial use. 17 U.S.C. § 115(a)(1)(A) (2018) (“A person may obtain a is compulsory license only if the primary purpose in making phonorecords of the musical work to distribute them to the public for private use . . . .”). (“The Harry Fox Agency (HFA), established in 1927, has long been America’s premiere li- (“The Harry Fox Agency (HFA), established and continues to serve the industry today censing agent for issuing mechanical licenses, enhancing value for music creators and through its commitment to innovation while publishers.”). the copyright holder, and (2) make timely royalty payments. 17 U.S.C. § 115(b)(1), (c)(1). payments. 17 U.S.C. § the copyright holder, and (2) make timely royalty for sound engineers and record producers to The Music Modernization Act creates procedures sound recordings. Music Modernization Act of receive royalties for digital performances of 2018, Pub. L. No. 115-264, 132 Stat. 3676. into The new blanket licensing system will come effect on January 1, 2021. (“A mechanical license is a license that permits (i) the audio-only reproduction of music in (“A mechanical license is a license that permits (i) the audio-only reproduction of music phonorecords (i.e., copies that may be heard with the aid of a ‘mechanical’ device—such as a player piano, a phonograph record, a CD player, personal computers, digital music players, such as MP3 players, the Apple iPod or iPhone, and player-equipped Internet browsers)—and - (ii) the distribution or delivery of such phonorecords to the public for private use. Pho norecords may be distributed physically (e.g., CD) or delivered digitally by permanent download, limited download, or on-demand (i.e., interactive) stream.”) (emphasis omitted). The mechanical reproduction license does not permit the use of someone license does not permit The mechanical reproduction own sound record- it permits you to create your else’s sound recording; \\jciprod01\productn\C\CJP\30-1\CJP101.txt that a mechanical license be issued for a fee that is below the statutory rate. This is known as that a mechanical license be issued for a fee a mechanical license fee that is below the asking for a rate. To give a rate refers to charging statute. When a ‘rate’ is offered, it is usually statutory rate set by the compulsory license (emphasis omitted). quoted at either 50% or 75% of statutory.”) the most part, are equal (i.e., the publisher and writer’s share and the publisher’s share, for a 50-50 basis).”) (footnote omitted). writer split most of the publishing income on commercial connectivity with over 48,000 affiliated publishers, more than 2,500 record labels commercial connectivity with over 48,000 affiliated (DSPs) operating within the U.S.”). and several top-tier digital service providers at less than the statutory royalty rate unless so instructed by its publisher principal.”). at less than the statutory royalty rate unless music publishers. version of a musical composition—so of a musical version - pre a statutorily as you pay long fee. scribed license ical reproduction licenses. ical reproduction the MMA’s compulsory blanket license for digital performances of music). the MMA’s compulsory blanket license for digital music publishers, HFA issues reproduction licenses on their behalf. In licenses on their reproduction HFA issues music publishers, be secured below license to create a cover song can theory, a mechanical the statutory rate. 2020] 2020] C Y cjp_30-1_42664 Sheet No. 18 Side A 18 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 18 Side B 11/12/2020 09:05:36 M K , C Y EE ona S. L ARK [Vol. [Vol. 30:1 28-OCT-20 8:34 While a com- note 162. Note that The mechanical The mechanical 159 157 supra , ona suggest “[l]yric ona suggest “[l]yric OLICY OLICY —the exact scope of P 160 Seq: 28 Seq: Changes to the basic melody Changes to the basic UBLIC UBLIC P § 7:14, Westlaw (database updated Dec. § 161 AW L rev’d, 510 U.S. 569 (1994). And, lastly, the compulsory mechan- the compulsory And, lastly, unknown AW AW AND 158 What is/When Do I Need a Custom Arrangement Li- L ROPERTY P note 146, § 8.04. note 146, § note 3, at 649 (“It goes without saying that the mechanical note 3, at 649 (“It goes without saying that supra Requiring an additional license for any lyrical al- Requiring an additional , supra , 163 ona lacks standing to sue as to three of the four musical works at OURNAL OURNAL OF J NTELLECTUAL Licensing companies like Tres´ Licensing companies , https://tresona-help.groovehq.com/help/what-is-a-custom-arrangement- Acuff-Rose Music, Inc. v. Campbell, 972 F.2d 1429, 1432–33Acuff-Rose Music, Inc. v. Campbell, 972 F.2d & nn.3–4 IMMER I OHN note 3, at 649 (“It has been asserted that the procurement of a , supra note 3, at 649 (“It has been asserted that 162 Stratchborneo v. Arc Music Corp., 357 F. Supp. 1393, 1405 (S.D.N.Y. Stratchborneo v. Arc Music Corp., 357 F. COM . with & N OHN K ORNELL ORNELL See also K C IMMER RESONA The mechanical reproduction license does not permit the copying copying the not permit license does reproduction mechanical The What is/When Do I Need a Custom Arrangement License? N 17 U.S.C. §?115(a)(2) (2018). Id. Compare See 17 U.S.C. § 115(a)(1) (2018). 17 U.S.C. § F.3d 60, 64 (2d Cir. 1996) (“[W]hile a ABKCO Music, Inc. v. Stellar Records, Inc., 96 156 ona recently lost a copyright case brought against a high school show choir. Tres´ 163 158 159 160 161 162 156 157 NTERTAINMENT AND or fundamental character of a song require a separate permission-to-ar- of a song require a separate or fundamental character range license. cense?, T 2019) (“Permission from the underlying copyright owner is needed because the arrangement is 2019) (“Permission from the underlying copyright a derivative work.”) (footnote omitted); changes of any kind require the publisher’s permission via a Custom Ar- require the publisher’s permission changes of any kind rangement license.” mechanical license gives the licensee the privilege of preparing custom musical arrangements mechanical license gives the licensee the privilege in copies to facilitate public perform- of the musical work and of reproducing the arrangements the case.”) (emphasis omitted); M ances without further permission. But this is not license (last visited July 7, 2020) (“Whenever music is altered from its original form and one license (last visited July 7, 2020) (“Whenever music is altered from its original form and desires to make sheet music of the arrangement, it becomes a derivative work. Creating sheet music of a derivative work requires the permission of the publisher via a Custom Arrangement License.”). permissible song modification is unclear. permissible song modification 1973) (“A licensee has the right so to alter a copyrighted work to suit his own style and 1973) (“A licensee has the right so to alter interpretation.”), Tres´ Multimedia, LLC v. Burbank High Sch. Vocal Music Ass’n, 953 F.3d 638, 642 (9th Cir. 2020) (“We conclude that Tres´ issue, and that the defense of fair use renders the use of the fourth noninfringing.”). compulsory license permits the recording of a ‘cover’ version of a song, it does not permit the compulsory license permits the recording of a the separate permission of the copyright inclusion of a copy of the lyrics. That requires holder.”). ing. ical reproduction license requires that the cover song “shall not change song “shall that the cover license requires ical reproduction or fundamental character of the work.” the basic melody \\jciprod01\productn\C\CJP\30-1\CJP101.txt 28 E license permits only the use of a musical work in the making and distributing of phonorecords license permits only the use of a musical work sound recordings). It does not permit the making (i.e., physical objects that embody audio-only audiovisual works, etc.) nor does it permit the of copies of the musical work (e.g., sheet music, reproduction of copies and the performance of public performance of such musical work. The (emphasis omitted). the work must be made under separate licenses.”) pulsory license “includes the privilege of making a musical arrangement the privilege of making a musical pulsory license “includes the style or manner extent necessary to conform it to of the work to the of the performance involved” of interpretation of sheet music—that print license. a separate requires license permits an audio-only recording of the song; the use of visuals the song; the use recording of an audio-only license permits the audio recording—likealong with a film—requires in li- a different license. cense: a synchronization (6th Cir. 1992) (conceding the distortion in 2 Live Crew’s alleged parody of a classic song (6th Cir. 1992) (conceding the distortion in lacked entitlement to a compulsory license), cjp_30-1_42664 Sheet No. 18 Side B 18 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 19 Side A 11/12/2020 09:05:36 29 29 169 167 See also 101 (Feb. 2, 28-OCT-20 8:34 note 110, at 21 note 110, at 37 APELLA But substantial substantial But supra supra , , 164 , A C FFICE FFICE O O Seq: 29 Seq: USIC USIC , ASCAP, https://www.ascap.com/ M OPYRIGHT OPYRIGHT TILITY TILITY OF , U.S. C , U.S. C unknown , BMI, https://www.bmi.com/licensing (last visited (last , https://www.halleonard.com/licensing/faq.jsp U OUNSEL OUNSEL The PRO collects the license fees and then The PRO collects 168 EONARD OCIAL . C . C 171 S L EN EN AL G G Permission to Arrange for Live Performance —negotiate for the public performance license agreements note 3, at 484 (“[T]he copyright owner cannot require that a fee be paid supra note 3, at 484 (“[T]he copyright owner cannot 170 FFICE OF THE FFICE OF THE , O O But if you want to publicly perform that musical composition, composition, perform that musical want to publicly But if you 165 OHN K Broadcast Music, Inc. (“BMI”). Society of European Stage Authors and Composers (“SESAC”). See Note that there is very likely a license fee. In the FAQ section on HalLeonard.com Note that there is very likely a license fee. See ASCAP Licensing: Frequently Asked Questions Any new recording will, invariably, include some amount of song adaptation. There- Any new recording will, invariably, include 166 Licensing FAQs, H Performing rights organizations (PROs)—likePerforming rights ASCAP, BMI, If you want to put your cover song on a CD, the Harry Fox Agency the Harry Fox Agency song on a CD, to put your cover If you want 168 169 170 171 165 166 167 164 M K (“[I]n practice, because of the administrative burdens imposed by the license—including(“[I]n practice, because of the administrative ser- reporting of royalties on a song-by-song vice of a notice on the copyright owner and monthly basis—mechanical (footnote licensing is often handled via third-party administrators.”) omitted). per- (“ASCAP is expressly barred from licensing any rights other than its members’ public formance rights (i.e., ASCAP may not license mechanical or synchronization rights). Although BMI’s consent decree lacks a similar prohibition, in practice BMI does not license any rights dif- other than public performance rights.”) (footnotes omitted). Note that each PRO licenses ferent musical compositions, thus licensees often pay a blanket license to more than one PRO. See Licensing FAQ: If a Business Has a License with Another Performing Right Organization, Do They Still Need to License with BMI? of musical compositions. there is the question “Do you ever grant gratis permission?” To which the answer is: “We there is the question “Do you ever grant gratis or non-profit organizations. In an effort to be fair receive a number of requests from charitable it is our general policy not to grant gratis permis- and equitable in our handling of all requests, sion.” fore, the wisest interpretation of the statutory language would permit a musical arrangement to fore, the wisest interpretation of the statutory or manner of interpretation involved. the extent necessary to conform to the style Jonathan Minkoff, and SESAC Note that private performances, like singing in the shower, are outside performances, like singing in the Note that private the scope of a rightsholder. \\jciprod01\productn\C\CJP\30-1\CJP101.txt every time you play a compact disc in your home, insert an audiocassette of copyrighted music every time you play a compact disc in your home, in your car stereo, or sing a song in the shower.”). distributes proceeds to songwriters and music publishers. For places that to songwriters and music publishers. distributes proceeds teration seems like an unreasonable interpretation. unreasonable like an seems teration http://www.acappella101.com/home/permission-to-arrange-for-live-performance 2012), http://www.acappella101.com/home/permission-to-arrange-for-live-performance does not also embody at least a slightly new (“There is no such thing as a performance that . . . Even if every single one of the notes were arrangement, if examined in fine enough detail. key, style, instrumentation, voicing, etc. the same, the differences in timbre, tempo, dynamics, had been varied to some degree. Even a dead- would all contribute to whether the arrangement the arrangement somewhat. And a varied ar- on, sound-a-like tribute band would still vary rangement, however slight, is a new arrangement.”). can sell you permission to record your own version of a musical compo- version of a musical record your own permission to can sell you sition. visited July 7, 2020). 2020] 2020] you will need to talk with a performing rights organization, such as the talk with a performing rights organization, you will need to (ASCAP). of Composers, Authors and Publishers American Society song modifications can warrant a custom arrangement license—absent a custom can warrant song modifications fair use. help/ascap-licensing (last visited July 7, 2020). help/ascap-licensing (last visited July 7, 2020). C Y cjp_30-1_42664 Sheet No. 19 Side A 19 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 19 Side B 11/12/2020 09:05:36 M K C Y 173 PROs 172 [Vol. [Vol. 30:1 28-OCT-20 8:34 note 110, at 33 (“Most OLICY OLICY note 167. (“The annual rate supra P , Seq: 30 Seq: see also Meredith Corp. v. SESAC FFICE supra But rate-challenging is an 17 U.S.C. § 110(5) (2018). See 17 U.S.C. § , O UBLIC UBLIC 177 P Under the consent decrees, these Under the consent If the PRO and putative licensee If the PRO and 174 In other words, each PRO sets its In other words, OPYRIGHT 176 175 unknown AW AW AND L , U.S. C OUNSEL note 142, at 230. . C EN OURNAL OURNAL OF supra J G , note 3, at 483 (“The American Society of Composers, Authors, and supra note 3, at 483 (“The American Society of note 3, at 482 (“For certain kinds of uses, such as the public performance supra note 3, at 482 (“For certain kinds of uses, such , , ASSMAN P ORNELL ORNELL C OHN OHN FFICE OF THE See ASCAP Licensing: Frequently Asked Questions See Broad. Music, Inc., 1994 WL 901652, at *1; K K O Decades ago, there were concerns about ASCAP and BMI’s anti- were concerns about ASCAP and Decades ago, there 175 176 177 173 174 172 commonly, licensees obtain a blanket license, which allows the licensee to publicly perform commonly, licensees obtain a blanket license, for a flat fee or a percentage of total reve- any of the musical works in a PRO’s repertoire establishments do not need to obtain a nues.”) (footnote omitted). Note that small commercial live music. public performance license unless they play LLC, 1 F. Supp. 3d 180, 198 (S.D.N.Y. 2014) (“[I]f ASCAP and a putative licensee could not reach an agreement, the licensee could apply to a ‘rate court’ to set a reasonable fee, with ASCAP bearing the burden of proof as to the reasonableness of its rate.”). regularly play music, like restaurants and radio stations, PROs offer blan- offer PROs radio stations, and restaurants music, like play regularly performances. licensing rather than individually ket licenses July 7, 2020) (“[E]ach songwriter or composer may belong to only one performing right or- July 7, 2020) (“[E]ach songwriter or composer a unique repertoire of music.”). ganization at any given time, so each PRO licenses \\jciprod01\productn\C\CJP\30-1\CJP101.txt 30 of music in restaurants, theaters, concert halls, and nightclubs, and broadcast on radio and of music in restaurants, theaters, concert halls, to negotiate a separate license for each television, it would be impractical for music publishers throughout the year. The transaction costs would and every performance that occurs every day for structuring and collecting fees for public be prohibitive. The arrangement that has evolved omitted). performances is the blanket license[.]”) (emphasis (BMI), the two largest performance Publishers (ASCAP) and Broadcast Music Incorporated subject to court judgments, called consent de- rights societies in the United States, are each by the U.S. Department of Justice many crees, which arose out of antitrust actions initiated Authors & Publishers, No. 41- years ago.”). See United States v. Am. Soc’y of Composers, 11, 2001) (second amended final judgment); 1395 (WCC), 2001 WL 1589999 (S.D.N.Y. June 3787, 1994 WL 901652 (S.D.N.Y. Nov. 18, United States v. Broad. Music, Inc., No. 64 CIV. 1994) (amended final judgment). competitive behavior ; as a result, both PROs are subject to consent de- ; as a result, both PROs are subject competitive behavior of Justice. crees with the Department each control a different catalog of songs, and a blanket license allows a a blanket license of songs, and a different catalog each control repertory. in that PRO’s any of the songs to publicly perform licensee play mu- that routinely for establishments are essential Blanket licenses is each public performance license for negotiating a separate sic because be prohibitive. and the transaction costs would simply impractical, own license fee, which is often based on the type and size of the business is often based on the type and own license fee, which be performed. and how music will don’t agree on a license fee, the licensee is authorized to challenge the don’t agree on a license fee, the licensee rate. reasonableness of the PRO’s license PROs are required to allow licensees to publicly perform their songs in to allow licensees to publicly perform PROs are required to decide how much fee. However, the PROs get exchange for a blanket for that license. they will charge depends on the type of business. Generally, rates are based on the manner in which music is depends on the type of business. Generally, rates are based on the manner in which music or performed (live, recorded or audio only or audio/visual) and the size of the establishment - potential audience for the music. For example, rates for restaurants, nightclubs, bars and simi or lar establishments depend on whether the music is live or recorded, whether it’s audio only audio visual, the number of nights per week music is offered, whether admission is charged and several other factors.”). cjp_30-1_42664 Sheet No. 19 Side B 19 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 20 Side A 11/12/2020 09:05:36 & 31 31 Stran- EDIA Also, ., M 182 28-OCT-20 8:34 ROP . P NTELL I Seq: 31 Seq: USIC USIC ORDHAM M , 1 F ona, 953 F.3d at 652 (finding a high - ASCAP, https://www.ascap.com/help/ascap-li Notwithstanding implicit permission Notwithstanding , ASCAP, https://www.ascap.com/help/ascap-li- TILITY TILITY OF unknown U 181 See also Tres´ 178 Nonetheless, the parameters of any such im- Nonetheless, the OCIAL S 180 note 164 (“If every new performance of a song (for recording or note 164 (“If every new performance of a song supra note 3, at 650–51 (“[A]ny public performance of a custom , note 3, at 651 (“Being that a performance license from a performance supra OHN note 3, at 483 (“Where a licensee believes that the fees quoted by supra note 3, at 483 (“Where a licensee believes , supra OHN , K Minkoff, Although a PRO license does not expressly authorize the live, authorize the live, does not expressly a PRO license Although OHN For a live stage performance, you’ll need to negotiate with the performance, you’ll need to negotiate For a live stage K Common Licensing Terms Defined See See, e.g., K See What Does the ASCAP License Do?, 179 The scope of a PRO license is limited. A PRO’s blanket license PRO’s blanket is limited. A of a PRO license The scope 183 . L.J. 11, 38 (1990) (“Performing rights licenses issued to the broadcaster by ASCAP, BMI . L.J. 11, 38 (1990) (“Performing rights licenses 182 183 180 181 178 179 NT M K E live performance) is really a new arrangement, and you (through the venue) have paid for the live performance) is really a new arrangement, then what right do you really have? What real- right to perform, but not the right to arrange, pay for in purchasing that blanket license? No world benefit did the live performance venue of a contract to be illusory. There are twists benefit at all! Courts don’t interpret the benefits essence, composers get money and venues get and turns to the contract, details galore, but in I argue, and the nearly uniform general the ability to perform the composers’ songs. Therefore, the purpose of performing under a venue’s blan- practice follows that, the right to arrange for itself.”). ket license is IMPLIED by the blanket license plicit authorization are unclear. plicit authorization \\jciprod01\productn\C\CJP\30-1\CJP101.txt rights society is unavailable to permit live public performances of the unlicensed custom ar- rights society is unavailable to permit live public performances of the unlicensed custom rangements, a musical director would be required to obtain permission for their live public performances of such arrangements.”). school show choir’s performance was a fair use). and SESAC do not authorize the performance of such parodies. The licenses granted by those and SESAC do not authorize the performance perform the separate musical compositions in the organizations grant only the right to publicly authorize licensees to make substantial changes organizations’ repertory. These licenses do not not to the individual songs such as the changes required to create a lyric parody. Whether or on such musical parodies are protected under the fair use doctrine depends on the application, a case by case basis . . . .”) (footnote omitted). ASCAP or BMI are not reasonable, they may initiate a legal action, called a rate hearing, in a ASCAP or BMI are not reasonable, they may fee for the use proposed by the licensee. Rate federal court for a determination of a reasonable are usually initiated by radio and television hearings are often lengthy and expensive and Internet.”) (emphasis omitted). broadcasters and large users of music on the expensive and time-consuming process, which is impractical and unaf - and is impractical which process, time-consuming and expensive for average licensees. fordable musical arrangement not prepared under the authority of the music copyright owner would not musical arrangement not prepared under the authority Charles J. Sanders & Steven R. Gordon, be licensed by ASCAP.”) (footnote omitted); Satire ger in Parodies: Weird Al and the Law of Musical authorizes public performances of pre-recorded music and live perform- music and live of pre-recorded public performances authorizes ances. for some amount of performance flair, the creation of a derivative work of performance flair, the creation for some amount a separate li- changes or alterations will require with more substantial cense from the rightsholder—unless it qualifies as fair use. PROs blanket licenses don’t cover dramatic performances, like musi- don’t cover dramatic performances, PROs blanket licenses cals. 2020] 2020] public performance of a custom song arrangement—like of a public performance for a show or a parody version—itchoir, a cappella group, a PRO can be argued that an arrangement some implicit permission to make license must include that suits the performer. censing/licensing-terms-defined (last visited July 8, 2020) (“ASCAP members grant to AS- censing/licensing-terms-defined (last visited July 8, 2020) (“ASCAP members grant to CAP only the right to license nondramatic performances of their copyrighted musical works. censing (last visited July 8, 2020) (“Whether your music is live, broadcast, transmitted or censing (last visited July 8, 2020) (“Whether covers your performances.”). played via CD’s or videos, your ASCAP license C Y cjp_30-1_42664 Sheet No. 20 Side A 20 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 20 Side B 11/12/2020 09:05:36 M K E- C Y 186 R To 185 OUND S [Vol. [Vol. 30:1 Note that 28-OCT-20 8:34 187 , https://www.easy (May 4, 2012), https:// OLICY OLICY ICENSING P L OMPOSITIONS AND Seq: 32 Seq: C OUNDREEF ONG , S S UBLIC UBLIC USICAL P ASY ), M , E A 56( unknown AW AW AND L IRCULAR 184 , C FFICE O OURNAL OURNAL OF J note 3, at 1697 (explaining an Off Broadway theater, with up to 500 note 3, at 1697 (explaining an Off Broadway Similarly, if you want to use a sound recording in an Similarly, if you want to use a sound 188 supra OPYRIGHT , ORNELL ORNELL C OHN 2 (rev. Jun. 2020), https://www.copyright.gov/circs/circ56a.pdf. To be precise, the 2 (rev. Jun. 2020), https://www.copyright.gov/circs/circ56a.pdf. see also Maverick Recording Co. v. Goldshteyn, No. 05-CV-4523(DGT), 2006 WL What Are the Different Types of Music Licenses? 1004, 1014 (9th Cir. 2001) (“Napster A&M Records, Inc. v. Napster, Inc., 239 F.3d Music Licensing of Existing Recordings K U.S. C - in a musical compo that the rights we’ve discussed To summarize, In addition to these various licenses to use the musical composition, In addition to these various licenses 187 188 184 185 186 exclusive rights also include public display. 17 U.S.C. § 106 (2018). 17 U.S.C. § exclusive rights also include public display. users who download files containing copyrighted music violate plaintiffs’ reproduction users who download files containing copyrighted music violate plaintiffs’ reproduction rights.”); 2166870, at *3 (E.D.N.Y. July 31, 2006) (“Downloading and uploading copyrighted files from ma- a peer-to-peer network constitutes, respectively, reproducing and distributing copyrighted v. Armstrong, No. 3:05-CV- 106.”); London-Sire Records terial in violation of 17 U.S.C. § 1771(JBA), 2006 WL 2349615, at *1 (D. Conn. July 28, 2006) (finding that the unauthorized downloading of music infringed plaintiff’s reproduction rights in the copyrighted works). rightsholder directly, and the typical license fee will depend on the size on the will depend fee license and the typical directly, rightsholder thea- an Off-Off Broadway For example, of the theatre. and prominence $5 to $10 fee between could expect a license 99 seats or fewer, ter, with of a song. per performance www.soundreef.com/en/blog/music-licenses/. Thus, an ASCAP license does not authorize dramatic performances of our members’ works.”). Thus, an ASCAP license does not authorize dramatic performance of individual songs from But note that a PRO license does cover the nondramatic a dramatic work. For example, Napster’s unlicensed filesharing of popular recorded music For example, Napster’s unlicensed the sound recording. violated the exclusive right to copy \\jciprod01\productn\C\CJP\30-1\CJP101.txt 32 seats, could pay between $75 to $250 per week, and an On-Broadway theater could pay be- seats, could pay between $75 to $250 per week, “5% of the gross receipts prorated among all tween $250 and $500 per song per week, or copyrighted songs in the play”). whenever you need a master recording license from the sound recording whenever you need a master recording like a CD or mix-tape, you’ll also rightsholder for an audio-only product, from the musical composition need a mechanical reproduction license rightsholder. - songlicensing.com/pages/help/articles/music-licensing/music-licensing-of-existing-record ings.aspx (last visited July 8, 2020) (“Whenever you make a new recording of an existing recording that someone else made, even if it’s just a small sample (such as audio samples, sition include the exclusive right to make and publicly distribute copies publicly distribute right to make and the exclusive sition include the work, and the exclusive right to publicly perform of the work, the of the work. make a derivative or adaptation exclusive right to CORDINGS make copies of the work you may need either a print license (e.g., to work you may need either a print make copies of the license (e.g., to music), a mechanical reproduction make copies of sheet license (e.g., to of a song), or a synchronization record a cover version you may need a To publicly perform the work, use a song in a video). music publisher. or directly from the songwriter and license from a PRO license directly from or adaptation, you may need a To make a derivative music publisher. the songwriter or recording. The copying of some- there are also licenses to use the sound by a master recording license. one else’s sound recording is authorized cjp_30-1_42664 Sheet No. 20 Side B 20 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 21 Side A 11/12/2020 09:05:36 , S ’ 33 33 SER XPLO- , E ICENSING : A U with VMG L 28-OCT-20 8:34 ONG IXTAPE 192 S M ASY If a master-use license If a master-use license ENERATION Seq: 33 Seq: 191 USIC USIC , G M What Is a Master-Use License? ARRETTA Compare Bridgeport Music, Inc. v. Dimension 189 TILITY TILITY OF D. M unknown What Is a Master License?, E U note 190, at 93 (“While some rights holders may supra note 190, at 93 (“While some rights holders AETANO , OCIAL S & G 18 (2011) (“Absent a legal decision, many mixtapes exist in a 18 (2011) (“Absent a legal decision, many mixtapes note 188 (“By obtaining a synch license and a master-use license, note 188 (“By obtaining a synch license and ARRETTA ATANIA & M supra note 133, at 262 (discussing the “complex ‘three-tiered system,’ catego- OPYRIGHT D. C C In other words, music streaming is a digital public per- music streaming is a digital public In other words, 193 supra ATANIA C NLINE For non-interactive streaming services, like Pandora, a statutory For non-interactive streaming services, ATTHEW O Whether a license is required for sampling is a question that pro- is required for sampling is a question Whether a license See 106(6), 114 (2018). 17 U.S.C. §§ Reid, Wunderlich, M The question has created a circuit split. / (“to use a portion of (Oct. 2, 2018), https://exploration.io/what-is-a-master-use-license 194 As discussed above, in addition to the exclusive right to copy the in addition to the exclusive right As discussed above, The legality of creating a mix-tape or digitally sampling another’s sampling another’s mix-tape or digitally of creating a The legality 190 192 193 194 189 190 191 UIDE TO M K formance for which the sound recording copyright holder has an exclu- the sound recording copyright holder formance for which provisions for services, the law has separate sive right. For streaming demand)—and“interactive services”(i.e., music on “non-interactive” ser- vices. is indeed required, the rightsholder has the unfettered right to deny a the rightsholder has the unfettered is indeed required, fee. or may charge an unlimited license license altogether rizing license requirements for digital audio transmissions of sound recordings into separate rizing license requirements for digital audio transmissions of sound recordings into separate rates for (1) interactive services, (2) non-interactive subscription transmissions, and (3) non- interactive non-subscription transmissions”) (footnotes omitted). Films, 410 F.3d 792, 801 (6th Cir. 2005) (“Get a license or do not sample.”) Films, 410 F.3d 792, 801 (6th Cir. 2005) (“Get 884, 886 (9th Cir. 2016) (rejecting Bridgeport Salsoul, LLC v. Ciccone, 824 F.3d 871, 880, copying—noMusic’s “bright-line rule” prohibiting “any unauthorized how trivial,” and matter sound recordings). applying a de minimis exception for copyrighted liminal space between copyright infringement and fair use, the intellectual property equivalent liminal space between copyright infringement of Schrodinger’s cat.”) (footnote omitted). a copyrighted sound recording (a sample) in a new sound recording . . . [one] will need both a a copyrighted sound recording (a sample) in a for use of the composition AND the sound master-use license and a mechanical license recording”). G karaoke tracks, or background tracks), you need a master license . . . . Whenever you need a karaoke tracks, or background tracks), you need as CDs, digital downloads, and streams), you master license for an audio-only product (such also need a mechanical license.”). Jacob Wunderlich, \\jciprod01\productn\C\CJP\30-1\CJP101.txt audiovisual work, like a video, you will need both a master recording recording both a master need you will a video, like work, audiovisual license—which a synchronization license and need to acquire you will appropriate rightsholder(s). from the - https://www.easysonglicensing.com/pages/help/articles/music-licensing/what-is-a-master-li cense.aspx (last visited July 8, 2020) (“Note that master licensing can be challenging because, any by law, master rights holders maintain total control of their works. This means they can set fee, take all the time they need, and reject the license outright.”). sound recording, federal law also offers a limited right to publicly per- federal law also offers a limited right sound recording, (i.e., music recording by digital audio transmission form the sound streaming). recorded music occupies a gray zone between infringement and fair infringement a gray zone between music occupies recorded use. RATION grant mixtapers free licenses for noncommercial uses, others may charge a fee ranging from grant mixtapers free licenses for noncommercial hundreds to thousands of dollars. Rights holders also have the option to withhold composition and sampling licenses from mixtapers.”); vokes strong responses; it is a fraught question. vokes strong responses; 2020] 2020] the rights to both the composition and the sound recording are granted for use within the the rights to both the composition and the [audiovisual] project.”). C Y cjp_30-1_42664 Sheet No. 21 Side A 21 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 21 Side B 11/12/2020 09:05:36 M K C Y See (Aug. 22, ECTION BY ENATE AND S Note that S [Vol. [Vol. 30:1 28-OCT-20 8:34 198 XCHANGE For interactive For interactive E 196 EPORT AND EMBERS OF OUND , R M OLICY OLICY , S P Seq: 34 Seq: ANKING R OODLATTE UBLIC UBLIC G A $1.6 Billion Spotify Lawsuit Is Based P OB (Mar. 14, 2018, 12:28 PM), https://www.the (Mar. 14, 2018, 12:28 PM), https://www.the - , https://www.copyright.gov/rulemaking/mma HAIRMEN AND ERGE unknown FFICE AW AW AND C See also B V L O HE There is no one-stop-shopping for music li- There is no one-stop-shopping , T SoundExchange collects and administers the administers and collects SoundExchange BY THE Designation of Mechanical Licensing Collective and Digital Designation of Mechanical Licensing Collective - (Dec. 13, 2015), https://www.nytimes.com/2015/12/14/busi - (2018), https://www.copyright.gov/legislation/mma_confer 199 195 OPYRIGHT note 124, § 5:23 (“[I]n order to engage in digital pho- 5:23 (“[I]n order to supra note 124, § 200 IMES , Spotify IPO Filing Reveals How Insanely Complicated It Is to Li- Spotify IPO Filing Reveals How Insanely Complicated OURNAL OURNAL OF J CHOA H.R. 1551 OMMITTEES , N.Y. T C For qualified digital music providers, the 2018 Music Mod- providers, the 2018 digital music For qualified & O 197 note 133, at 262. ORNELL ORNELL NALYSIS OF C BRAMS UDICIARY A A Note that Figure 4 simplifies the sound recording right to publicly perform by digital 17 U.S.C. § 114(d)(3); see also Sarah Jeong, 17 U.S.C. § 115-264, 132 Stat. 3676 (codified at 17 Music Modernization Act of 2018, Pub. L. No. - 114(d)(2); see also Ben Sisario, For Pandora, Ruling on Streaming Roy 17 U.S.C. § William Glanz, You Have Questions. We Have Answers. J supra 199 200 197 198 195 196 OUSE ECTION whether to facilitate streaming performances or downloads. whether to facilitate ernization Act introduced a new blanket compulsory mechanical licens- mechanical a new blanket compulsory Act introduced ernization musical works— reproduction and distribution of ing system for the ness/media/for-pandora-ruling-onwebcasting-royalty-rates-is-crucial.html. ness/media/for-pandora-ruling-onwebcasting-royalty-rates-is-crucial.html. ence_report.pdf. on a Law Made for Player Pianos - transmission. Technically, the law distinguishes between (1) interactive services, (2) non-inter active subscription transmissions, and (3) non-interactive non-subscription transmissions. Reid, § 115 (2018)). Licenses become available January 1, 2021 and are administered by a 115 (2018)). Licenses become available January U.S.C. § new mechanical licensing entity. alty Rates Is Crucial Licensee Coordinator, U.S. C license rate is available. rate is license norecord delivery (such as permanent or limited downloads), the digital music provider must norecord delivery (such as permanent or limited downloads), the digital music provider must also get permission from the copyright owner of the sound recording (unless the digital music the provider makes its own sound recordings). In order to engage in interactive streaming, - digital music provider must also get a license to publicly perform the musical works in ques a tion (through a performing rights organization such as ASCAP or BMI), and it must get license to publicly perform the sound recordings from the sound recording copyright owner.”) (footnotes omitted). royalties for digital performances of sound recordings. of sound for digital performances royalties streaming services, like Spotify, a statutory license is not available, and license is not available, a statutory services, like Spotify, streaming the use license fee or deny an unconstrained can demand the rightsholder altogether. S H \\jciprod01\productn\C\CJP\30-1\CJP101.txt 34 designations/ (last visited July 8, 2020). verge.com/2018/3/14/17117160/spotify-mechanical-license-copyright-wixen-explainer verge.com/2018/3/14/17117160/spotify-mechanical-license-copyright-wixen-explainer has to negotiate with individual labels and art- (“When it comes to sound recordings, Spotify ists.”); Michelle Castillo, https://www.cnbc.com/2018/02/28/how- cense Music Rights, CNBC (Feb. 28, 2018, 5:44 PM), (“[Spotify] has paid more than $9.7 billion in spotify-licenses-and-pays-for-music-rights.html since it launched in 2006.”). royalties to artists, music labels and publishers -have-questions-we-have-answers/. 2018), https://www.soundexchange.com/2018/08/22/you this new license does not include the sound recording, which is still re- not include the sound recording, this new license does license. quires a separate censing. Figure 4 below summarizes the various rights and rightsholders below summarizes the various rights censing. Figure 4 for copyrighted music. cjp_30-1_42664 Sheet No. 21 Side B 21 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 22 Side A 11/12/2020 09:05:36 , . by 35 35 AY- OHN transmission digital audio services (e.g., for qualifying (e.g., streaming) SoundExchange) Exclusive right to License for Digital publicly perform Compulsory license Audio Transmission , 22 U. D 28-OCT-20 8:34 Sound recording Q Q reproduce recording) (e.g., record use an existing License (e.g., to Exclusive right to Master Recording company or artist) Negotiated license I DD DD Music licensing expert Seq: 35 Seq: USIC USIC 201 · M Copyright in music . ASCAP) restaurant) decree (e.g., l play a song in a License (e.g., to publicly perform Exclusive right to Negotiated license under DOJ consent Public Performance Copyright creates a divisible and ODD ODD I 202 TILITY TILITY OF unknown U The original author is often not the current The original author is often not the . Musical songwriter) (e.g., music publisher or composition 203 License (e.g., to Synchronization Negotiated license make a cover song) OCIAL □□□□ □□□□ S 1---: 1---: 1 . , reproduce Mechanical Reproduction and Figure 4 reflects that the original author is often not and Figure 4 reflects that the original License (e.g., to under §115 (e.g., Exclusive right to make a cover song) Harry Fox Agency) Compulsory license ICENSES FOR COPYRIGHTED MUSIC AND LICENSING ENTITIES 204 l note 3, at 562 (“If you know the name of the song, or you managed to supra note 3, at 562 (“If you know the name of the , . 547, 570 (1997) (“Under the modern divisibility rule, it is entirely possible that at 581 (“Licensing music may sound as simple as knowing the name of the song at 581 (“Licensing music may sound as simple OHN 4: L EV Mark A. Lemley, Dealing with Overlapping Copyrights on the Internet This presumes a single author. the appropriate rightsholder can Note that identifying K Id. . Finding, and then negotiating with, the appropriate rightsholder can Finding, and then negotiating with, songwriter) (e.g., music publisher or sheet music) L. R 203 204 201 202 to make copies of Negotiated license Print License (e.g., IGURE M K □□□□ DD F the standard licensing entity. We still await a single database that can tell the standard licensing entity. We still unrelated entities will own different exclusive rights to the same copyrighted work. Party A unrelated entities will own different exclusive rights to the same copyrighted work. Party may own the exclusive right to reproduce the work in copies, while party B owns certain adaptation rights, and party C owns public performance rights in the work.”). rightsholder, be particularly challenging when a copyright is jointly held by two or more people. K you want, calling the performance rights society to find out who controls the rights, and ob- you want, calling the performance rights society it’s rarely that simple in practice. Any number of taining the proper license. It sounds easy, but of a project that contains copyrighted things may come up that will delay the completion music.”). \\jciprod01\productn\C\CJP\30-1\CJP101.txt discover it without too much trouble, the next thing you need to know is who controls the discover it without too much trouble, the next do you need to deal to obtain a license? This is rights to the song. In other words, with whom expect. If you already know the answer, you are not as easy a question to answer as you might be in for a rude awakening.”). way ahead of the game. If you don’t, you may supra note 3, at 563 (“[I]t is becoming more difficult for anyone to know who owns or controls by what song, as publishing interests of an increasing number of songs are being retained - songwriters and an increasing number of songs are becoming the subject of split copy rights[.]”) (emphasis omitted). be a time-consuming and frustrating process. be a time-consuming and frustrating TON Bob Kohn acknowledges that paying a license fee may sound easy, “but Bob Kohn acknowledges that paying it’s rarely that simple in practice.” 2020] 2020] assignable bundle of rights. C Y cjp_30-1_42664 Sheet No. 22 Side A 22 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 22 Side B 11/12/2020 09:05:36 M K C Y HE : T OVIES [Vol. [Vol. 30:1 M 28-OCT-20 8:34 note 110, at 16 (“Our Synchronization 209 OLICY OLICY supra P , Seq: 36 Seq: UCCESS AND THE FFICE , S A master-use license for a O UBLIC UBLIC Licensing vexation isn’t re- vexation Licensing P 208 ONEY 205 note 124, §§ 5:24–5:25. supra note 124, §§ , M , OPYRIGHT USIC The fee to use a musical composition The fee to use a musical composition CHOA unknown AW AW AND , M 210 L , U.S. C & O 6 (2008), https://www.ascap.com/~/media/Files/Pdf/career RABEC B BRAMS OUNSEL EALS EFF . C ” D 207 EN note 142, at 242 (“The fees for synchronization licenses are really all OURNAL OURNAL OF ILM J G & J note 3, at 581. F supra , RABEC supra Bob Kohn recounts a familiar tale: recounts a familiar Bob Kohn B USIC IN , ORNELL ORNELL 206 at 484–85 can (“Whatever the fee structure, songs with higher inherent values [M]usic publishers are well aware of the frustrations that aware of the frustrations are well [M]usic publishers down copy- trying to track experience when producers of a publisher on the other side right owners. A music of a producer express a long sigh phone call will hear that nine or ten phone calls, he learns relief when, after the publisher. That’s the good news. he finally located is learns the bad news, that the song Then the producer fi- three other publishers. When he also controlled by also publishers, he discovers that he nally finds all the and to clear his particular use requires a print license the the news that none of them control then gets hit with print rights! “M C FFICE OF THE OHN ODD ASSMAN T P The 2018 Music Modernization Act calls for the creation of a new musical database The 2018 Music Modernization Act calls for O K Id. Finding the appropriate rightsholder(s) is only the first step. The Finding the appropriate rightsholder(s) 209 210 205 206 207 208 ASICS OF sound recording in a film is often between $15,000 and $70,000, depend- sound recording in a film is often between nature of the use. ing on the artist’s budget and the -development/m_m_s_m.pdf (“[R]ecord companies normally charge between $15,000 and -development/m_m_s_m.pdf (“[R]ecord companies normally charge between $15,000 the $70,000 for the use of existing master recordings in a major studio film but, depending on stature of the artist, the length of the use, the music budget and how the recording is being used, these fees can be greater or less.”). containing information such as the title of a work, its copyright owner and shares owned, and containing information such as the title of a work, This yet-to-be 115(d)(3)(E)(i). 17 U.S.C. § contact information for the copyright owner(s). will be managed by a new mechanical created publicly available database of rightsholders licensing collecting society. A A music copyright owner’s ability to determine generally command higher fees for their use. on his experience and access to information the value of a particular song will vary depending The value of a song has both quantitative and about the value of other musical compositions. is qualitative factors, both adding up to the present value of the licensing revenue the song expected to generate during the remainder of the life of the copyright.”). you who holds which particular right. particular which who holds you licenses for a musical composition, unlike mechanical licenses, are not licenses for a musical composition, constrained by a statutory rate. B \\jciprod01\productn\C\CJP\30-1\CJP101.txt 36 served for the uninitiated; even for professionals, the process can be the process even for professionals, the uninitiated; served for daunting. next step is negotiating the license fee—whichnext step is negotiating the license can vary widely. When a license, the price at which a song’s song’s use is not subject to a statutory use will be authorized is unconstrained. over the board, and they vary with exactly how the song is used, which media you want, how over the board, and they vary with exactly how the song is used, which media you want, how long you want to use it, and the importance of the song.”). rules for music licensing are complex and daunting even for those familiar with the terrain.”). rules for music licensing are complex and daunting cjp_30-1_42664 Sheet No. 22 Side B 22 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 23 Side A 11/12/2020 09:05:36 37 37 HERAPY T RACTICE IN USIC P 28-OCT-20 8:34 USIC M M It is axiomatic The next Part The next HERAPY 215 213 T SES OF U USIC M Seq: 37 Seq: UIDELINES FOR USIC USIC If the song is used during used during song is If the G Cultural and generational Cultural and generational M 211 And not all experiences with And not all experiences in 214 , 216 HERAPEUTIC supra note 17, at 180 (“Music is a complex T UIDELINES FOR G TILITY TILITY OF unknown in U , note 209, at 6 (“The synchronization fees charged by music note 209, at 6 (“The synchronization fees charged OCIAL S 252, 272 (Joke Bradt ed., 2013) (“There is no one type of music 252, 272 (Joke Bradt ed., 2013) (“There is no XEMPTION FOR Burn Care for Children The more important the rightsholder thinks the rightsholder thinks important the The more supra , E 217 ARE 212 C RABEC supra note 3, at 486 (“The more important the song is in relation to its , 168, 173 (Lillian Eyre ed., 2013) (“One of the most common questions asked note 142, at 243 (“Of course, if it’s an incredibly hot, recent hit song, and the note 142, at 243 (“Of course, if it’s an incredibly & B note 3, at 10 (“A person’s preference for a particular type or types of supra note 3, at 10 (“A person’s preference for a note 3, at 10 (“[M]usic is universal, but it is not a universal language”); supra note 3, at 10 (“[M]usic is universal, but it is ROPOSED EDIATRIC OHN , , P Bridget Doak, Children and Adolescents with Emotional and Behavioral Disor- K P EALTH supra LAIR LAIR RABEC , H C See See id. at 172 (“Some adolescents report that listening to loud, fast music helps them (“The fees charged by publishers are almost always higher than other uses of music Id. (“The fees charged by publishers are almost always See C B Musical expression may be universal and may exist across cultures, may be universal and may exist Musical expression III. 215 216 217 212 213 214 211 ENTAL ASSMAN RACTICE IN M K which is often copyrighted music. which is often copyrighted music are the same. the opening and closing credits the license can be as little as $30,000 or can be as little as the license and closing credits the opening as $500,000—dependingas much artistic rele- the importance and on the song. vance of publishers for major studio films are usually between $15,000 and $60,000 (with the majority publishers for major studio films are usually lower if the music budget is small or higher if the ranging from $20,000 to $45,000) but can be if the use is under the opening or closing song is used several times in the motion picture, to the plot or particular scene of the motion credits, if the song is a major hit, or if it is vital area as the fees are negotiated in the context of picture. There are no hard and fast rules in this licensed at very different rates for different each individual film; the same song may be film, foreign film, film festival license only, projects (i.e. major studio release, independent web production, or student film).”). film company is salivating over it, these figures can get very high into six figures.”). film company is salivating over it, these figures ders in an Inpatient Psychiatric Setting to become calm. This seems to be opposite the conventional thinking that slow, soft music - induces the relaxation response . . . . [But i]t is possible that rapid rhythms may have a para - doxical effect in overstimulating subcortical processes that promote relaxation when adoles cents listen to rapid, repetitive music.”); Fancourt, in a film and usually range from between $30,000 to $65,000 for synchronization and video in a film and usually range from between $30,000 upon many of the factors mentioned earlier rights, but each negotiation and final price depends of the song, whether there are replacement (i.e. budget of the film, music budget, importance opening credit songs is also used as the title of songs available, etc.). If the title of one of these the story line of the song) the fees are increased the film (but the film’s plot is not based on further (i.e. from $75,000 to over $500,000).”). discusses the therapeutic importance of using patient preferred music— patient preferred of using the therapeutic importance discusses M P \\jciprod01\productn\C\CJP\30-1\CJP101.txt or tempo that works for all patients.”). intended use, the more money the copyright owner can charge in exchange for the license.”); intended use, the more money the copyright P forces exert a strong influence on musical preferences. forces exert a strong in a film can vary from $15,000 to $60,000. $15,000 vary from film can in a but musical preference is not universal. but musical preference of a music therapist who works with adolescents is: ‘What kind of music do you use?’ The of a music therapist who works with adolescents is: ‘What kind of music do you use?’ answer is: ‘It depends.’ The best way to find out the adolescent’s preferred music is to ask.”). music depends on familiarity. Musical preference is, therefore, associated with age, cultural music depends on familiarity. Musical preference group, and peer group.”). Annette Whitehead-Pleaux, 2020] 2020] song’s use is, the more the rightsholder will charge. rightsholder will is, the more the song’s use that different people like different music. that different people C Y cjp_30-1_42664 Sheet No. 23 Side A 23 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 23 Side B 11/12/2020 09:05:36 M K C Y 224 But 220 [Vol. [Vol. 30:1 UIDELINES FOR 28-OCT-20 8:34 but it is also it is also but 218 OLICY OLICY P can be therapeutically can be therapeutically Seq: 38 Seq: 222 UBLIC UBLIC P Sometimes a therapist may want a therapist may Sometimes 449, 489 (Lillian Eyre ed., 2013) (“While supra note 1, at 52 (“The challenge is to select 219 unknown EALTH AW AW AND H L note 9, at 458 (“Because music is such a powerful marker note 9, at 458 (“Because music is such a powerful ENTAL M OURNAL OURNAL OF supra note 64, at 515 (“[In lyric substitution, t]he selection of the song J . art. I, § 8, cl. 8. . art. I, § RACTICE IN P Either way, music selection matters; music isn’t fungible. matters; music music selection Either way, note 3, at 10 (“[P]referred music is music that is most often used by supra note 3, at 10 (“[P]referred music is music supra note 3, at 10–11- (“In order for interventions to be efficacious, it is im ONST And sometimes the therapeutically appropriate music is the therapeutically appropriate And sometimes , , , in G Kathleen M. Murphy, Adults with Substance Use Disorders 221 Gfeller & Davis, supra McFerran, ORNELL ORNELL 223 C LAIR LAIR HERAPY See U.S. C C See See, e.g., Gfeller & Davis, supra note 9, at 458 (“For example, there are individuals See C T Copyright is a limited privilege, not a full property right. The Con- privilege, not a full property Copyright is a limited Musical preference matters not only to the client, only to not matters preference Musical 223 224 220 221 222 218 219 USIC The musical association, whether good or bad, association, whether The musical relevant. needs to be carefully made, since changing the words to a song that has existing meaning for a needs to be carefully made, since changing the words to a song that has existing meaning for young person can be counterproductive. If the song lyrics are already important and helpful, the then this technique can effectively disrupt an existing association that may not result in best therapeutic outcome. Alternately, if the associations are with the pleasure of substance use, then the song may reactivate a desire for using substances and even strengthen that desire. - Awareness about existing associations is therefore required in order to consider contraindica tions.”) (citation omitted). of culture, and because it can elicit powerful emotions, one type of music is not acceptable for of culture, and because it can elicit powerful all clients.”). the Nazi Holocaust. For persons with this partic- who have lost family members or ancestors to (such as Wagner’s ‘Ride of the Valkyries,’ ular life experience, there are musical selections that could result in tremendous emotional which was once played in concentration camps) turmoil. Or there are specific musical selections that may be associated with traumatic events for a person who suffers from post-traumatic stress disorder.”) (citation omitted). music therapy can be extremely beneficial in substance abuse treatment, the use of music can music therapy can be extremely beneficial in sections of several methods, songs be potentially harmful. As noted in the contraindication change mood, and induce cravings.”). used in treatment can induce memories of use, M intervention: singing in a church choir is a different experience to listening to hip hop, rapping, a church choir is a different experience to listening intervention: singing in concert or having the orchestra, visiting a jazz bar, going to a classical playing the violin in an different types of It is important that distinctions between radio playing in the background. as we cannot assume the to music in research studies are made engagement with or exposure same biological responses to all types of ‘music.’”). \\jciprod01\productn\C\CJP\30-1\CJP101.txt 38 relevant to the therapeutic objective. to the therapeutic relevant portant to determine the preferred music for individual clients. It is the preferred music that is portant to determine the preferred music for individual to the treatment regimen, at least ini- more likely to encourage participation and commitment responses, it is the music with which individu- tially. Although many types of music may elicit potential to evoke emotional reactions and, als are familiar that seems to have the greatest omitted). subsequently, motivate participation.”) (citation people and is well integrated into their lives. . . . Music that is not integrated into a person’s people and is well integrated into their lives. or may even be offensive, resulting in inat- life may simply have no effect on that individual tention, agitation, or disengagement.”); Gfeller, preferred, appropriate in complexity, within music that is culturally meaningful, stylistically or groups, and appropriate for a given therapeu- the abilities and interests of individual clients omitted). tic objective.”) (emphasis omitted) (citations other times, music without a preexisting association is therapeutically is therapeutically a preexisting association music without other times, preferred. to use familiar and preferred music to help connect with a client. music to help and preferred to use familiar someone else’s copyrighted music. someone else’s copyrighted Times” to “Au- that copyright is secured “for limited stitution prescribes of Science.” of “promot[ing] the Progress thors” for the purpose cjp_30-1_42664 Sheet No. 23 Side B 23 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 24 Side A 11/12/2020 09:05:36 39 39 229 OPY- C 28-OCT-20 8:34 And sound ATRY ON , P 230 ATRY F. P Making available cop- Making available Seq: 39 Seq: An Economic Analysis of Copy- . S9066 (daily ed. July 29, 1996) USIC USIC 228 ILLIAM EC To ensure that face-to-face To ensure that face-to-face note 225, § 11:49 (“This legislation note 225, § M . R 226 ONG supra , TILITY TILITY OF ATRY unknown For example, certain non-profit public certain non-profit For example, Federal law also exempts public per- Federal law also U 231 225 227 OCIAL S note 98, § 7.0.4; 4 W supra note 98, § . 325, 326 (1989) (discussing tradeoffs of “limiting access to a , TUD S OLDSTEIN EGAL For example, mom-and-pop shops are protected by a statutory For example, mom-and-pop shops 232 17 U.S.C. § 121 (2018). See also P 17 U.S.C. § 110(3) (exempting “performance of a nondramatic literary or musical 17 U.S.C. § 114(b) (2018). 17 U.S.C. § See, e.g., William M. Landes & Richard A. Posner, See, e.g., G 17 U.S.C. §§ 110(1)–(4) exempts four types of non-profit perform- (2018). The statute 110(1) (exempting “performance or display of a work by instructors or 17 U.S.C. § 142 C 110(8) (2018). See also 17 U.S.C. § To prevent copyright from undermining the public good, the law public good, the undermining the copyright from To prevent As a matter of copyright policy, we don’t want high transaction As a matter of copyright policy, § 14:33, Westlaw (database updated Mar. 2020) (“Section 110 contains many important 229 230 231 232 225 226 227 228 M K teaching is not impaired by copyright law, the statute provides an express by copyright law, the statute teaching is not impaired activities. exemption for such work against the benefits of providing incentives to create the work in the first place”). formances like reading the local newspaper on the radio for individuals the local newspaper on the radio formances like reading and other disabilities. with visual impairments performances are exempt under copyright. performances are work or of a dramatico-musical work of a religious nature, or display of a work, in the course work or of a dramatico-musical work of a religious nature, or display of a work, in the course of services at a place of worship or other religious assembly”). right Law, 18 J. L ances: (1) face-to-face teaching activities; (2) non-profit educational broadcasting and distance ances: (1) face-to-face teaching activities; (2) during a religious service at a place of worship; learning; (3) performance of religious music commercial advantage (i.e., no admission and (4) performances that lack any direct or indirect charged and no performers paid). of a nonprofit educational institution, in pupils in the course of face-to-face teaching activities . . .”). a classroom or similar place devoted to instruction - was motivated by book publishers’ poor or nonexistent response to requests for use by educa tional institutions for the blind and was worked out by the Association of American Publishers and the National Federation of the Blind.”) (footnote omitted). limitations on the public performance right, designed to permit socially desirable uses of copy- limitations on the public performance right, designed organizations.”). righted works by educational or other nonprofit There is also a blanket exemption for an otherwise unauthorized public exemption for an otherwise There is also a blanket in the course of religious services. performance of music \\jciprod01\productn\C\CJP\30-1\CJP101.txt recordings used in educational television programs by public broadcast- educational television programs recordings used in ing stations are also protected. RIGHT Copyright is a limited privilege extended to authors for the purpose of the purpose for to authors extended privilege a limited is Copyright is an in- works. Copyright socially valuable the creation of encouraging the public good. tool to promote strumental pro-social uses. shields certain costs for the user to thwart socially valuable uses of copyrighted works, costs for the user to thwart socially low economic value to the right- especially those uses that have a sholder. (remarks of Sen. Chafee) (quoting Register of Copyrights, Marybeth Peters, that “[b]lind and (remarks of Sen. Chafee) (quoting Register of need for prompt and timely access as soon as physically handicapped readers have a legitimate general reading public[,]” thus an exemption is possible after works become available to the that blind people need”). needed to “permit the speedy access to information ies of works in specialized formats for the blind or other persons with formats for the blind or ies of works in specialized liability. braille) is also exempted from copyright disabilities (e.g., 2020] 2020] C Y cjp_30-1_42664 Sheet No. 24 Side A 24 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 24 Side B 11/12/2020 09:05:36 M K C Y The And 13, 13 Copy- 234 239 235 [Vol. [Vol. 30:1 28-OCT-20 8:34 HERAPY T USIC The Copyright/Patent Music Therapy: A Useful J. M OLICY OLICY L A statutory safe har- safe A statutory ’ P See also Feist Publ’ns, Inc., v. NT 233 The exclusive rights en- Seq: 40 Seq: , 2 I 238 UBLIC UBLIC P 1, 4 (2016) (noting the “legislative policy RTS unknown AW AW AND L . J.L. & A OLUM . 611, 650 (2014) (suggesting “the useful article doctrine is “Courts Have Twisted Themselves into Knots”: U.S. Copyright EV Functional tools and useful articles are not pro- Functional tools and useful articles Thus when music is used as a therapeutic tool by Thus when music is used as a therapeutic , 40 C 236 237 OURNAL OURNAL OF . L. R J ICH Ashwani Kumar Goyal, Geeta Yadav & Sarita Yadav, Ashwani Kumar Goyal, Geeta Yadav & Sarita 17 U.S.C. §§ 101, 113(b) (2018). I acknowledge that certain types of functions— Jane C. Ginsburg, ORNELL ORNELL C 240 See . . . in original works of au- 102 (2018) (“Copyright protection subsists 17 U.S.C. § 302 (2018) (duration of copyright). 17 U.S.C. § See 17 U.S.C. § 110(5) (2018). 17 U.S.C. § 108(a) (2018). 17 U.S.C. § of a nondramatic musical work 110(6) (2018) (exempting “performance 17 U.S.C. § See The formula for a statutory exemption is thus: a socially valuable a statutory exemption is thus: a socially The formula for it setting, music is more than mere entertainment; In the therapeutic 237 238 239 240 233 234 235 236 like conveying information—are excluded from the statute’s definition of a “useful article.” choice to exclude functional items from the copyright domain, thus confining them to the choice to exclude functional items from the copyright domain, thus confining them to realm of patents, or, more often, to the public domain”); Viva R. Moffat, Boundary, 48 U. R dure for an additional 70 years after the author’s death, which means dure for an additional 70 years after copyright for all of our lives. most modern music will be under (2012). bor exists for libraries to make a single archival copy of a work. a single archival for libraries to make bor exists Rural Tel. Serv. Co., 499 U.S. 340, 346 (1991) (“[T]he requisite level of creativity is ex- Rural Tel. Serv. Co., 499 U.S. 340, 346 (1991) (“[T]he requisite level of creativity is tremely low; even a slight amount will suffice.”). thorship fixed in any tangible medium of expression . . . .”). Protection for Applied Art by a governmental body or a nonprofit agricultural or horticultural organization, in the course by a governmental body or a nonprofit agricultural or exhibition conducted by such body or of an annual agricultural or horticultural fair organization . . .”). exemption for small businesses that play music. that play small businesses for exemption copyright bargain seeks to foster creative expression, and it is fundamen- copyright bargain seeks to foster creative and therapeutic uses of musical tally a poor fit when applied to functional works. a credentialed professional, such use should be exempted from copyright. a credentialed professional, such use anticipated in the copyright bargain. Functional uses of music were not attaches to all works that are original Copyright protection automatically and fixed—both of which are low thresholds. tected by copyright. \\jciprod01\productn\C\CJP\30-1\CJP101.txt 40 right policy reflects the practical reality that the potential revenue from the potential revenue reality that reflects the practical right policy thwart the costs would the high transaction is low, and these activities uses. the user or low lost either high transaction costs for use coupled with below, therapeutic (or both). As explored revenue for the rightsholder a range of health this formula. Music therapy offers uses of music satisfy The from the biomedical to the psychotherapeutic. and wellness benefits, uses of music, cou- for therapists to license various high transaction cost artists, justify a potential lost revenue to musical pled with the low law. carveout under copyright is a functional tool. playing music at an annual horticultural fair is also protected. horticultural fair at an annual playing music Therapeutic Tool for Health, Physical and Mental Growth Therapeutic Tool for Health, Physical and Mental cjp_30-1_42664 Sheet No. 24 Side B 24 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 25 Side A 11/12/2020 09:05:36 41 41 Thera- 248 28-OCT-20 8:34 , 113th Cong. 247 The transaction 244 Seq: 41 Seq: USIC USIC A PRO license would not A PRO license would M 242 § 1:119, Westlaw (database last updated The Harry Fox Agency licenses The Harry Fox Agency And for a non-Broadway public 243 246 TILITY TILITY OF OPYRIGHT unknown U C For music therapists, it is an impractical therapists, it is For music 241 OCIAL A songwriter typically receives half of the 9.1¢ A songwriter typically receives half ATRY ON note 150. S , P supra note 141, § typi- 4:254 (“The royalties paid on sheet music 245 Some Essential Facts About Music Performance Rights Organiza- Some Essential Facts About Music Performance supra ATRY LLP (Sept. 26, 2017), https://payorplay.foxrothschild.com/2017/09/ LLP (Sept. 26, 2017), https://payorplay.foxrothschild.com/2017/09/ HITLOCK F. P Music Licensing Under Title 17 (Part I & II): Hearing Before the Subcomm. Music Licensing Under Title 17 (Part I & II): supra note 3, at 1697. & W , OTHSCHILD ILLIAM Paul J. Bezilla, at 561 (“No permission is required to use a musical composition if the use is R AKS OHN W Harry Fox Agency retains some amount This is, of course, not technically correct; the K Id. See, e.g., See See id. History of HFA, OX 247 As noted above, no license is needed for fair use of music. As noted above, no license is needed Doctrinally it is problematic to apply copyright to music therapists’ therapists’ to music apply copyright to is problematic it Doctrinally 246 247 248 241 242 243 244 245 M K cover a slideshow recording that synchronizes a hospice patient’s family recording that synchronizes a hospice cover a slideshow photos along with And it isn’t clear whether a PRO her favorite song. of songs modified to the semi-public performance license would apply purposes. and adapted for therapeutic articles/music/some-essential-facts-about-music-performance-rights-organizations/. articles/music/some-essential-facts-about-music-performance-rights-organizations/. for collecting and administering the license. As William Patry quips, “the old joke reminds us for collecting and administering the license. As William Patry quips, “the old joke reminds that collecting societies are called collecting societies and not distribution societies for good reason.” 1 W on Courts, Intellectual Prop., and the Internet of the Comm. on the Judiciary on Courts, Intellectual Prop., and the Internet (2014) (statement of Cary Sherman, Chairman and CEO, Recording Industry Association of (2014) (statement of Cary Sherman, Chairman America). peutically adaptive uses of music arguably constitute fair use.peutically adaptive uses of music arguably Under the per song for a mechanical license. cally are only a nickel or dime for each copy sold.”). cally are only a nickel or dime for each copy costs to individually license the various uses of music is prohibitive. license the various uses of music costs to individually or performer would licensing fees to the songwriter Moreover, any lost typically receives at most a dime for be modest. Recall that a songwriter copies of sheet music. meant to channel works away from copyright law—towardmeant to channel works away from copyright public domain, patent law, or the omitted). or perhaps to a sui generis regime”) (emphasis \\jciprod01\productn\C\CJP\30-1\CJP101.txt and prohibitive process. A music therapist’s use of music is so varied use of music is music therapist’s process. A and prohibitive her uses of to cover all of or BMI is unlikely from ASCAP that a license not authorize creat- a PRO’s blanket license would music. For example, photocopying song lyrics. ing a mixtape or tools, and realistically it is unworkable. Securing permissions to use mu- permissions unworkable. Securing realistically it is tools, and process—even and time-consuming to be a complex sic is known for professionals. entertainment Mar. 2020). Nonetheless, this illustrates the point that the songwriter—whom copyright law is designed to incentivize—stands to lose only a modest amount. 2020] 2020] performance of a song, a typical license is between $5 and $10 per performance of a song, a typical song. the recording of cover songs, but these mechanical licenses are issued on songs, but these mechanical licenses the recording of cover rather than as a blanket license. a song-by-song basis, considered a fair use. However, the determination of whether a particular use falls within the considered a fair use. However, the determination of whether a particular use falls within not fair use doctrine is often not an easy one, and should not be made lightly, and certainly a without the advice of competent legal counsel. The consequences of being wrong may be costly lawsuit for copyright infringement.”) (emphasis omitted). tions, F C Y cjp_30-1_42664 Sheet No. 25 Side A 25 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 25 Side B 11/12/2020 09:05:36 M K C Y A 253 252 [Vol. [Vol. 30:1 28-OCT-20 8:34 In contrast 250 OLICY OLICY Therapists have seen See, e.g., Lennon v. Premise P 255 Seq: 42 Seq: 251 UBLIC UBLIC P unknown AW AW AND L Moreover, a therapeutic artifact, like a legacy artifact, like a legacy a therapeutic Moreover, note 142, at 251 (“The problem is there’s no bright-line test of note 142, at 251 (“The problem is there’s no 249 OURNAL OURNAL OF supra J , note 3, at 1630 (“The application of the doctrine of fair use in any supra note 3, at 1630 (“The application of the doctrine , OHN ASSMAN Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994) (explaining fair Campbell v. Acuff-Rose Music, Inc., 510 U.S. P K ORNELL ORNELL Music therapists have heard stories about churches and schools have heard stories about churches Music therapists C Telephone Interview with Senior Advisor Policy and Research Consultant, American Telephone Interview with Senior Advisor Policy Telephone Interview with a Music Therapy Research Faculty Member (Oct. 16, 2019). Telephone Conference Interview with Four Music Therapy Clinicians at a Pediatric Id. Id. See See See 254 I spoke with several music therapists as part of this research. music therapists as part of this I spoke with several Even if you win, it still feels like you’ve lost. To avoid the copy- Even if you win, it still feels like 252 253 254 255 256 249 250 251 256 whether something’s a fair use, so you can’t be sure that you’re okay. And it will be expensive whether something’s a fair use, so you can’t be after you.”). to prove you’re right if the other guy comes Music Therapy Association (AMTA) (Oct. 8, 2019). I spoke with a policy consultant for the Music Therapy Association (AMTA) (Oct. 8, AMTA, and she shared with me her experiences with clearing copyright licenses for music therapists. She also put me in contact with six music therapy clinicians. Two of the music - therapists are tenured faculty at research universities. Four of the interviewees are music ther - apy clinicians who work at a pediatric hospital. I spoke with these music therapists on condi tion of anonymity. Hospital (Oct. 24, 2019). work at the same in-patient facility and preferred These interviewees to speak with me together on a conference call, rather than individually. that fair use doesn’t save you from the aggravation and cost of a lawsuit. that fair use doesn’t save you from takes to prevail on a fair use defense, Because of the time and energy it are nervous and reluctant to rely upon several therapists told me that they it. four-factor fair use analysis, a therapeutic use is a “further purpose” and purpose” a “further use is therapeutic a use analysis, fair four-factor character.” “different recording of a patient singing her favorite song, is unlikely to affect de- is unlikely to her favorite song, of a patient singing recording hoc, case- the ad song. Nevertheless, the original copyrighted mand for for insufficient protection fair use provides of evaluating by-case basis legal ad- admonished to get are often activities. Non-lawyers therapeutic lawyer make the fair use determination. vice and to let a Another reported that it is her understanding that fair use is “very subjec- that it is her understanding that fair Another reported tive.” \\jciprod01\productn\C\CJP\30-1\CJP101.txt 42 particular case will, therefore, be largely judgmental, and the best a lawyer can do is to review particular case will, therefore, be largely judgmental, an assessment of the risk his client takes by the case books for any cases on point and making owner.”). using a work without the permission of the copyright with fair use uncertainty, a statutory exemption would eliminate the a statutory exemption would with fair use uncertainty, guesswork—and an attorney. the need to hire being sued for copyright infringement, which makes some therapists un- being sued for copyright infringement, use defense. certain about the efficacy of the fair consistent message from these therapists is their profound uncertainty from these therapists is their profound consistent message One music thera- copyright and reliability of fair use. about the scope of “very unclear.” she thinks fair use is “muddy” and pist told me that use inquires whether the new work “adds something new, with a further purpose or different use inquires whether the new work “adds something meaning, or message; it asks, in other words, character, altering the first with new expression, ‘transformative’”).whether and to what extent the new work is 2008) (concluding use of 15-second portion Media Corp., 556 F. Supp. 2d 310, 327 (S.D.N.Y. did not usurp market for licensing of song for of song in movie for transformative purpose traditional uses). cjp_30-1_42664 Sheet No. 25 Side B 25 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 26 Side A 11/12/2020 09:05:36 ex & 43 43 No Mu- 262 259 supra note supra note 157 (2d ed. Copyright . 185, 185–86 28-OCT-20 8:34 UFDERHEIDE A 258 ROBS . 1087, 1087 (2007) OPYRIGHT . P EV C ATRICIA ONTEMP ACK IN Seq: 43 Seq: Some therapists told me Some therapists USIC USIC B see also P & C 260 M AW . 161, 189 (2017) (“The courts apply the ALANCE EV B , 70 L UT ex post determination does not generate any P . L. R TILITY TILITY OF unknown RIZ U ONCLUSION But they candidly admit they aren’t fully But they candidly OW TO C 261 : H SE OCIAL S U AIR - me that she discour music therapist told Another F 257 Rulifying Fair Use, 59 A note 254. ECLAIMING note 254. note 254. , R supra Telephone Interview with a Music Therapy Research Faculty Member, Telephone Interview with a Music Therapy Research Faculty Member, Telephone Conference Interview with Four Music Therapy Clinicians at a Pediatric Id. Id. , 85 N.C. L. R See, e.g., Michael W. Carroll, Fixing Fair Use ASZI Other music therapists confessed that while they recognize the law’s confessed that while they recognize Other music therapists Not all therapeutic uses of music implicate copyright law. Pure im- Not all therapeutic uses of music implicate J supra supra 260 261 262 257 258 259 ETER M K P 2018) (“Changing the balance of copyright involves building up fair-use practice.”). comfortable with that conclusion; they aren’t uncomfortable occupying a that conclusion; they aren’t uncomfortable comfortable with breath, cross their fingers, and just gray area in the law. They hold their clients won’t get in trouble. hope they, their employers, and their - 253; Telephone Conference Interview with Four Music Therapy Clinicians at a Pediatric Hos pital, - 253; Telephone Conference Interview with Four Music Therapy Clinicians at a Pediatric Hos pital, Hospital, ages patients from posting therapy recordings on social media due to on social media therapy recordings from posting ages patients to family members concerns: the potential heartache copyright liability risk.” her employer is just “too much to and headache to sic therapists agree. sic therapists agree. begrudgingly take the risk. uncertainty, they \\jciprod01\productn\C\CJP\30-1\CJP101.txt (2007) (“Because fair use relies upon a vague, multi-factor test, it is often impossible to know (2007) (“Because fair use relies upon a vague, ex ante whether any particular use will qualify as fair.”); guidance for users as to the scope of the legal risk.”) (footnote omitted); Mark A. Lemley, ante guidance for users as to the scope of the legal Should a Licensing Market Require Licensing? four factors of fair use retrospectively, and this four factors of fair use retrospectively, and this right hassle, one music therapist told me that for legacy recordings for recordings legacy that for told me therapist one music hassle, right to avoid domain songs tries to use only public patients, she her pediatric a particular (copyrighted) strongly prefers but if a patient copyright; “be safe she would rather the use because therapist will license song, the sorry.” rather than scholars have roundly criticized fair use as a poor ex ante guide. criticized fair use as a poor ex scholars have roundly provisation or original songwriting do not need anyone’s permission. But provisation or original songwriting who record a modified version of a what about a therapist and client about a terminally ill patient shar- popular song with altered lyrics? What and family via social media? Thera- ing his legacy recording with friends there can be a blend and overlap peutic interventions aren’t static; they individually make the calculus that their client’s therapeutic benefits make the calculus that their client’s they individually risks. outweigh the copyright (“The [fair use] doctrine’s context sensitivity renders it of little value to those who require (“The [fair use] doctrine’s context sensitivity of a proposed use.”); Niva Elkin-Koren & Orit reasonable ex ante certainty about the legality Fischman-Afori, 2020] 2020] one wants to be the test case. C Y cjp_30-1_42664 Sheet No. 26 Side A 26 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36 cjp_30-1_42664 Sheet No. 26 Side B 11/12/2020 09:05:36 M K C Y [Vol. [Vol. 30:1 28-OCT-20 8:34 OLICY OLICY P Seq: 44 Seq: UBLIC UBLIC P unknown AW AW AND L OURNAL OURNAL OF J ORNELL ORNELL C It is well known that copyright’s broad right to exclude, coupled to exclude, coupled broad right known that copyright’s It is well between therapeutic modes. What starts out as original songwriting could songwriting out as original starts What modes. therapeutic between starts out as song. What modifying an existing borrowing and evolve into into re- room could evolve a private hospital favorite song in singing a preparations. gift during end-of-life song as a legacy cording that power- attorneys’ fees, exert damages and prospect of statutory with the clinical field, and Music therapy is a relatively new ful chilling forces. to better understand are giving us new tools modern research techniques in the ther- Copyright is an unwelcomed interference the power of music. awareness and growing calls for more mental health apeutic process. The impediments and in favor of removing unnecessary treatment counsel harbor protection uses of music warrant safe confusion. Therapeutic needed. a new statutory exemption is under copyright law: \\jciprod01\productn\C\CJP\30-1\CJP101.txt 44 cjp_30-1_42664 Sheet No. 26 Side B 26 Side Sheet No. cjp_30-1_42664 11/12/2020 09:05:36