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Music and Copyright: A Hot, Stinking Mess
Aram Sinnreich, Ph.D.Rutgers University School of Communication & Information
This text is freely available under a Creative Commons 3.0 Attribution-NonCommercial-ShareAlike license.
Copyright Beyond PrintMLIS ColloquiumFeb 12, 2014
1. The Basics
Term of copyright
Music Copyright Timeline
1527 1790 1889 1909 1972 1976 1998
Proto-© for English music
publishers
American ©conferred onauthors but
NOT composers
PublicPerformances
Mechanicalreproduction
PhonoCopyright
Synchrights
DMCA
1790:14 years
(+14)
1831:28 years
(+14)
1909:28 years
(+28)
1976:Life + 50
1998:Life + 70
Type of copyright
1831
Copyrightfor US
composers
Music and Copyright in the Recording Era
Artists/Labels“Masters Rights”
Composers &Publishers
“Publishing Rights”
Retail Radio
• Retailers pay wholesale to labels• Labels pay royalties to artists
• Retailers pay wholesale to labels• Labels pay “mechanical” royalties to publishers• Publishers pay composers
• Broadcasters do NOT pay performance royalties on masters• Promotion and “payola”
• Broadcasters pay royalties to PROs (e.g. BMI)• PROs pay publishers and composers
2. Copyright and Corporate Power
Recording Contracts = Awesome
1.Transfer of ownership2. “Controlled composition” clause effective royalties cut by 25%
3. “Net sales” = 85%4. Container charge = 25% deduction5. “New tech” = 20% deduction (e.g. CD, MP3)6.Cross-collateralization7.Recoupment
RIAA: <10% of albums recoup label expenses
Kenny Rogers v. Capitol Records
Source: Attorney Chris Taylor
Recording Contracts = Awesome, Take 2• Taking two years to respond to an audit request.• Refusing to account for, or pay a share of, P2P fees.• Holding over $76,000 in unprocessed royalties in a “suspense file” with no apparent right or
cause.• Non-payment of royalties from sales of music via record clubs.• Non-payment of royalties on “free goods” distributed overseas, in violation of Rogers’
contract.• Inconsistent documentation, “in that some accounts showed earnings for certain albums in
certain periods, but other accounts . . . failed to reflect those earnings.”• Withholding foreign taxes even though they were offset by tax credits.• Incorrect royalty rate calculation in some foreign territories.• Charging over $12,000 to Rogers without any explanation of those charges.• Charging Rogers 100% of video production costs, even though his contract stipulated a
50% charge.• Failing to account for or pay royalties based on radio performance royalties.• Paying Rogers a far lower royalty than his contract required for “non-disc records” such as
digital downloads and ringtones.• Failing to remedy any of these oversights financially once the audit had revealed them.• While terrestrial radio in the US is not required to pay a royalty to record labels, this is not
the case in many foreign countries.
Music Copyright: Fun for Startups, Too!
“Why license them and make a little, when you can sue them and make a lot?”- Larry Kenswil
(paraphrasing UMG legal department)
3. Copyright and Music Aesthetics
Some Music Uses Don’t Require Permission…
Cover Songs Public Performances
Quotation Parody
And Some Do…
Sampling Movies/TV
Video Games Streaming On-Demand
4. Digital Mayhem
Music Has Gone From This…
…To This.
Old Definitions Have No Value
Programmed(Radio)
On-Demand(Retail)
Compulsory ?????????????????? Contractual
Old Products and Formats Have No Value
Old Products and Formats Have No Value
It’s Taken the Industry 15 Years…
Hundreds of Startups Dead40,000 Customers Sued
Bad Laws & Copyfight Massive Bad Will
…But Change is Slowly Coming
Newer Business Models Thriving Indie Markets
Newer Copyright Models Support for Change in D.C.
We’re Not Out of the Woods Yet
Thank you.
Aram Sinnreich, [email protected]
Books by Aram Sinnreich
Mashed Up (2010)www.mashed-up.com
The Piracy Crusade (2013)www.piracycrusade.com