{"id":99,"date":"2015-06-01T22:39:38","date_gmt":"2015-06-01T22:39:38","guid":{"rendered":"http:\/\/revolutionsincommunication.com\/law\/?page_id=99"},"modified":"2025-11-11T13:36:55","modified_gmt":"2025-11-11T13:36:55","slug":"copyright-music","status":"publish","type":"page","link":"https:\/\/revolutionsincommunication.com\/law\/copyright\/copyright-music\/","title":{"rendered":"Copyright and music"},"content":{"rendered":"
\"commiepic\"<\/a>

Parody poster, origin unknown, in protest of heavy-handed enforcement of music copyrights through\u00a0the RIAA, for example, in\u00a0the Tennenbaum and Thomas cases (below).<\/p><\/div>\r\n

Controversy over music copyright<\/strong> used to involve disputes over relatively simple property issues. However,\u00a0 changes in music technology have complicated the issues since the 19th century.<\/p>\r\n

In the 21st century, \u00a0copyright issues have also taken on broad new cultural and even human rights dimensions.<\/p>\r\n

For example, how should the law define fair use, or question the relentless pursuit of music pirates, or uphold moral rights for musicians, or keep \u00a0copyright laws from stifling free culture in the name of free markets?\u00a0<\/p>\r\n

Many people outside the music industry have said that the laws are antiquated and should be adjusted to account for new technologies. \u00a0The traditional institutions of the music industry are defensive, since new technologies have meant an enormous drop in revenues, (only some of which comes\u00a0from music piracy). Musicians have been torn between various factions; \u00a0older and better established musicians tend to side with the industry, while \u00a0younger and less established musicians see opportunity in the new technologies.<\/p>\r\n

History of music copyright controversy\u00a0<\/strong><\/h3>\r\n
\"\"<\/a>

Stephen Foster<\/p><\/div>\r\n

Music copyrights go back to 1575 in Britain, and performance rights go back to the 1700s in France. \u00a0In the United States, books and maps were first copyrighted under the first federal constitution of 1787, but copyright laws had to be amended in 1831 to include sheet music, which became possible to mass produce with lithography.<\/p>\r\n

Even \u00a0so, infringement complaints were rarely heeded, and\u00a0early\u00a019th century songwriters like Stephen Foster <\/a>\u00a0(Camptown Races, Beautiful Dreamer, Old Kentucky Home) found it difficult to make a living. \u00a0Royalty rates were nominal and there was no copyright enforcement, according to\u00a0Andy Lykens’\u00a0\u00a0Brief History of Copyright<\/a>.<\/p>\r\n

\"\"<\/a><\/p>\r\n

As New York’s \u00a0“Tin Pan Alley” \u00a0became the center of the \u00a0music industry in the late 19th and early 20th century, concern about copyright and profits emerged as big business.<\/p>\r\n

When Charles K. Harris’ 1891 song \u201cAfter The Ball<\/a>\u201d sold over five \u00a0million copies of sheet music, without copyright protection, the \u00a0music industry demanded reform of copyright laws. One proposal was the 1895 \u00a0Treloar Copyright Bill<\/a>, which would have changed the term of copyright for published music from 24 to 40 years, renewable for an additional 20 instead of 14 years. \u00a0\u00a0The failure of the bill was largely due to a proposed mandate for\u00a0US printing\u00a0of foreign songs with US copyrights.<\/a>\u00a0 \u00a0In other words, if a French song publisher wanted a US copyright, the sheet music had to be printed in the US.<\/p>\r\n

A second attempt at copyright reform DID pass,\u00a0on January 6, 1897. The new law\u00a0assessed\u00a0damages in case of unauthorized public performance of a copyrighted dramatic or musical composition, and imprisonment if the unlawful performance “be willful and for profit.”<\/p>\r\n

But what is a performance? \u00a0The definition was relatively straightforward in 1897, \u00a0when all music performances took place in theaters and owners of songs would take a percentage of the box office receipts.\u00a0 But ten years later, as Tin Pan Alley was entering its heyday, it became harder\u00a0to define a performance. \u00a0New technologies like the automatic“player” piano <\/a>\u00a0and phonographic recording were making music performances possible outside the theater. And commercial radio broadcasting, another performance venue, was on the horizon.<\/p>\r\n

In 1908, the courts did not want to include these new venues under copyright protection. \u00a0Player pianos did not infringe on music copyrights because they were simply mechanical reproductions, and not actual performances, according to the US Supreme Court in\u00a0White-Smith Music Publishing Co. v Apollo<\/a>, 1908. \u00a0 <\/strong><\/p>\r\n

But songwriters and piano companies rebelled, and Congress supported musicians the next year with the 1909 Copyright Act<\/a><\/strong>\u00a0that included all player piano music under a compulsory license.<\/strong><\/a>\u00a0 \u00a0 <\/strong>The idea of a compulsory license\u00a0 was that a single company couldn’t get a monopoly over one recording; other musicians or companies could also perform a song legally<\/a>\u00a0 \u00a0so long as they paid the fee.\u00a0<\/p>\r\n

Performing Rights Organizations\u00a0<\/strong><\/p>\r\n

For compulsory licensing to work, a new kind of association was created in 1914: The American Society of Composers, Authors, and Publishers<\/a> (ASCAP)\u00a0<\/span> managed licenses and sold blanket rights to performers.<\/span><\/p>\r\n

When radio\u00a0\u00a0came along in the 1920s and 30s, ASCAP was able to take advantage of its monopoly over compulsory licensing, raising rates by 448 percent in the 1930s. Then, \u00a0in 1940, \u00a0ASCAP announced it would\u00a0double its rates again, going from 5 percent of overall radio income to 10 percent. Apparently ASCAP was fairly confident, and they had most of the great songwriters of the day from Tin Pan Alley, like\u00a0<\/span>Irving Berlin<\/a>, Otto Harbach<\/a>, James Weldon Johnson<\/a>, Jerome Kern<\/a> and John Philip Sousa<\/a>.<\/p>\r\n

If there is one ironclad law of mass media, it is that monopolies will be challenged.\u00a0 The two big radio networks, NBC and CBS, formed their own licensing corporation called BMI and boycotted ASCAP. The boycott lasted from January to late October, 1941. \u00a0ASCAP thought it would win, because\u00a0 its music in<\/span>cluded\u00a01,250,000 songs. Instead,\u00a0BMI\u00a0signed up a new generation of \u00a0musicians, including blues, jazz, country, folk and (soon) rock and\u00a0roll.<\/p>\r\n

BMI also made arrangements of public domain music\u00a0<\/span>and gave the\u00a0arrangements\u00a0to subscribers for free. \u00a0Old American standards like \u201cI Dream of Jeanne with the Light Brown Hair\u201d were played so often that \u00a0Time Magazine said \u00a0Jeanne\u2019s hair had turned grey. (This Boycott Changed American Music<\/a>, Radio World, May 4, 2015).\u00a0\u00a0 \u00a0<\/span><\/p>\r\n

ASCAP had to settle the dispute on unfavorable terms with BMI and also with the US Dept. of Justice, which investigated ASCAP for monopolistic practices. \u00a0To resolve the issues, a\u00a0consent decree under the Sherman Anti-Trust Act<\/a> went into effect in 1941.<\/p>\r\n

By the middle of the 1950s, BMI was licensing 80 percent of all the music on the radio. \u00a0 \u00a0ASCAP charged that BMI had conspired with radio station owners and record executives to foist rock n’ roll on young listeners. ASCAP\u00a0deplored they “low quality” music, “race” music, sexual license, and juvenile delinquency its said was associated with BMI’s music. \u00a0 These “pop culture” wars had a huge impact on radio and the growth of rock n’ roll. (Altschuler, G., and D. Litwin, “All Shook Up: How Rock n’ Roll Changed America. Oxford. 2003).<\/p>\r\n

“The important point to recognize<\/span> is that even though these broadcasters<\/span>\u00a0were broadcasting something you would call second best,<\/span> that competition was enough to break, at that time,<\/span> this legal cartel over access to music,” said Lawrence Lessig in a 2007 TED talk:\u00a0 Laws that Choke Creativity<\/a>.\u00a0 \u00a0 \u00a0 \u00a0<\/span><\/p>\r\n

Today, music played over the radio, in restaurants and through other performances of music, are covered under compulsory licensing through ASCAP, <\/a>\u00a0\u00a0BMI\u00a0<\/a> and SESAC<\/a>.\u00a0 Another group, \u00a0Sound Exchange<\/a>, covers internet\u00a0 streaming performances.<\/p>\r\n

New technology is once again challenging the century-old copyright law, and the response, in 2018, was the passage of the Music Modernization Act (next page) which facilitates music streaming through the internet as well as modernizes licensing payments to artists and copyright holders.<\/p>\r\n

Compulsory licensing &\u00a0Authors moral rights\u00a0<\/strong><\/h3>\r\n

In June, 2015, Neil Young objected to Donald Trumps use of his song<\/span><\/a>, \u201cKeep on Rockin\u2019 in the Free World.\u201d Within a few days, Trump relented<\/span><\/a> and said he would not use the song.\u00a0<\/span><\/p>\r\n

\u00a0Young was attempting to exercise his moral rights as the author of his songs. \u00a0But US copyright law does not include most instances of moral rights, so Trump could have continued to use the song if he had wanted to. In 2017, the US Copyright Office was considering an expansion of moral rights<\/a>,\u00a0due in part to the<\/span>\u00a0long line of controversies swirling around the political use of compulsory licensing<\/a>\u00a0and authors moral rights.\u00a0<\/span>\u00a0 These have included:<\/p>\r\n