CHAPTER I

INTRODUCTION: ROLL OVER BEETHOVEN1

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What is music law? Unlike tax law, or election law, tort law, or securities law, there is no easily-defined set of legal principles that one can point to as making up the relevant body of law in the subject area. It is perhaps more like “the law of the horse,” criticized by Judge Frank Easterbrook as an ineffective way to organize and analyze what might otherwise be unrelated legal principles,2 in that many of the legal principles affecting participants in the music industry find their sources in multiple disciplines and often are general principles that are not limited in their application to the world of music. However, within general bodies of law such as copyright, contract, antitrust, and the right of publicity, legislatures and courts have carved out an identifiable set of rules that apply particularly to musical compositions, sound recordings, musicians, songwriters, publishers, labels, studio producers and other participants in the music industry. This textbook presumes a basic background in copyright3 and contract, which is essential to understanding the more complex rules that apply in the context of the music industry, but takes on a broad array of legal issues and examines their application in the creation, distribution, and consumption of music. The law and the industry are both evolving rapidly, and it is thus an exciting and dynamic area of law to follow and analyze; we hope that you find it as fascinating as we do. We begin this chapter with some introductory materials: the Copyright Clause of the U.S. Constitution and the basic provisions of the 1976

1 Chuck Berry (1956); released by the Beatles on WITH THE BEATLES (1963). 2 Frank H. Easterbrook, Cyberspace and the Law of the Horse, 1996 U. CHI. LEGAL F. 207 (1996). As Judge Easterbrook put it, “Lots of cases deal with sales of horses; others deal with people kicked by horses; still more deal with the licensing and racing of horses, or with the care veterinarians give to horses, or with prizes at horse shows. Any effort to collect these strands into a course on ‘The Law of the Horse’ is doomed to be shallow and to miss unifying principles. Teaching 100 percent of the cases on people kicked by horses will not convey the law of torts very well. Far better for most students—better, even, for those who plan to go into the horse trade—to take courses in property, torts, commercial transactions, and the like, adding to the diet of horse cases a smattering of transactions in cucumbers, cats, coal, and cribs. Only by putting the law of the horse in the context of broader rules about commercial endeavors could one really understand the law about horses.” Id. at 207–08. Unlike the hypothetical “law of the horse” course criticized by Judge Easterbrook, which lacks a unifying principle, a music law course provides an opportunity to focus on how the law has shaped the music industry in the U.S. and how the music industry has shaped U.S. law over the course of the past century. 3 For those students who have not previously taken a course in copyright, we suggest a review of COPYRIGHT IN A NUTSHELL as a complement to this textbook, which provides a basic understanding of general copyright principles.

1 2 INTRODUCTION CH. I

Copyright Act with which one must be familiar to gain an understanding of the more complex copyright provisions relevant to the music industry. We then move to an overview of the many different components and participants within today’s music industry, and a historical overview of the development of the conception of music as property. Chapters 2 and 3 introduce the state of legal protection for music and those involved in creating and distributing it at the turn of the 20th century, immediately before and after the enactment of the Copyright Act of 1909. These early cases and statutory provisions are essential to an understanding of why and how the music industry developed into its current state, and they illustrate some common themes in music law that are repeated in current case law and in the debate over the future of the industry. Chapter 2 focuses on legal issues regarding duplication and performance of sound recordings, and Chapter 3 focuses on the performance right in compositions and the legal issues that arose from the formation of performing rights organizations to collectively enforce and administer the performance right. In Chapter 4, the textbook covers the grant of limited federal copyright protection to sound recordings and the continuing debate over performance rights in sound recordings, as well as some of the legal issues arising out of the provisions of the 1976 Copyright Act. Chapter 5 addresses the multitude of legal and business issues that arose as music entered the digital era, and the next two chapters turn to music licensing issues, with Chapter 6 introducing statutory licensing in the context of the digital public performance right in sound recordings and Chapter 7 covering the mechanical right in compositions and the implications of the recently- enacted Music Modernization Act. Chapter 8 provides an overview of what we refer to as “garden variety” music copyright cases, where the owner of a composition or sound recording claims that a new work is substantially similar to the original work. In Chapter 9, the textbook introduces the state law right of publicity and federal Lanham Act and their roles in the music industry, including protections against misappropriation of a recording artist’s voice, band name disputes, and use of songs in political campaigns. Chapter 10 introduces recording and songwriting agreements and addresses provisions relating to ownership of copyright, duration of the contractual relationship, and compensation that are often at issue in recording and songwriting agreements. Chapter 11 continues the discussion of contract issues within the recording and publishing branches of the music industry, focusing on provisions ranging from the obligation to exploit (or lack thereof) to choice of law. Finally, Chapter 12 provides a brief introduction to additional legal issues in the music industry that have arisen over the years and that are likely to be relevant in the coming years as the industry continues to change, including copyright termination rights, state statutes

CH. I INTRODUCTION 3 governing artist representatives, consolidation in the industry, and payola statutes. The materials within this textbook were designed to illustrate some of the most important legal issues faced by today’s musicians and other participants in the music industry and how those issues parallel and/or differ from those that have arisen throughout the history of the industry. It is our hope that they will also spark discussion of how the law and the industry might or should evolve in the future in the face of new technologies and conceptions of music, new demands and uses by consumers, and new models for providing access to musical works.

CONSIDER AS YOU READ . . . • As applied to music, how does the U.S. Constitution’s Copyright Clause support the creation of new works and the ability of the public to access those works? • Why and how are recordings of musical performances (sound recordings) and compositions treated in distinct manners under U.S. law? • Is a more simplified model for the music industry either desirable or possible? Does it matter from whose perspective the question is considered? • What lessons or models can we take from history (even ancient history) to better understand how the industry developed into its current state in the U.S. and inform our vision of what the music industry might look like in the future?

A. UNITED STATES CONSTITUTION: COPYRIGHT CLAUSE

The Congress shall have Power . . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. . . U.S. CONSTITUTION, Article I, Section 8, clause 8.

———————

4 INTRODUCTION CH. I

B. UNITED STATES COPYRIGHT ACT: DEFINITIONS OF RELEVANT TERMS (§ 101) AND SCOPE OF COPYRIGHT PROTECTION (§ 106) Even though we will not get to the current interpretation of U.S. copyright law until a few chapters down the road, we note two components of modern copyright law that are relevant in considering the historical materials that follow. First, Section 101 provides definitions of terms. Some of these definitions will seem obvious to you, but the nature of what is protected by copyright is heavily influenced by statutes that have changed over time, and thus the meanings of terms and phrases used in copyright law are important—as is the manner in which those meanings have changed and adapted to technological innovations (or failed to change and adapt, as we will see in some of the most difficult legal cases). Keep the current definitions of terms in mind as you read the sections and chapters below that illustrate how music copyright developed over the past century and how technological innovation continuously tested the boundaries of existing definitions and understandings of what copyright law did, and did not, protect. Second, Section 106 defines the scope of the rights granted to owners of various types of copyrightable works. Pay particular attention to the current scope of rights granted to sound recordings as compared to other types of copyrightable works, including musical compositions. The historical summary in Section D and the materials in Chapters 2 and 3 will provide some perspective as to why and how the scope of copyright protection for compositions and sound recordings ended up differing in important respects. Many of the disputes involving music copyright, under the 1909 Copyright Act and under current law, are fundamentally grounded both in the key definitions and the limitations of scope contained in Sections 101 and 106 and their predecessors within U.S. copyright law. Note, too, that music is often treated differently from other types of copyrighted works; it is important to recognize those differences and to pay particular attention to whether a provision applies to a composition or a sound recording (or both).

CH. I INTRODUCTION 5

17 U.S.C. § 101. DEFINITIONS

Except as otherwise provided in this title, as used in this title, the following terms and their variant forms mean the following: . . . “Copies” are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed. . . . A work is “created” when it is fixed in a copy or phonorecord for the first time; where a work is prepared over a period of time, the portion of it that has been fixed at any particular time constitutes the work as of that time, and where the work has been prepared in different versions, each version constitutes a separate work. . . . A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission. . . . To “perform” a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible. A “performing rights society” is an association, corporation, or other entity that licenses the public performance of nondramatic musical works on behalf of copyright owners of such works, such as the American Society of Composers, Authors and Publishers (ASCAP), Broadcast Music, Inc. (BMI), and SESAC, Inc. “Phonorecords” are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a

6 INTRODUCTION CH. I

machine or device. The term “phonorecords” includes the material object in which the sounds are first fixed. . . . “Publication” is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication. To perform or display a work “publicly” means— (1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times. . . . “Sound recordings” are works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work, regardless of the nature of the material objects, such as disks, tapes, or other phonorecords, in which they are embodied.

CH. I INTRODUCTION 7

17 U.S.C. § 106. EXCLUSIVE RIGHTS IN COPYRIGHTED WORKS

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

NOTES AND QUESTIONS 1. Is the model adopted by the U.S. Constitution—copyright protection via a “property model” as a means for promoting creation—the best (or only) way to support the creation of new works and make them available to the public? What other models might be effective in promoting the creation of musical works and making them accessible to the public? 2. Note the differing definitions for “copy,” “phonorecord,” and “sound recording” in Section 101 and keep them in mind throughout this textbook. Do the distinctions make sense to you? What questions do they raise? 3. Pay particular attention to the nature of the rights granted to owners of different types of copyrighted works in Section 106, specifically with respect to musical compositions and sound recordings. The materials below will provide some historical context for the different scope of rights for these works. As you read them, think about how you might expand or amend the definitions and nature of rights granted in compositions and sound recordings in the modern era.

8 INTRODUCTION CH. I

C. OVERVIEW OF THE MUSIC INDUSTRY The above provisions of U.S. copyright law hint at the nature and structure of the music industry, as most of the key participants in the industry grew up around the rights protected by law—and the law developed to create or protect new rights as technology changed the industry. The key “players” in the music industry4 are currently expanding and changing at a rapid pace: only several years ago, Spotify was just a European startup that was having trouble making inroads in the U.S. because of licensing issues. As of 2019, it had become the primary source of music for most of the students in our seminar—although only two years before that, YouTube was the most popular source of music for our seminar students. Similarly, while just ten years earlier physical sales constituted about 60% of the revenue in the U.S. recorded music sector, in 2019 that dominance had been replaced by streaming, which constituted 75% of recorded music revenue.

© 2008–18 SoundExchange, used with permission

4 Most references in this textbook are to the popular music industry in the U.S. Other aspects of U.S. music, such as musical theater, opera, jazz, and classical music, involve additional “players” and some unique industry practices due to the nature of those musical forms that are outside the scope of this text. However, the basic distinctions between types of work (composition versus sound recording) and protected rights (reproduction and distribution versus performance) apply broadly to all aspects of music.

CH. I INTRODUCTION 9

© 2019 SoundExchange, charts used with permission

10 INTRODUCTION CH. I

With that caveat about rapid transitions within the industry in recent years that continue today, this section will introduce some of the primary participants in the industry and the roles that they play, in the hope of giving you an overview of the breadth and depth of the music industry. We will also explore what positions some of the key constituencies have taken in the debates over music law and policy that have dominated the industry in the twenty-first century. So, where does your music come from? If your answer is Spotify, or some new service or source launched recently, that is only the tip of the iceberg—it identifies how you access music, but it does not identify the source or the path by which a particular song makes it to your playlist and your ears. You likely know the names of your favorite artists, although you might also listen to genres of music and hear songs by artists that you cannot identify simply by hearing their performance of a song. But do you know who wrote the songs you love? Do you know who produced them, and what label financed the recording of the song and likely owns the copyright to it? Do you know what music publisher owns or administers the rights to the composition? In fact, for a song to make it from an idea in a composer’s head to your ears, a host of different “players” are involved, and the law and/or lawyers play a part at many steps in the process. Even though a composer/songwriter5 and performing artist might be the same person—think of famous singer-songwriters like Bob Dylan and Paul McCartney—both the law and the music business treat them as separate entities, with distinct roles, governing laws, and business structures that apply to their rights and revenues. The product of their work is also viewed as distinct under the law, with different rights applying to “musical works”—i.e., the composition or song, including the notes, chord progressions and lyrics—and to “sound recordings”—i.e., the fixed (recorded) performance of the composition by a performing artist that emanates from your speaker or earbuds. Note that the term “copy” refers to musical works, but “phonorecord” is the term of art used by the Copyright Act to refer to the physical object in which a sound recording is fixed. In the recording business, the term “master recording” is used to refer to the original work that is owned by the copyright owner of the sound recording. A further distinction involves the nature of the rights at issue, with separate players and separate legal rules governing reproduction and distribution rights, on the one hand, and performance rights, on the other hand. Flip back to the provisions of Section 106 of the Copyright Act and

5 Throughout this textbook, we will use the terms “composer” and “songwriter,” as well as the terms “composition” and “song,” interchangeably. Within the popular music genre, the terms “songwriter” and “song” are more common, whereas “composer” and “composition” are used more often in the context of classical music. The Copyright Act uses the term “musical work” to refer exclusively to compositions/songs; within the statute, the term “musical work” does not encompass sound recordings.

CH. I INTRODUCTION 11 you will note that musical works and sound recordings are singled out (among other types of copyrightable works) with distinct rights. For example, not all copyrightable works are granted public performance rights, and the scope of the public performance right granted to sound recordings is narrower than that of musical works. In addition to focusing on who owns or controls the particular right at issue—and note that different rights in the same work may be licensed to and administered by different entities—it is helpful to “follow the money”6 by understanding who gets paid and who is obligated to pay for each type of use of the musical work or sound recording. As you do so, consider the distinct “products” created under copyright law (such as the sound recording and the musical work) and how copyright law handles each of the “activities” that those products may encounter in commerce. The following graphic provides a high-level (and oversimplified) approach to some of the more important commercial activities that occur in the industry: reproduction, distribution & performance. For each of these activities, we have set forth examples of the types of organizations that oversee those activities for both sound recordings and musical works. Think of this as a visual representation of the distinct quadrants of the music industry that have developed in tandem with the legal rights granted to owners of compositions and owners of sound recordings under federal law, with some examples of different entities that own, or are responsible for, administering and enforcing the distinct rights for distinct types of works:

6 Catchphrase made famous in the 1976 film All the President’s Men.

12 INTRODUCTION CH. I

© 2008–2020 MH Presentations, used with permission

The Composition: Music Publishers and Songwriters Of course, as the City of Nashville touts on its web page, “It All Begins with a Song.”7 Once a composer has fixed her idea in some form—whether humming it into a voice recorder, writing notes and lyrics on a page, working with cowriters in a recording studio, or even inking it on the back of a napkin—the musical work is presumptively protected by U.S. copyright. Some composers retain the copyright interest in their musical works; many others assign the copyright to music publishers. Regardless of who owns the copyright, however, music publishers play a primary role in promoting the compositions in their catalog to performing and recording artists and in administering the rights associated with those compositions. Although music publishers started out as entities that focused on publishing printed songbooks and sheet music, their role in today’s music economy stretches far beyond print. In addition, today’s music publishers may own or administer the mechanical rights, synchronization rights, and public performance rights stemming from live, digital, and analog performances of the compositions in their catalog. Revenue is earned

7 See Nashville: Music City home page at https://www.visitmusiccity.com/itallbeginswitha song.

CH. I INTRODUCTION 13 whenever a copy of sheet music is sold (reproduction royalties); whenever a recording of a composition is made and distributed, as in a LP or CD or download (mechanical royalties); whenever a composition is integrated into an audiovisual work, electronic game, or other non-audio usage (synchronization, or “synch,” revenues); and whenever a composition is publicly performed in any manner (performance royalties), among other revenue sources from uses of the composition.8 Sheet music now makes up only a small percentage of music publishing revenues, with revenue from the performance right in musical works—particularly from broadcast radio, but increasingly from digital streaming—making up the greatest share.

U.S. Publishing Industry Revenues (1st Half 2018) (Source: NMPA)

As will be discussed in more detail in Chapter 10, even when the music publisher is assigned the copyright to a composition, it is typical for the publisher and composer to share revenue from most sources 50–50, although shared ownership (co-publishing) arrangements or those in which the composer retains the copyright and the publisher merely administers it can increase the composer’s share. The mechanical right is governed by 17 U.S.C. § 115 and is subject to a statutory license; once the owner of a composition authorizes it to be mechanically reproduced (i.e., recorded), the statute permits anyone else to record it as long as the statutory rate or a separately negotiated rate is paid. In recent years, the Harry Fox Agency has often been the primary entity that administers negotiated mechanical royalties, although the passage of the Music Modernization Act in 2018 created a new “Mechanical Licensing Collective” to provide a central resource for administering a new

8 For example, “grand rights” in a musical work include incorporation of the work in a dramatic presentation, such as in musical theater or opera.

14 INTRODUCTION CH. I blanket license for certain digital mechanical reproductions in the U.S.9 Digital distribution of recorded compositions is included in what “counts” as a mechanical reproduction, and thus, for example, digital downloads of songs and the use of music in cell phone ringtones both implicate the mechanical right. The public performance right in musical works is administered through entities referred to as “performing rights societies” in Section 101 of the Copyright Act, but also known as performing rights organizations, or PROs. The best-known PROs with respect to compositions are ASCAP and BMI, although there are other competing PROs that have developed (e.g. SESAC and GMR). PROs negotiate and enter into agreements with music publishers and composers to license public performances of compositions, and they provide what are often blanket licenses to organizations and venues that permit these licensees to publicly perform all works in the PRO’s catalog. The PROs collect license fees from the variety of entities that publicly perform compositions—ranging from corner bars to the biggest sports arenas to broadcast radio and digital streaming companies, and including live performances and performances of pre- recorded music in the analog and digital realms. They then distribute those revenues to their publisher and composer members, generally on a 50/50 split between publisher and composer for a given work. The history of PROs in the U.S. is discussed in some detail in Chapter 3, including the decades of antitrust regulation of PROs and the complicated rate-setting process that has developed as a result of antitrust oversight. Music publishers and composers also seek out opportunities to license their musical works for use in audiovisual works such as motion pictures, television or cable productions, commercials, and Internet videos. These “synchronization licenses” are typically individually negotiated, with the price varying widely depending upon the manner in which the composition is used, how prominent it will be in the audiovisual work, and how successful the composition has been. The Sound Recording: Performing Artists and Record Labels While what we call music starts with a song, that is typically just the first step towards commercial success. There is also significant value in today’s music industry that results from performances of the song, whether recorded or live, by a performing artist. Revenue earned by songwriters and music publishers is partly reliant upon performing artists (whether the songwriter herself or another person/group) to bring their musical works to life and upon audiences for those performances to make them profitable. Music and the theater have in common one element that distinguishes them from the other arts. . . . [B]oth require the

9 See Chapter 7 for a more detailed introduction to the Section 115 mechanical license and the changes adopted by the 2018 Music Modernization Act.

CH. I INTRODUCTION 15

intervention of outsiders to set before us the patterned ideas of the composer or playwright. Masterpieces may be created by a painter or poet for his own delight, unseen or unsung by any besides himself. But a symphony, like a drama, does not fulful [sic] its meaning unless it is projected by performers before an audience. The printed score of the Brahms First Symphony, or the pregnant pages of Shakespeare’s Macbeth, are merely blueprints of the creators’ intentions, of full value only to exceptionally skilled and imaginative readers. They do not come to life without performers and without audience.10 Just as the fixation of a composition in some medium creates a copyrightable “musical work,” the fixation of a recording of a musical performance creates a copyrightable “sound recording.” Creating a sound recording is often a collective work, involving lead performers, backup singers, studio musicians, sound engineers, and producers—typically making the endeavor both more costly than writing a composition and potentially complicating the ability of any one person to claim “authorship” of the finished recording. Traditionally, most sound recordings have been created pursuant to a recording agreement between the performers and a recording company, commonly referred to as a record label. A “typical” recording agreement gives copyright ownership of the master sound recording to the record label, usually in exchange for an advance guaranty and payment of royalties resulting from sales and licenses of the recording. Income from exploitation of sound recordings, like that from exploitation of compositions, comes from several different sources that involve many different types of entities within the music industry. Importantly, the “bundle of rights” granted by U.S. copyright law in sound recordings is more limited than that granted in compositions. As a result of this difference in the scope of rights granted, the U.S. recording industry was historically structured around a “sales model.” In other words, the industry was designed primarily to promote the sales of recordings, which drove the vast majority of revenue. This contrasted with the publishing industry, which historically benefitted from more diverse sources of significant revenue. Until the creation of a digital performance right in sound recordings and the advent of Internet streaming services, the primary source of revenue for record labels was sales of records (which includes vinyl, cassette and 8-track tape, and CD) and then digital downloads. Record labels distributed the records to third party distributors—record stores, department stores, iTunes—which then sold those records to consumers. Performing artists were contractually entitled to royalties from these sales

10 FREDERICK DORIAN, THE HISTORY OF MUSIC IN PERFORMANCE: THE ART OF MUSICAL INTERPRETATION FROM THE RENAISSANCE TO OUR DAY, Foreword by Eugene Ormandy 7 (W. W. Norton & Company 1966).

16 INTRODUCTION CH. I through their agreements with the labels, but labels deducted their costs (including advances paid to the artists) before paying any royalty to the artists. Recording agreements are discussed in more detail in Chapter 10, including how the traditional structures are changing in the digital era. Another significant difference between the recording and publishing sides of the industry relates to the fact that terrestrial radio stations (i.e., traditional “AM/FM” broadcasters) still pay only composers and music publishers for broadcasts of music. There is no royalty owed under U.S. copyright law to recording artists or labels for the broadcast of their recordings. An important exception to that rule was created in 1995 when a limited digital public performance right was created for sound recordings. With the incredible growth of digital streaming services in recent years, the revenue stream from the digital public performance right now surpasses that from physical sales of records, making up almost seventy- five percent of revenue for U.S. sound recordings by 2018. Digital streaming royalties are administered either by master owners or by SoundExchange, which makes payments directly to record labels, featured artists, and backup musicians. Chapter 6 details the manner in which the digital public performance right in sound recordings is administered.

U.S. Recording Industry Revenues (1st Half 2018) (Source: RIAA)

Licensing of sound recordings for synchronization in motion pictures, television and cable productions, and commercials is also a source of revenue that is typically administered by record labels, with a contractual share of revenues going to the recording artists. These licenses are individually negotiated with licensees, with fees dependent upon similar factors as those relevant to synchronization licenses for compositions.

CH. I INTRODUCTION 17

Other primary sources of revenues for performing artists, and increasingly for record labels, are ancillary to the sale, distribution, or digital public performance rights created by copyright. Significant revenues can be earned from touring—live performances by artists—and merchandising—sales of branded T-shirts, hats, water bottles, etc., that feature the performer’s name, trademark, and image. A nationwide tour often involves the participation of multiple entities, including promoters; venues; ticket vendors; road crews; technical crews; touring musicians; backup singers and dancers; transportation companies; insurers; and advertisers. Merchandising often involves the participation of artistic designers, third-party manufacturers, and both online and physical sales outlets. In addition to those who directly participate in the revenue-generating aspects of the modern music industry, there are a host of additional important roles played by individuals and entities. For example, key policies affecting the music industry are developed through the work of trade organizations and unions, lawyers and lobbyists, Congress, International Treaties, courts, and government agencies like the Copyright Office, Copyright Royalty Board, and Antitrust Division of the Department of Justice. Lawyers, in particular, are involved in almost all aspects of the music industry, from developing legal policy to enforcing property rights to negotiating the contracts that make it possible for the idea of a song to become a product available to the public. The figure below summarizes some of the key players involved in all aspects of the modern music industry, from the creation of the composition through the consumer’s experience of the performance:

18 INTRODUCTION CH. I

For many users (i.e., licensees) of music, it is necessary to obtain a license from both the owner of the musical work and the owner of the sound recording. However, the necessity of licenses from the owners of both works will vary depending upon the nature of the right implicated by the use. If, for example, the owner of a baseball stadium wanted to play John Fogerty’s Centerfield at a game, it could rely solely on a blanket license from the PRO that included that particular composition in its catalog. The stadium would not need any license at all from the owner of the sound recording, as there is no public performance right in sound recordings that applies to performances in physical spaces like stadiums; the public performance right in sound recordings applies only to digital transmissions.11 By contrast, if the producer of a motion picture wished to include Fogerty’s recording of Centerfield in the opening sequence of its film, it would need a synchronization license from the copyright owner of the composition (Fogerty or his music publisher or another assignee of the rights) as well as a license from the copyright owner of the sound recording (Fogerty or his record label or another assignee of the rights). It is easy to see how complicated and fraught with potential error the music licensing process can be, given the variety of rights, owners, assignees, licensees, and administrators that are potentially involved in gaining authority to use a

11 See 17 U.S.C. §§ 106, 114.

CH. I INTRODUCTION 19 single song. In later chapters, we will explore music licensing in more detail, with a focus on the growing use of statutory licensing as an effort to simplify the process for certain types of uses. We have often heard (and said) that if the music industry were to be created from a clean slate today, it would look quite different from what it does now. The modern music industry has many vibrant components that make up the overall marketplace, including the sound recording industry. But sound recordings were not always a significant driver of music law and policy, especially considering that commercial recordings and record labels are a comparatively new addition to our history of musical enjoyment (which dates back centuries). Indeed, the modern record label as we know it did not evolve until the early 20th century, which may be one reason the law has been slower to protect sound recordings. So it is understandable that compositions and those who published them were the first to receive legal protections, and it is the logical starting point for our study of music law from the American perspective. To give you a better understanding of how and why the music industry developed as it has in the U.S., the section below gives you a broad overview of the history of music pertinent to the development of the music industry in America.

20 INTRODUCTION CH. I

D. AMERICAN MUSIC LAW IN HISTORICAL CONTEXT12 The concept of music as a commodity—something that can be owned and controlled, bought and sold, and protected by law from “theft”—is a relatively new one. Music is found in every culture in the world. “Indeed, poets, philosophers, and scientists have contended that music is part of what makes us distinctly human.”13 The first musical instrument was most likely the human voice, but anthropologists have discovered musical instruments that are believed to be as much as 44,000 years old.14 The word “music” itself, derived from the Greek word mousikḕ, meaning (the art) of the Muse,15 reflects a long-standing and deeply ingrained belief in music as a gift from God rather than the creation of any individual human being as an author.16 Music as an Oral Tradition and Divine Inspiration For most of human history, musical works were oral traditions, passed down from generation to generation. As Harvard musicologist Thomas Forrest Kelly notes, “The oldest recording device, and the newest, is the memory; without it, nothing would be possible.”17 The earliest form of musical notation dates back to 1400 BCE in Mesopotamia—or perhaps 1200 BCE in ancient Babylonia, given some dispute over whether representations on the ancient tablet discovered in Mesopotamia were intended as musical notation18—and the ancient Greeks used musical

12 Note that this is only a cursory overview, with some broad generalizations made solely for purposes of conciseness. The cited sources in this section provide a much more detailed and nuanced review of music history and are recommended for those of you who are interested in how music developed as a human art and, ultimately, as a commodity and industry. Of course, as is expected, some of these sources are framed from a particular point of view about what influences directed the development of musical innovation and protection and how and whether music should be protected in the present day; by citing them, we do not mean to take a stand in that debate for purposes of this text. We trust our readers to make their own evaluation of the arguments offered in those sources. 13 DAVID SUISMAN, SELLING SOUNDS: THE COMMERCIAL REVOLUTION IN AMERICAN MUSIC 6– 7 (Harvard University Press 2009). 14 See, e.g., NILS LENNART WALLIN, STEVEN BROWN, & BJÖRN MERKER, THE ORIGINS OF MUSIC 4, 10 (Cambridge: MIT Press 2001) (“It is probably safe to assume that musical instruments are at least as old as anatomically modern humans if not much older.”). 15 Music, Dictionary.com, at http://www.dictionary.com/browse/music (last visited 9/9/19). 16 Michael W. Carroll, Whose Music Is It Anyway?: How We Came to View Musical Expression as a Form of Property, 72 U. CIN. L. REV. 1405, 1426–27 (2004). We highly recommend reading this article in its entirety for a detailed exploration of the development of the concept of music as property. As Carroll explains, the focus here is on the development of music in Western Europe because U.S. copyright law and policy stems from those roots, tracing back through the formation of the publishing industry in England, which was influenced by European conventions adopted in the late Middle Ages and early Renaissance, which in turn was influenced by conventions adopted in ancient Greece and Rome. See id. at 1408 n. 9. 17 THOMAS FORREST KELLY, CAPTURING MUSIC: THE STORY OF NOTATION 3 (W.W. Norton & Co. 2015). 18 See JAMES BOYLE, JENNIFER JENKINS, & KEITH AOKI, TALES FROM THE PUBLIC DOMAIN: THEFT, THE HISTORY OF MUSIC 12 (CreateSpace Independent Publishing Platform February 14,

CH. I INTRODUCTION 21 notation, albeit infrequently, as a historical record of songs. In practice, most music in ancient Greece was likely made up of the repetition of common themes, improvised by individual musicians.19

Close-up of a portion of the original stone at Delphi, Greece, with the second of the two hymns to Apollo. (The music notation is represented by the symbols above the main, uninterrupted line of Greek lettering.)20

Transcription of a portion of the Delphi Hymn of Apollo inscription in modern musical notation from David Binning Monro, The Modes of Ancient Greek Music 134 (Oxford: Clarendon Press 1894), Urbana, Illinois: Project Gutenberg (scanned public domain material from the Google Print Project).21

2017), available at https://law.duke.edu/musiccomic/download/; RICHARD TARUSKIN & CHRISTOPHER H. GIBBS, THE OXFORD HISTORY OF WESTERN MUSIC, COLLEGE EDITION 4 (2d ed. Oxford Univ. Press NY/Oxford 2019). 19 JAMES BOYLE, JENNIFER JENKINS, & KEITH AOKI, TALES FROM THE PUBLIC DOMAIN: THEFT, THE HISTORY OF MUSIC 12–15 (CreateSpace Independent Publishing Platform February 14, 2017), available at https://law.duke.edu/musiccomic/download/. 20 http://en.wikipedia.org/wiki/Image:Delphichymn.jpg photo by Ziggur. 21 Retrieved July 11, 2020, from www.gutenberg.org/files/40288/40288-h/40288-h.htm.

22 INTRODUCTION CH. I

However, the ancient Greeks still sought to impose control over music. Some musical forms were considered too emotional or dangerous; Plato even advanced an argument against musical innovation, asserting that “changes in styles of music are always politically revolutionary.”22 Aristotle agreed with Plato that the state needed to regulate music, urging that the state control the musical curriculum by banning certain instruments (flutes were deemed to be “too exciting”) and teaching only the “ethical” melodies. Although music was viewed as potentially dangerous if it veered too far from cultural norms, the idea of a musician or his patron “owning” a particular melody was absent in ancient times. “The system for generating music was in their view part of a larger, beautiful system created by divine power and which ordered the cosmos. The specific conventions governing musical expression reflected the norms and collective culture of the Greeks and could not be individually appropriated.”23

Statue of Plato in front of the Academy of Athens. Original Work of Leonidas Drosis (d. 1880), photograph by C. Messier 7 February 2016

Similarly, after the Roman Empire rose to power, it embraced music as a part of its everyday culture, but it did not treat music as something that could be “owned.” As in Greek culture, much of both musical performance and instruction was the work of slaves in the Roman Empire; it was in that sense that the Roman elite could own and control the means for creating music (as opposed to owning the musical product itself). The

22 PLATO, THE REPUBLIC, Book 4, 424c at 117 (Cambridge University Press, ed. G.R.F. Ferrari) (dialog of Socrates and Adeimantus). Plato’s dialogue continued by arguing that the guardians of the state should “build their watchtower” in music, because breaking rules in music can easily “become a habit” without people realizing it, and “once the idea of breaking rules has gradually established itself, it seeps imperceptibly into people’s characters and habits. From there it brims over, increasing as it goes, into their contracts with one another. And from contracts, Socrates, it extends its course of wanton disruption to laws and political institutions, until finally it destroys everything in private and public life.” Id. at 424d–e, 117. Socrates’ response was that a disciplined musical education would prevent this parade of horribles, noting that it would be absurd to pass laws about many matters of discipline but that a disciplined education would instill a disciplined approach to all things in adulthood. Id. at 425a–b, 117–18. 23 Michael W. Carroll, Whose Music Is It Anyway?: How We Came to View Musical Expression as a Form of Property, 72 U. CIN. L. REV. 1405, 1424–25, 1427 (2004).

CH. I INTRODUCTION 23 elite in Roman society were patrons of music, funding the development of performers with “star” qualities, but music itself was “viewed as evanescent” rather than being commodified. Thus, unlike the authors of literary texts in ancient Greece and Rome, the identities of composers of music are largely lost to history and no trade in compositions existed, even though the tools were available for preserving compositions with musical notation systems.24 Development of Written Musical Notation and the Role of the Church During the Middle Ages, new emphasis was placed on the creation of musical notation systems, because the ancient Greek notation systems were largely lost to history by the sixth century A.D. This new effort was largely driven by the Church as a means of controlling the forms of music to be performed during services for the purpose of achieving uniformity, although the early Christian Church is also thought to have made a practice of adopting popular melodies for Christian hymns that could be sung at home instead of pagan hymns.25 The Church’s effort to create a system of notation unfolded over several centuries, from about the ninth to the fourteenth centuries, moving from being merely descriptive, with no means of indicating pitch or tempo, to being more and more detailed and prescriptive, using staff notation to convey relative pitch by identifying specific notes to be played and, later, to convey the duration of notes.26 Musicians of the Middle Ages figured out how to make marks on parchment to capture sound in space, an achievement that required extraordinary conceptual leaps and technological advances. What began as a method to represent the general shape of a song evolved over several centuries to become not only a recording but a playback device, allowing musicians to transport music and learn songs they had never heard before.27

24 Id. at 1432–33; JAMES BOYLE, JENNIFER JENKINS, & KEITH AOKI, TALES FROM THE PUBLIC DOMAIN: THEFT, THE HISTORY OF MUSIC 14–15 (CreateSpace Independent Publishing Platform February 14, 2017), available at https://law.duke.edu/musiccomic/download/. 25 Michael W. Carroll, Whose Music Is It Anyway?: How We Came to View Musical Expression as a Form of Property, 72 U. CIN. L. REV. 1405, 1436–43 (2004); JAMES BOYLE, JENNIFER JENKINS, & KEITH AOKI, TALES FROM THE PUBLIC DOMAIN: THEFT, THE HISTORY OF MUSIC 26–29 (CreateSpace Independent Publishing Platform February 14, 2017), available at https://law.duke. edu/musiccomic/download/; C.F. ABDY WILLIAMS, THE STORY OF NOTATION 42–43 (Haskell House Publishers 1969). 26 Michael W. Carroll, Whose Music Is It Anyway?: How We Came to View Musical Expression as a Form of Property, 72 U. CIN. L. REV. 1405, 1440–43 (2004). The early forms of notation that were incapable of conveying pitch, tempo, or duration of notes relied on the longstanding oral tradition, wherein music was learned through listening, repetition, and memorization; these compositions could not be performed based upon the notation alone. See RICHARD TARUSKIN & CHRISTOPHER H. GIBBS, THE OXFORD HISTORY OF WESTERN MUSIC, COLLEGE EDITION 14–33 (2d ed. Oxford Univ. Press NY/Oxford 2019). 27 THOMAS FORREST KELLY, CAPTURING MUSIC: THE STORY OF NOTATION, Preface at xiii (W.W. Norton & Co. 2015); see also RICHARD TARUSKIN & CHRISTOPHER H. GIBBS, THE OXFORD

24 INTRODUCTION CH. I

By the fourteenth century, “a combination of scientific, logical, philosophical, and poetic advances” had coalesced to produce “a standard and universal form of musical notation” that still largely applies in the West today.28 That is not to say that the system of notation developed in the Middle Ages could perfectly transmit the composer’s intended sound of the performance even with increasingly complex indications of pitch, tempo, duration, and emotion. Musical notation, however perfect, can never entirely represent the composer’s meaning. Much must be left to the imagination of the performer . . . . The more emotion and artistic power felt by the composer, the less satisfactory is a mechanical and unintellectual performance . . . . [F]or, as in the drama, so in music, every highly skilled and intellectual performer has his own idea of what the composer intends to convey.29 One telling illustration of the difficulty in creating a system of notation that could fully convey the intended nature of the performance comes from the reign of Emperor Leopold I, a Habsburg who ruled the Holy Roman Empire and was King of Hungary, Croatia, and Bohemia from 1658 until his death in 1705. As the story goes, Leopold had successfully urged his ambassador to Rome to convince the Pope to send him a copy of the famed Miserere of Allegri, which had never been heard outside of the Sistine Chapel. Apparently, Leopold was so disappointed with the performance of the piece that he wrote in anger to the Pope, accusing the chapel master of sending him a different composition in order to keep the true composition a “mystery.” The Pope fired the chapel master on receipt of the letter, but he later allowed a cardinal to plead in the master’s defense that the “style of singing in the Sistine Chapel, and especially in performing the Miserere, was such as could not be expressed by notes, nor taught, nor transmitted to any other place, except by example. . . .” Although the Pope could not understand how the same notes could sound so different when performed in different places, he sent the master’s defense to Vienna, and Leopold ultimately arranged for the Pope to send musicians to Vienna to teach his musicians the proper way of performing the piece.30 Even though musical notation had come far in the centuries since the Church had begun its efforts to standardize liturgical performances, it still did not fully achieve the goal of uniformity across time and distance.

HISTORY OF WESTERN MUSIC, COLLEGE EDITION 3–4 (2d ed. Oxford Univ. Press NY/Oxford 2019) (“What had previously been transmitted from generation to generation through singing and playing came to be partially written down, preserved, and disseminated. This was an enormously important change.”). 28 THOMAS FORREST KELLY, CAPTURING MUSIC: THE STORY OF NOTATION 174, 208 (W.W. Norton & Co. 2015). 29 C.F. ABDY WILLIAMS, THE STORY OF NOTATION 218–19 (Haskell House Publishers 1969). 30 Id. at 219–20.

CH. I INTRODUCTION 25

As noted above, the Church viewed musical notation as a means of regulating the form of performances rather than a means of spurring the creation of new compositions. In this regard, the Church actively sought to suppress forms of musical expression that were not officially sanctioned.31 In spite of its original purpose—limiting music to specific, accepted compositions—the system of notation developed by the Church ended up allowing composers to experiment with new, more complex compositions, and the Church was ultimately not able to suppress the creation of new musical expression, particularly among secular musicians.32 Once a system of musical notation existed, the idea of authorship in music could more readily take root, and it grew as secular musicians gained independence and stature in society over the course of the tenth through fourteenth centuries.33 Development of Musical Performance and Composition as a Profession During the latter part of the Middle Ages, traveling musicians— referred to as minstrels or “jongleurs”—traveled the countryside, providing musical entertainment for audiences ranging from peasants at festivals to nobles at annual banquets. They sang all sorts of ditties, played on various instruments for money, especially for dancers, accompanied the bands of warriors, amused the ladies and nobles in their castles, recounted deeds of valour in rude verse, carried news from town to town, were often the secret messengers of Cupid and always the welcome merry- makers of the people. But they were vagrant, homeless, and, on the whole, despised, even though gladly greeted on all festive occasions for the entertainment they unfailingly provided.34 Joining the minstrels in the late eleventh and twelfth centuries were French nobles—called troubadours—who chose to become traveling musicians, serving as poet-composers who brought along instrumentalists most likely hired from the community of traveling minstrels. Their music focused mainly on expounding upon either courtly love or heroic deeds.

31 Michael W. Carroll, Whose Music Is It Anyway?: How We Came to View Musical Expression as a Form of Property, 72 U. CIN. L. REV. 1405, 1436–37 (2004). 32 JAMES BOYLE, JENNIFER JENKINS, & KEITH AOKI, TALES FROM THE PUBLIC DOMAIN: THEFT, THE HISTORY OF MUSIC 30 (CreateSpace Independent Publishing Platform February 14, 2017), available at https://law.duke.edu/musiccomic/download/; Michael W. Carroll, Whose Music Is It Anyway?: How We Came to View Musical Expression as a Form of Property, 72 U. CIN. L. REV. 1405, 1443 (2004). 33 See, e.g., THOMAS TAPPER & PERCY GOETSCHIUS, ESSENTIALS IN MUSIC HISTORY 79–82 (New York: Charles Scribner’s Sons 1914). 34 Id. at 79–80; see also Michael W. Carroll, Whose Music Is It Anyway?: How We Came to View Musical Expression as a Form of Property, 72 U. CIN. L. REV. 1405, 1444–45 (2004).

26 INTRODUCTION CH. I

Portrait of one of the few female troubadours, Comtessa Beatriz de Dia, a French poet and composer born in 117535

Unlike minstrels and jongleurs, troubadours had more resources to support themselves and greater respect in society. However, the nomadic life of all of these traveling musicians made them more independent from political/religious authorities. As a result, they were considered to be potentially troublesome influences by those in power in the places to which they traveled.36

Troubadour offrant un poème à sa bien-aimée (Troubadour offering a poem to his beloved). Illustration by Master of the Codex Manesse (Foundation Painter), circa 1305–1340.

During the twelfth through fourteenth centuries, with the growth of European cities and formation of universities, many traveling musicians ended up finding employment as town watchmen and timekeepers, using their instruments to announce the arrival of visitors or to warn of danger. They also provided music for both public and private celebrations, and with the emergence of a middle class, musicians gained increased stature and

35 From Bibliothèque Nationale, MS cod. fr. 12473. 36 THOMAS TAPPER & PERCY GOETSCHIUS, ESSENTIALS IN MUSIC HISTORY 79–80 (New York: Charles Scribner’s Sons 1914); Michael W. Carroll, Whose Music Is It Anyway?: How We Came to View Musical Expression as a Form of Property, 72 U. CIN. L. REV. 1405, 1445–46 (2004); RICHARD TARUSKIN & CHRISTOPHER H. GIBBS, THE OXFORD HISTORY OF WESTERN MUSIC, COLLEGE EDITION 36–41 (2d ed. Oxford Univ. Press NY/Oxford 2019).

CH. I INTRODUCTION 27 the demand for their services increased. Starting in Vienna and ultimately spreading throughout Germany, England, and France, these town musicians formed guilds as a means of limiting competition from traveling musicians:37 “The guild was granted an official, regulated monopoly on public performance by the town council, and the exclusive privileges of guild membership, marked by gowns and insignia, made a career as a musician an attractive choice to pursue.”38 Thus, the guilds were able to regulate music within the town walls by limiting who was authorized to perform. One of the enduring legacies of the early “professional” musicians— traveling minstrels and troubadours and more rooted members of musical guilds—was their interest in and advancement of the use of musical instruments. During much of the Middle Ages, when vocal music dominated the Church and folk-song within the home, the traveling musicians and guilds were the only group of musicians who kept alive the tradition of the fiddle and pipe, both alone and in group performances. Their embrace of instrumental music helped to pave the way for the Renaissance period in which instrumental composition flourished.39 The coalescence of growth in stature and independence of secular musicians and development of more complex musical notation systems by the Church began to lead to a more general acceptance of the idea of musical composition as a human art, rather than an activity involving repetition of common themes handed down by the divine. During the late twelfth century, the Notre Dame cathedral in Paris became a center of musical activity, particularly for the development of the notation of polyphonic music, and individual composers began to gain recognition.40 “A significant feature illustrating the importance of this period is the fact that here, for the first time, musical activity steps out of the obscurity of anonymous and collective creation, and enters the stage of individual achievement and personal contribution.”41 By the fourteenth century,

37 See THOMAS TAPPER & PERCY GOETSCHIUS, ESSENTIALS IN MUSIC HISTORY 80 (New York: Charles Scribner’s Sons 1914); Michael W. Carroll, Whose Music Is It Anyway?: How We Came to View Musical Expression as a Form of Property, 72 U. CIN. L. REV. 1405, 1446–47 (2004). 38 Michael W. Carroll, Whose Music Is It Anyway?: How We Came to View Musical Expression as a Form of Property, 72 U. CIN. L. REV. 1405, 1447 (2004). 39 THOMAS TAPPER & PERCY GOETSCHIUS, ESSENTIALS IN MUSIC HISTORY 81–82 (New York: Charles Scribner’s Sons 1914). 40 WILLI APEL, THE NOTATION OF POLYPHONIC MUSIC 900–1600 at 215 (rev. 5th ed., Mediaeval Academy of America, Cambridge MA 1953). For example, Magister Leoninus is credited as being one of the earliest composers of organum—a form of plainchant with harmony—and Magister Perotinus Magnus, a composer of discant, is recognized as one of the earliest composers whose name is attached to individual compositions. Id. Polyphonic music is that which has more than a single line of melody; monophonic music (think of the classic Gregorian chant as an example) consists of only a single line of melody. See, e.g., WILLI APEL, THE NOTATION OF POLYPHONIC MUSIC 900–1600, Introduction at xix–xxiv (rev. 5th ed., Mediaeval Academy of America, Cambridge MA 1953). 41 Id.

28 INTRODUCTION CH. I composition had developed into a recognized art in which individual composers could frequently claim attribution, and the more wealthy composers—often the troubadours, with their aristocratic backgrounds— began to pay to have their compositions transcribed.42 Guild endowments, funded by members, also provided funding for the composition of new musical works, and the guilds began to expand their monopoly to cover the music itself rather than merely the musical performers, complaining when traveling jongleurs borrowed from and reworked popular melodies created by guild members. However, well into the fourteenth century, the general practice was still for composers to freely borrow from one another without permission or attribution.43 Commodification of Printed Music and Legal Protections for Publishers Johannes Gutenberg’s invention of a movable type printing press in about 1440 was another watershed moment in the history of Western music.44 Although more difficult (and less profitable) than book printing, musical printing began by the 1470s.45 The nascent music publishing industry first began to thrive in Italy, buoyed by a combination of the role of the Church as a primary sponsor of composers and musicians during the early Renaissance, the resources invested in artistic creation and innovation within the nobility in Italy, and the central role that Italy played in the trade networks of the time. By about 1530, with improvements in print technology that allowed for a single-impression technique in lieu of the original triple-, and then double-, impression techniques, printed music became “increasingly accessible to middle-class buyers” and music publishing as a commercial enterprise spread to other parts of Europe.46 With the advent of commercial music printing almost five hundred years ago (and thus some five hundred years after the introduction of music writing), reproduction became easier and

42 Michael W. Carroll, Whose Music Is It Anyway?: How We Came to View Musical Expression as a Form of Property, 72 U. CIN. L. REV. 1405, 1449 (2004). 43 Id. at 1450–51. 44 See RICHARD TARUSKIN & CHRISTOPHER H. GIBBS, THE OXFORD HISTORY OF WESTERN MUSIC, COLLEGE EDITION 174–75 (2d ed. Oxford Univ. Press NY/Oxford 2019); Michael W. Carroll, Whose Music Is It Anyway?: How We Came to View Musical Expression as a Form of Property, 72 U. CIN. L. REV. 1405, 1456–57 (2004); JAMES BOYLE, JENNIFER JENKINS, & KEITH AOKI, TALES FROM THE PUBLIC DOMAIN: THEFT, THE HISTORY OF MUSIC 38–39 (CreateSpace Independent Publishing Platform February 14, 2017), available at https://law.duke.edu/musiccomic/download/. 45 See, e.g., JAMES BOYLE, JENNIFER JENKINS, & KEITH AOKI, TALES FROM THE PUBLIC DOMAIN: THEFT, THE HISTORY OF MUSIC 41–42 (CreateSpace Independent Publishing Platform February 14, 2017), available at https://law.duke.edu/musiccomic/download/; Michael W. Carroll, Whose Music Is It Anyway?: How We Came to View Musical Expression as a Form of Property, 72 U. CIN. L. REV. 1405, 1456 (2004). 46 See Michael W. Carroll, Whose Music Is It Anyway?: How We Came to View Musical Expression as a Form of Property, 72 U. CIN. L. REV. 1405, 1454–56, 1457 (2004).

CH. I INTRODUCTION 29

cheaper. . . . Music could now spread much more widely than ever before and much more impersonally.47 As publishers began to embrace printed music, they sought protection from competitors in the form of royal privileges that granted a monopoly on publishing certain types of works within the royal territories.48 At the time, books containing multiple compositions were printed and published, not individual compositions. The main expense in early music publishing was not the cost of creating the composition—patrons or the composer himself bore those costs. Although making printed copies required the same amount of work and expense in those days as type-setting the original printed work, competitors could gain an advantage by waiting to see which compositions within a book of many compositions gained popularity and then supplant sales of the original work by compiling what was essentially a book of “greatest hits.” Because the original publisher had incurred the expense of investing in the publishing of many works, only some of which became popular, it was at a competitive disadvantage if other publishers were allowed to profit from publishing the same works once their popularity was established.49 The royal privilege, or “letter patent,” system created property-like rights for music publishers, but it was not available to all publishers of original works; it was often limited to narrow geographical areas; it typically focused on “exclusive rights to print music using a specific technique or specific type of font”; and privileges could be revoked or expanded to competitors at the whim of the monarch.50 In many parts of Europe and England, licensing requirements—used as a form of censorship—merged with music printing privileges, serving dual purposes of protecting publishers against competition and limiting published works to those approved by the monarch. This system of limited monopolies on publishing also protected publishers, not composers—with the prominent exception of Orlando di Lasso, an Italian composer who in the 1570s was able to obtain the

47 RICHARD TARUSKIN & CHRISTOPHER H. GIBBS, THE OXFORD HISTORY OF WESTERN MUSIC, COLLEGE EDITION 30 (2d ed. Oxford Univ. Press NY/Oxford 2019). 48 One of the first publishers to do so was Petrucci, who created a unique way to print musical scores and, after arguing that his method allowed convenient printing of plainchant (“a thing very important to the Christian religion”), was granted a twenty-year “monopoly over all musical printing in Venice as a reward.” JAMES BOYLE, JENNIFER JENKINS, & KEITH AOKI, TALES FROM THE PUBLIC DOMAIN: THEFT, THE HISTORY OF MUSIC 41–42 (CreateSpace Independent Publishing Platform February 14, 2017), available at https://law.duke.edu/musiccomic/download/. 49 See Michael W. Carroll, Whose Music Is It Anyway?: How We Came to View Musical Expression as a Form of Property, 72 U. CIN. L. REV. 1405, 1468–71, 1486 (2004). We note the similarity of this business model of the early music publishers to the business model that has predominated within the American recording industry, both in terms of the album format (where one “hit” single on an album could drive sales) and in terms of the labels’ practice of signing many new acts with advance monetary guarantees, only a fraction of which are repaid by successful sales. 50 Id. at 1458–60.

30 INTRODUCTION CH. I exclusive right to determine who printed his work, based largely on his close ties to both the French and German courts and an argument for control over the quality of work attributed to him after inaccurate versions of his compositions had been printed. “Lasso set a noteworthy precedent in two respects: (1) he was the first composer to obtain a legal monopoly over publication of his entire body of work and (2) he successfully pursued international publication and legal control over his music across political domains.”51 One of the problems with the system of privileges was that it covered entire books, not individual works, and thus it was often difficult for individual publishers to know what material was subject to privilege and what was free to print. In addition, some privileges came with express limitations on price as a condition of the privilege, so that the monopoly could not be abused. Because privileges were often limited to small geographic areas, publishers would often obtain privileges from multiple authorities to extend the reach of their monopoly. The privilege was also not easy for publishers to enforce. Even where the courts were an available avenue of recourse, like in England, publishers would often go directly to their political patrons for help. In Venice, music publishers often opted for a form of private dispute resolution, where the parties would each name another printer, who would together name a third, and the three would reach a binding decision in the dispute. In spite of the benefits of the royal privileges granted to music publishers, it was not a profitable branch of the early publishing business; it only began to become profitable in the mid-1500s after single-impression printing began to spread throughout Europe and cheaper costs led to increased demand, particularly by the professionals in the emerging middle class.52 This, in turn, led to an increased demand by publishers for new compositions to print. Most composers earned their livelihood through patronage rather than from publication of their works; some composers sought to have their patrons finance the publication of their works in exchange for a dedication, but composers rarely received any share in the profits from publication. In Italy, “[m]any Venetian composers paid for the privilege of having their works printed, and by doing so became partners in the printing venture. These early commissioned works signaled to composers that the middle classes were a supplement for, or even an alternative to, the aristocracy as a source of financial support.”53 Thus, by

51 Michael W. Carroll, Whose Music Is It Anyway?: How We Came to View Musical Expression as a Form of Property, 72 U. CIN. L. REV. 1405, 1461, 1482–83 (2004); see also JAMES BOYLE, JENNIFER JENKINS, & KEITH AOKI, TALES FROM THE PUBLIC DOMAIN: THEFT, THE HISTORY OF MUSIC 44–46 (CreateSpace Independent Publishing Platform February 14, 2017), available at https://law.duke.edu/musiccomic/download/. 52 Carroll, supra n. 47 at 1466–67, 1469, 1472. Notably, for early music publishers, “[p]aper alone represented up to seventy-five percent of the direct costs of production.” Id. at 1471. 53 Id. at 1470–71, 1475–76.

CH. I INTRODUCTION 31 the start of the seventeenth century, the music marketplace—represented by sales of books compiling many compositions—had expanded to reflect the increasing music literacy and expendable income of the growing middle class in England and Europe. Rights Granted to Composers Growing side-by-side with the expanding marketplace for printed compositions was composers’ knowledge that their works could travel to distant places and last beyond their lifetimes, which naturally led to their awareness that they could gain attribution for their authorship of musical works. Some composers sought out publication of their works in the hope of gaining accolades; others sought to prevent publication of their works to maintain some control over their performance. Publishers began to advertise their music books by highlighting individual composers, and the music-buying public began to seek out works by specific composers based on those composers’ reputations.54 Although composers began to gain recognition as authors of compositions during the Renaissance period, they did not (with the important exception of Lasso mentioned above, who gained royal privileges giving him control over his body of work in the late sixteenth century) have any legal basis for exercising control over their creative works. “The formation of a bourgeois listening and performing public (that is, a body of people with the surplus income, leisure time and interest to devote to musical activities) created sufficient demand for musical publications and thus enabled unauthorized editions to become feasible and then commonplace.”55 The prevalence of unauthorized publications, referred to at the time as “piracy,” were of concern to composers who sought to protect the integrity of their original work and to control its dissemination, and even when composers did sell their works to authorized publishers, it was for a one-time fee, leaving publishers to profit from successful works while the authors gained only notoriety.56 Other than a handful of composers who obtained royal privileges in England in the 1700s, composers had no legal recourse for unauthorized printing of their works until passage of the Statute of Anne (“A Bill for Encouragement of Learning”) in England in 1710.57 Even then, it was not until 1777 that an English court determined that musical compositions were “writings,” and thus protected. In Bach v. Longman, the son of

54 Id. at 1476–81. 55 David Hunter, Music Copyright in Britain to 1800, 67 MUSIC & LETTERS 269, 271 (July 1986). 56 Id. at 272–76. 57 See, e.g., id. at 277 (“[b]etween 1710 and 1770 at least sixteen privileges were granted to composers”); JAMES BOYLE, JENNIFER JENKINS, & KEITH AOKI, TALES FROM THE PUBLIC DOMAIN: THEFT, THE HISTORY OF MUSIC 47 (CreateSpace Independent Publishing Platform February 14, 2017), available at https://law.duke.edu/musiccomic/download/.

32 INTRODUCTION CH. I

Johannes Sebastian Bach succeeded in an infringement claim against an unauthorized publisher, with Lord Mansfield ruling, “[W]e are of opinion, that a musical composition is a writing within the Statute of the 8th of Queen Anne.”58 However, the Statute of Anne covered only printing rights for the entire work; it did not give authors any right to control or profit from performances of the work, and it did not apply to “borrowing” of parts of the work.59 In America, due to the influence of author and lawyer Noah Webster (who is perhaps best known for his 1828 dictionary), in 1783 Connecticut was the first state to enact copyright protection for authors, modeling its statute after the Statute of Anne. The first federal Copyright Act of 1790, signed into law by President George Washington, only protected maps, charts, and books.60 At the urging of Congressman William Wolcott Ellsworth, son-in-law of Noah Webster, musical compositions were added to the list of works covered by statutory copyright protection in the U.S. in 1831, and the first musical work was registered for copyright protection under that law by Philadelphia music publisher George Willig only ten days after the law was enacted.61

58 Bach v. Longman, 2 Cowper 623, 624 (1777). 59 See JAMES BOYLE, JENNIFER JENKINS, & KEITH AOKI, TALES FROM THE PUBLIC DOMAIN: THEFT, THE HISTORY OF MUSIC 62 (CreateSpace Independent Publishing Platform February 14, 2017), available at https://law.duke.edu/musiccomic/download/. 60 Copyright Act of 1790, available at https://www.copyright.gov/about/1790-copyright-act. html. 61 See U.S. Copyright Office, Copyright Timeline, 19th Century, at https://www.copyright. gov/timeline/timeline_19th_century.html. Originally, claims to copyright were recorded by the clerks of the U.S. District Courts; it was not until the 1870 that the Library of Congress was charged with registering and recording copyrights.

CH. I INTRODUCTION 33

Maid of My Love, with lyrics by David Richardson and music by I.T. Norton: First Musical Composition Registered under U.S. Copyright Law, E.D. Pa. 183162

The scope of protected rights under the 1831 general copyright revision only included protection against unauthorized printing and vending; a public performance right for musical compositions was not granted until 1897.63 Music Industry in America at the Turn of the Twentieth Century A rapid commodification of music took place over the course of the twentieth century, influenced by a combination of technological advances, innovative business enterprises, and the creation of laws and enforcement mechanisms for protecting musical creations as property. The first foundation for the modern music industry in America was the growth of music publishing at the turn of the century, grounded more in a desire to sell sheet music rather than a desire to create lasting art.64 Close on the

62 U.S. Copyright Office Timeline, 19th Century, https://www.copyright.gov/timeline/ timeline_19th_century.html. 63 Copyright Office Circular 1a, available at https://www.copyright.gov/circs/circ1a.html. The 1897 statute’s provisions regarding the performance right are discussed in more detail in Chapter 3. 64 See DAVID SUISMAN, SELLING SOUNDS: THE COMMERCIAL REVOLUTION IN AMERICAN MUSIC 18 (Harvard University Press, 2009) (describing the advent of the popular song after the Civil War as marking “the beginning of a new era in the political economy of music, by refashioning

34 INTRODUCTION CH. I heels of the commercialization of the popular song was the invention and commercial exploitation of the “talking machine”—revolutionary technology that allowed sounds to be recorded and replayed and thereby furthered the acceptance of music as a thing that one could own rather than as something one did or one experienced in the moment.65 America’s music publishing industry did not really begin to take off until the advent of the “Tin Pan Alley”66 era at the end of the nineteenth century, in which aggressive marketing of “popular” songs led to huge increases in sales of sheet music and the development of a consumer economy in music. A precondition to the growth of the music publishing industry was the broad acceptance in the U.S. of the nineteenth century ideal of “music as a means to elevate the mind, body, and character of individuals and the spirit of the nation as a whole,”67 which made it commonplace across the country for keyboard instruments—pianos and organs of all levels of price and quality—to be found in the home. Although this ideal contemplated the benefits of bringing “serious” music into the home, it created a condition precedent for a new brand of music publishers to establish a market for popular songs.68 Centered in New York City, the new music publishing empire in the U.S. had its roots in vaudeville in the 1880s. Recognizing the popular appeal of vaudeville, music publishers began to advertise their songs in theater trade journals, and young publishing firms enlisted vaudeville performers in performing and promoting their new songs onstage. The Witmark brothers—Isidore, Julius (who had previously had an act as a minstrel performer), and Jay—founded M. Witmark and Sons, which became a pioneer in promoting its arsenal of songs. Charles K. Harris, a songwriter and publisher who wrote and promoted the first, truly national “hit song” in 1892–93 with After the Ball, moved to New York City just after the start of the twentieth century and inspired other young music publishing firms to try their luck on Tin Pan Alley.69 By 1900, most hit songs (based on sheet music sales) originated in New York, and by 1910, Tin Pan Alley was described as a collection of “popular song factories.” In one of the most basic and universal forms of cultural expression—the song—according to the inexorable logic of business”). Suisman goes on to note, “What distinguished Tin Pan Alley from other modes of making music was that the primary motivation for writing a song was to sell it, not to express some inherently human feeling or musical impulse.” Id. at 22. 65 E.g., THOMAS FORREST KELLY, CAPTURING MUSIC: THE STORY OF NOTATION 207–08 (W.W. Norton & Co. 2015); DAVID SUISMAN, SELLING SOUNDS: THE COMMERCIAL REVOLUTION IN AMERICAN MUSIC 10–12 (Harvard University Press, 2009). The early years of the recording industry will be discussed in more detail in Chapter 2. 66 The origination of this term is not clear, although one author asserts that it likely “involved Harry Von Tilzer and the songwriter and journalist Monroe Rosenfeld and referred to the cacophony created in the music publishers’ studios.” DAVID SUISMAN, SELLING SOUNDS: THE COMMERCIAL REVOLUTION IN AMERICAN MUSIC 21 (Harvard University Press, 2009). 67 Id. at 19. 68 Id. at 18–32. 69 See id. at 25–30.

CH. I INTRODUCTION 35 fact, these music publishers had turned music into a commodity just like soap or pencils, with systems in place for production, distribution, promotion, and sales of their products. To maintain a steady stream of “product,” the publishers hired staff songwriters—on the one hand making it possible for more composers to earn a living creating music, but on the other hand giving publishers more control over the nature and form of the musical works that they sold, with an emphasis on catchy titles and a strong chorus.70 With the success of the marketing and promotion campaigns driven by the Tin Pan Alley publishers, a demand for a constant stream of new music was created and the foundation for a new industry was built. Although musical notation allowed compositions to be preserved in written form and thus eventually protected as property and commodified, giving music publishers both profit and power, musical performances were not capable of being recorded until after recording technologies were invented in the late 1800s and did not receive legal protection until much later. In Chapter 2, we will discuss the early days of this branch of the music industry in more depth.

NOTES AND QUESTIONS 1. Does anything surprise you about the historical development of music as a commodity? What? Why? 2. As illustrated in the brief history above, efforts by authorities to exercise control over both the form and performance of music predate efforts by individuals to claim authorship over musical works. Given the rich array of musical works that existed before the law began to recognize and protect authors (e.g., classical works, folk music, religious hymns), do you think that copyright protection is necessary for promoting the creation of musical works? Why or why not?

70 Id. at 32, 41, 43, 49–50.