Writer: Sophia Leonard
Editor: Matt Rigby
December 6, 2023
Music and other forms of entertainment are ever-evolving and continue to take new forms with the modernization of society. The transformative nature of music is a hot topic as it pertains to current copyright law and legislation as the interplay between entertainment and the legal sphere presents challenges for both sides (Londoño, 2021). There is a constant battle between maintaining an appropriate level of freedom for new music to evolve and be shared, while also recognizing pre-existing works and ensuring their protection. The digital age has transformed how we consume music; we have moved away from tangible sales of CDs and vinyl to digital streaming services like Spotify, Apple Music, and Pandora (Londoño, 2021). With this rapid change over the past few decades, gaps in intellectual property legislation have become apparent.
Up until recent years, a complex licensing system dominated the music industry. The previous system included a disorganized web of complex checkpoints for musical works to go through for royalties to be distributed according to the copyright on a specific piece (Music Modernization Act, 2018). In music copyright, there are two types of copyrights for one piece of music; the song composition and lyrics make up one copyright, the other copyright being the actual recording of a song (the mechanical recording). The issue of royalty distribution lies in the mechanical recording of a song. The prior lack of transparency and fairness in royalty distribution and artist recognition became heavily apparent with the growth of digital streaming services (Music Modernization Act, 2018). Royalties and compensation were consistently lost within the previous system as it did not measure up to what was required of the fast-paced digital world (Music Modernization Act, 2018).
The demand for new copyright legislation pertaining to musical creations was followed by the Music Modernization Act (MMA), passed in April 2018. This new legislation aimed to modernize and simplify the complex system that encompasses music licensing and distribution of royalties (Music Modernization Act, 2018). Fairness and transparency in compensation for artists, publishers, songwriters, and other important players in the music development process were heavily emphasized in this 2018 legislation (Music Modernization Act, 2018). To address the issues of mechanical licensing previously mentioned, the MMA created the Mechanical Licensing Collective, a primary source responsible for administering mechanical licenses for digital music services. This adaptation allows for a seamless process in licensing, aiding digital music services in obtaining licenses for songs, and ensuring the fair compensation of artists and publishers (Music Modernization Act, 2018). Transparency was heavily emphasized in the MMA, making it easier to track down and receive royalties on the artists’ end, in addition to holding copyright agencies accountable through public mandating and reporting (Music Modernization Act, 2018). The adaptations to copyright law made by the MMA ensure artists and others involved in the music production process are better protected in the digital era.
The discussion of fair compensation for artists, songwriters, and other producing parties opens a new discussion of copyright infringement that can and often does occur in the music industry. The Copyright Act gives five exclusive rights to the copyright owner; the right to reproduce copies, prepare derivative works, distribute copies of work, and publicly perform or display work (Title 17 of U.S. Code, 1947). Copyright infringement is any violation of a copyright owner’s exclusive rights. To evaluate, there is a test of “substantial similarity” that assesses a work’s similarity in ideas or expression to another copyrighted piece (Title 17 of U.S. Code, 1947). The issue of substantial similarity commonly arises in the context of the music industry as artists need to avoid substantial similarity to pre-existing works, considering song lyrics, composition, and musical recordings.
A majority of copyright infringement cases involve distributing royalties to the appropriate artists who may have influenced new musical pieces. In 2015, artist Sam Smith was sued for copyright infringement on their single “Stay With Me.” Shortly after its release, listeners quickly noticed similarities between Tom Petty’s and Jeff Lynne’s “I Won't Back Down” (Mansfield 2015). Smith and Petty quickly settled the dispute as Smith acknowledged the similarities and agreed to share 25% of the song’s royalties with Petty and Lynne (Mansfield 2015). This presents one of the many copyright infringement cases concerning the distribution of royalties when songs appear to be substantially similar. This claim of infringement was resolved efficiently with minimal conflict; this is not always the case.
Looking deeper into the distribution of royalties that the MMA sought to address, we can look to the case of Taylor Swift and Scooter Braun as Swift fought for the rights of her first six albums. The two separate copyrights on music, one for mechanical recordings and one for lyrics and composition are at the root of this controversy. Swift, as the singer and songwriter on most of her tracks, owns the rights to the songs themselves. However, due to her contract with the record label, she does not own the recordings of the songs that appear on her first albums (Dahl 2021). Her lack of ownership means that she only gets partial royalties when her original albums are streamed; Scooter Braun now receives most of the profit after Swift’s former label sold him the masters to Swift’s records (Coscarelli 2019). Many recording artists experience this same conflict as recording studios often guide artists through the process of record distribution, album release setup, and control within the commercialization of upcoming albums, thus taking a large portion of the recording rights as compensation (Dahl 2021). Swift’s decision to re-record her original albums was her workaround to the current system of how music ownership works concerning recording studios. The long fight Swift engaged in for ownership of her music opened a discussion of what role recording studios play in the current music industry with extensive digital distribution options.
The conflict between corporate entities with recording rights and artists looking to own their music is a constant battle within the music industry of today. These disagreements spark debate about what further changes should be made to how music licensing works. Most of this discussion regards private contracts between the parties, but is there a way legislation could be implemented to protect artists and their works? Under current copyright law, there is no rule as to who should own the original recordings of songs when a recording studio is involved, however, legislation that addresses how to go about these disputes would be of great service to both artists and the recording studios. Through potential legislation, artists could have the opportunity to feel more protected in their work, while both parties save time and money in knowing exactly how to dispute these potential disagreements.
The US Copyright system as it exists today needs to continue to be evaluated frequently to ensure artists feel protected and fairly compensated as digital streaming and modern music evolve.
References
Coscarelli, J. (2019, June 30). Taylor Swift on Scooter Braun buying her old label: “My worst
case scenario.” The New York Times. https://www.nytimes.com/2019/06/30/arts/music/taylor-swift-music-scooter-braun.html
De Groot, K. (2021, November 19). Rereleasing “red”: On Taylor Swift’s latest album and
Music copyright. Penn Today. https://penntoday.upenn.edu/news/rereleasing-red-qa-taylor-swifts-latest-album-and-music-copyright
Londoño, J. (2021, September 20). The growing tensions between digital media platforms
and Copyright Enforcement. American Action Forum. https://www.americanactionforum.org/insight/the-growing-tensions-between-digital-media-platforms-and-copyright-enforcement/
Mansfield, B. (2015, January 26). Sam Smith to pay Tom Petty royalties on “stay with
me.” USA Today. https://www.usatoday.com/story/life/music/2015/01/26/sam-smith-stay-with-me-tom-petty-i-wont-back-down/22346051/
Office, U. S. C. (n.d.). The Music Modernization Act. The Music Modernization Act | U.S.
Copyright Office. https://www.copyright.gov/music-modernization/
Office, U. S. C. (n.d.). What musicians should know about copyright. What Musicians Should
Know about Copyright | U.S. Copyright Office. https://www.copyright.gov/engage/musicians/
Comments