CHAPTER I INTRODUCTION: ROLL OVER BEETHOVEN1 ■ ■ ■ 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.