Panel V. Copyright and Music Licensing (Moderator, Dean
O'Connor)
Peter Menell, U.C. Berkeley: We seem to approach fair use
depending on how we approach our careers. Lawyers: fair use is attractive b/c
it has so much potential. Social
science: not so perfect b/c it doesn’t solve core problems in many areas. Selma:
director concluded (whether correct or not) that she couldn’t use real MLK
speeches. This is a lost opportunity to portray history, with no arts-promoting
benefits. Jimi Hendrix biopic opens
without his music, thanks to copyright. Fair use needs help.
Another pocket of law: mashup as the breakout musical genre
of this generation, just as hip hop was of a previous area. Sampling was
channeled into licensing but never achieved all that it could, since labels
wouldn’t release uncleared content. Internet/digital tools: new wave didn’t
need labels. No big threats of
lawsuits. But then you can’t monetize
and distribute—that’s the boundary. Norwegian Recycling: example of pop
subgenre. Sees copyright as an
impediment. If you make it to the top of the remix world, you can perform for
$100,000 a night, but many people would like to put their work out in recorded
form, and that’s hard to do with no ability to monetize. They can do it live
b/c there’s no public performance rights in sound recordings and the clubs
already have blanket licenses. (They may bring in recorded remixes but no one
has made a stink about it.)
Remix is in state of unrelievable tension: some think it’s
all fair use, others think it’s morally and legally indefensible. Girl Talk sometimes takes big chunks; not
clear how that would come out under fair use. Solution might be compulsory
licensing, as several studies of remix artists suggest—artists are happy to
share some of the revenue without being fettered in creation. Cover right = kind of remix that is
unfettered in that way. Many might be
fair uses, but covers don’t seem to bother people; help promote the older
versions too. Rethink our exceptions for
revenue sharing: complement to fair use; use limitations with no ads, no
synch. No statutory damages for mashups. There are objections but we won’t get
perfection, and we’ve already been waiting years for some help.
Moral rights: William Hung did a Xmas album; we live with
the cover right. We could be explicit
that there’s no cutback on fair use.
Many remix artists would go along without demanding fair use rights—less
pressure on the doctrine.
Eric Priest, Oregon: Music in China. Creators do produce
works in China despite difficulty monetizing them. China’s film industry is
booming. Basically no money from online
music. One revenue stream: exists by happy circumstance, b/c Chinese consumers
happen to really like ringback tones.
Those aren’t piratable unless you hack your phone; centrally controlled
by mobile provider. But mobile providers do a lot of record label style
accounting, so record labels don’t get much, and artists get less still—2% of
the revenue generated by the providers. Labels
lack leverage to renegotiate deals/enforce deals they already have b/c this is
their sole source of revenue.
When there’s only one revenue stream, you force people to
accept that stream. As you get monopsony
intermediaries, that vests tremendous power and leverage in that intermediary.
We’re seeing glimpses of that in the US.
One Amazon, one Google, one dominant player per space—not clear who that’ll
be in music distribution, though some will say YouTube has won. YouTube can
say: agree to our terms or your videos will be private. Strongarm negotiating
is part of the model, when revenue streams dry up.
Kristelia Garcia, Colorado: We don’t want to limit the cover
right by forcing any distance at all from the first performance. But what does that mean for other issues,
like the Blurred Lines case? We don’t
normally see 10% similarity analysis in substantial similarity in music: what
does it mean to say that Blurred Lines “sounds and feels” like Got to Give It
Up? Not at all clear how people are
throwing around these musicological terms.
Also a bunch of nonsense phrases, including in instructions to the jury—“a
constellation of distinctive and important elements,” “vocal and instrumental
themes,” “unusual cowbell and instrumentation” as opposed to the standard
cowbell, copying of “omission of guitar,” and use of male falsetto, which seems
unfair. “The very essence of the work”?
Is that because it’s in the genre?
There is substantial similarity of feel in the works, but so what? Sub Pop: Do you hope the artist you hear next
sounds completely new? Answer: No, we
hope they sound like artists who sound like the artists we have who are already
successful. We have records to sell. Don’t
have time to risk with artists doing completely new things. Does that create risks of label mates suing
each other? Universal’s acts are suing
each other: Marvin Gaye & Robin Thicke.
Substantial similarity is the equivalent of fair use in music; that’s
the only tool we have.
Olufunmilayo Arewa, U.C. Irvine: Music and similarity. Part
of what we’re dealing with is that a lot of music is very similar. Not just pop
music: historically, a lot of music has been similar. We tend to interpret
music through the lens of the canon: we ignore 1000s of composers in classical,
blues, jazz. But that means we forget a
bunch of similarities. If you play a bunch of music from Robert Johnson’s time,
it’s not clear how he differs from other contemporary artists, which is not to
say he wasn’t a great artist. Rise of
African-American influence in music: popular western music used to sound very
different, a century ago. Not just in
US. Think of change in assumptions about
how we create, which we don’t think about enough from a © perspective.
Lawyers and writing. We think about lyrics. But Campbell and
other cases, when they talk about musical features, courts lose their way—much less
sophisticated and nuanced. Reflects that lawyers are trained to focus on
writing.
Notation, and its use in unintended ways in legal cases.
Notation is a particular kind of writing with a specific historical trajectory
of trying to write down Western art music, as something that singers and
instrumentalists can both use. Rhythm is very hard to notate. A lot of rhythm is learned orally, even today. Notation is a shortcut, not a complete
embodiment. That impacts popular music
today, because a lot of infringement cases are about the musical work. Courts
would often play the music and tell jurors to abstract out different portions
to get to some kind of essence. That’s very difficult, b/c there are important
cognitive/perception aspects of music that we need to think carefully about.
Music writings and music sounds are processed in different parts of the
brain. Reactions to music can be highly
individualized. Courts don’t have a good
enough understanding of how writing v. sound is processed. Notation is representation, and what it means
varies a lot, especially for African-American music where the lead sheets don’t
fully embody the written music. Sound
recording copyright doesn’t really help because most infringements aren’t
verbatim copies of the sound recording.
Underlying assumptions. Need to think about the relationship
between musical sound and musical writing. Influence of things like genre,
musical perception/cognition. How do we think about and measure musical
relationships.
O’Connor: example of musician who shows her bass playing by
playing it over a recording of I Wanna Be Sedated—doesn’t fit into conventional
categories, but maybe we want to allow it, including under Menell’s proposal.
Heald: Maybe one way to look at it is whether there are
local borrowing norms that allow a certain amount of copying. Argument: Berne should be held to mandate
this b/c it says it’s permissible to quote a work lawfully made available to
the public provided this conforms w/fair practice. Not limited to just words.
Arewa: sounds good, but look at Rolling Stones, who borrowed
heavily from blues traditions but then enforced heavily against, e.g.,
Bittersweet Symphony.
Heald: maybe they’re hypocrites.
(Other discussion: the labels/publishers sue; their norms
are different/are they even relevant since they benefit from the artists’
underlying acts?)
(I’m really intrigued by Garcia’s suggestion that
substantial similarity serves the fair use role (well or badly) in music infringement
cases. This gets to something often missed by ideas about parody/transformation
that reduce it to criticism. Sometimes
quotation is a way of participation in a conversation; it doesn’t have to be
critical for there to be a transformative new work created. To the extent that similarities situate a
work within a genre—similarities that might be called tropes or scenes a faire
in non-music cases—they do serve one function of quotation that might in other
contexts be analyzed as fair use. The
problem in music cases seems to be insufficient appreciation that substantial similarity is also
serving the fair use role, though I’m not quite sure what should be done about
that given that breaking out fair use would also require articulating the
musical concepts that Arewa points out judges/courts don’t understand all that
well.)
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