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I Own Therefore I Am: Copyright, Personality, and Soul Music in the Digital Commons

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I Own Therefore I Am: Copyright, Personality, and Soul Music in the Digital Commons Fordham Intellectual Property, Media and Entertainment Law Journal Volume 20 Volume XX Number 2 Volume XX Book 2 Article 1 2009 I Own Therefore I Am: Copyright, Personality, and Soul Music in the Digital Commons David Dante Troutt Rutgers School of Law (Newark) Follow this and additional works at: https://ir.lawnet.fordham.edu/iplj Part of the Entertainment, Arts, and Sports Law Commons, and the Intellectual Property Law Commons Recommended Citation David Dante Troutt, I Own Therefore I Am: Copyright, Personality, and Soul Music in the Digital Commons, 20 Fordham Intell. Prop. Media & Ent. L.J. 373 (2009). Available at: https://ir.lawnet.fordham.edu/iplj/vol20/iss2/1 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Intellectual Property, Media and Entertainment Law Journal by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. I Own Therefore I Am: Copyright, Personality, and Soul Music in the Digital Commons Cover Page Footnote I benefited from the time and insights of several colleagues who read and commented on drafts of this Article, including Sonia Katyal, Sabrina Saffrin, Alan Hyde, Dennis Kim-Prieto, Twila Perry, Jim Pope, Suzanne Kim, John Leubsdorf, Brandon Paradise, and Gizelle Jacobs. I wish to thank Markis Abraham, Jihwan Kim, and Neil Shah for their extraordinary research assistance and dedication. As always,I am indebted to my wife Shawn and my daughters for their patient support. This article is available in Fordham Intellectual Property, Media and Entertainment Law Journal: https://ir.lawnet.fordham.edu/iplj/vol20/iss2/1 C01_TROUTT_3-9-10_FINAL (DO NOT DELETE) 3/31/2010 1:04 PM I Own Therefore I Am: Copyright, Personality, and Soul Music in the Digital Commons David Dante Troutt INTRODUCTION ............................................................................. 374 I. THEORETICAL CONCEPTIONS OF COPYRIGHT AUTHORSHIP AND ARTISTIC PERSONALITY .................................................. 380 A. Labor, Utility and the Economic “Author” .................. 381 B. Authorial Personality .................................................... 386 C. The Hegelian Turn and the Author’s Personhood ........ 389 D. The Musician’s Personality Interest and Appropriative Harm ............................................................................. 390 II. OWNERSHIP CAPTURE, BLACK MUSICAL AUTHORS, AND THE FRACTURE OF PERSONALITY: A SUBALTERN HISTORY ........... 395 A. Cultural Capture and the Miner’s First Canaries: Spirituals and Minstrelsy in the Nineteenth Century .... 397 B. Legal Capture: Nineteenth Century Copyright and Passage of the 1909 Act ................................................ 399 C. Performance, the Phonograph, and Radio Under the 1909 Act ........................................................................ 403 1. Jazz Music ............................................................. 409 2. Rock and Roll & Rhythm and Blues ..................... 414 A PDF version of this Article is available online at http://iplj.net/blog/archives/ volumexx/book2. Visit http://iplj.net/blog/archives for access to the IPLJ archive. Professor of Law and Justice John J. Francis Scholar, Rutgers School of Law (Newark). I benefited from the time and insights of several colleagues who read and commented on drafts of this Article, including Sonia Katyal, Sabrina Saffrin, Alan Hyde, Dennis Kim-Prieto, Twila Perry, Jim Pope, Suzanne Kim, John Leubsdorf, Brandon Paradise, and Gizelle Jacobs. I wish to thank Markis Abraham, Jihwan Kim, and Neil Shah for their extraordinary research assistance and dedication. As always, I am indebted to my wife Shawn and my daughters for their patient support. All mistakes are mine. 373 C01_TROUTT_3-9-10_FINAL (DO NOT DELETE) 3/31/2010 1:04 PM 374 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. 20:373 3. Soul Music ............................................................. 419 III. THE 1976 COPYRIGHT ACT AND THE EFFECT OF HIP-HOP AND INDIE ENTREPRENEURS ........................................................... 421 A. The 1976 Act: Resistance, Entrepreneurism and Conglomeration ............................................................ 423 1. The 1970s and ’80s ................................................ 425 2. Hip-Hop Entrepreneurs ......................................... 427 B. Epilogue: Summary Elements, Authorship, and Personality .................................................................... 431 IV. INDEPENDENT AUTHORS AMID INDUSTRY CHANGES AND PROPOSED LEGAL REFORMS ................................................... 435 A. Developments: Three Thefts Upon Artists .................... 436 B. Independence and the Contemporary Singer- Songwriter, Citizen Cope .............................................. 441 C. Reform Proposals ......................................................... 444 1. Those That Radically Alter/Overhaul Current Copyright Rules ..................................................... 445 2. Those That Complement or Modify the Current Copyright Rules ..................................................... 448 CONCLUSION ................................................................................. 451 INTRODUCTION The problem is in this business that you don’t own your product. If you record, it’s the record company that owns it; if you play at a club, it’s the nightclub owners who charge people to listen to you, and then they tell you your music is not catching on. This has been my greatest problem—being shortchanged because I’m a Negro, not because I can’t produce. Here I am being used as a Negro who can play jazz, and all the people I recorded for and worked for act as if they own me and my product. They have been guilty of making me believe I shouldn’t have the profits from my product simply because they own the channels of production. They act like I owe them something for letting me express myself with my music, like the artist is supposed to suffer and not to live in clean, comfortable situations. The insanity of C01_TROUTT_3-9-10_FINAL (DO NOT DELETE) 3/31/2010 1:04 PM 2010] I OWN THEREFORE I AM 375 living in America is that ownership is really strength. It’s who owns who’s strongest in America. That’s why it’s so hard to lend your music to that kind of existence. —Ornette Coleman1 The problem that jazz great Ornette Coleman describes in the above quote from the 1960s reflects a continuing legal problem that has received scant attention in the academic literature: music copyright law has done very little to empower or incentivize musical authors. In fact, its rules have traditionally favored non- author intermediaries. Since music was first covered by copyright in 1831, only composers held ownership rights in their music while publishers could be assigned a substantial share.2 After the introduction of the phonograph and radio, record companies controlled the remainder of rights in composition.3 Sound recordings, which were not even protected by copyright until 1972,4 are typically assigned contractually to the record label by the artist.5 And rights in musical performance have always been secondary, though performance remains the means by which most musicians are compensated for their talents.6 Thus, Coleman’s 1 A.B. SPELLMAN, FOUR LIVES IN THE BEBOP BUSINESS 129–31 (1966). 2 See Charles W. Joiner, Analysis, Criticism, Comparison and Suggested Corrections of the Copyright Law of the United States Relative to Mechanical Reproduction of Music, 2 COPYRIGHT L. SYMP. (ASCAP) 43, 45–47 (1939). 3 Id. at 46–47. 4 See Act of Oct. 15, 1971, Pub. L. No. 92-140, 85 Stat. 391 (codified as amended at 17 U.S.C. §§ 1, 5, 19, 20, 26, 101 (2006)). 5 Mary LaFrance, Authorship and Termination Rights in Sound Recordings, 75 S. CAL. L. REV. 375, 377 (2002). 6 See Music on the Internet: Is There an Upside to Downloading? Hearing Before the S. Comm. on the Judiciary, 106th Cong. 14 (2000) [hereinafter Music on the Internet] (“In all cases the publicity generated by having recordings available and promoted on radio, created an audience for my live performances. My performing work is how I make my living. Even though I’ve recorded over twenty-five records, I cannot support my family on record royalties alone.” (statement of Roger McGuinn, founder of the Byrds)); Raymond Shih Ray Ku, The Creative Destruction of Copyright: Napster and the New Economics of Digital Technology, 69 U. CHI. L. REV. 263, 308–09 (2002) (“For the artist, free music is a complementary good that increases ticket sales.”); John Perry Barlow, The Economy of Ideas, WIRED, Mar. 1994, http://www.wired.com/wired/archive/2.03/ economy.ideas_pr.html (“We [the Grateful Dead] have been letting people tape our concerts since the early seventies, but instead of reducing the demand for our product, we are now the largest concert draw in America, a fact that is at least in part attributable to the popularity generated by those tapes.”); Janis Ian, The Internet Debacle—An Alternate C01_TROUTT_3-9-10_FINAL (DO NOT DELETE) 3/31/2010 1:04 PM 376 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. 20:373 lament is a historic and contemporary sentiment, whose factual predicates contradict most of what we understand about the rationale and substance of copyright law. That understanding may be a result of failing adequately to consider music copyright from the music author’s perspective and to see that
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