Free Artistry and the Pitfalls of Music Copyright

-- By KieranSingh2001 - 5 May 2024

History of Music Ownership

Music, as a cultural and social phenomenon, was not commodified for much of human history. Music was a shared "social process," without a rigid producer-consumer relationship between those who composed the music and those who listened. It was not created for profit so much as for engaging in group artistry. With the advent of recording machines, music became commodified and corporatized. At the same time, recorded digital music allowed for "sampling"-- the taking of a certain part of a song recording and using it for another song -- to be used as an incredibly versatile musical tool. Beginning largely in the hip-hop community, sampling allowed for the creation of new sounds, and the advancement of music as a medium. Commodification, of course, began to encroach on this new iterative system for music, enabled by stringent copyright protections for compositions and recordings.

Modern Copyright Law

Copyright owners have specific exclusive rights: usually, the right to copy and distribute the work, the right to make works based off of the original work (eg. a remix), and the right to control who and what performs the work (the right of display does not apply to music). Ownership of a sound recording, and ownership of the underlying composition, are two different concepts and the owners can oftentimes be two different people or entities, like the record label and the songwriter. The right to perform a composition is self-explanatory, but the right to performance for a sound recording only involves the right to play or transmit a digital recording. Section 203 of the copyright act provides that songwriters can reclaim their copyrighted works (read: sound recording) after thirty-five years, but the rule does not apply uniformly, as work that was made "for hire," that is, under the direction of the employer, remains in the hands of the employer.

According to Bridgeport Music v. Dimension Films, In terms of sampling, the original copyright holder has exclusive rights. in other words, “get a license, or do not sample.” The industry word for getting permission from a copyright owner to sample is "clearing," and it almost always comes at a cost. However, the de minimis defense, that the use is excusable where an “average audience would not recognize the appropriation,” from VMG v. Ciccone, Applies here. For compositions, the test is similar: whether an ordinary audience or observer would notice the similarity. However, if an artist made similar music in parallel to the original work, without any exposure to the original work, it is not a violation

The De Facto Uneforceability of Copyright Law

The legal rights to distribution, use, and remixing of music do not reflect what is happening online. While unauthorized distribution of music has been, fully punished by law, especially when the music is unreleased by the artist, the files remain out there, and unretractable, by the internet. Leaks, and the derogatorily-termed "piracy" have only increased in the last few decades. Research and observation has indicated that modern internet technology has substantially weakened the amount of protection that copyright affords to musicians.

This presents an issue for artists: should they acknowledge that their music is not a commodity they truly own? With the advent of the internet, it has never been easier to access or distribute music outside the bounds of copyright law, Even though the framework of copyright does not constrain unauthorized distribution, litigation and criminal law are still used to punish specific instances. As much as people can be deterred, it is the law-abiders who want to iterate on previous songs and contribute to cultural development. The current system seems to stifle artistry while not preventing extralegal uses at all.

The Creative Commons

Creative Commons, founded in the early 2000s by legal and internet leaders, sought to provide artists with the option of less restrictive copyrights on their works. The founders wanted to find a middle ground between stringent copyright and the public domain. While not official licenses based on statutes, creative commons are legal tools that allow the original copyright holders of a work to enable others to use it (under certain conditions) more freely, without the aforementioned complicated litigation issues. Additionally, according to the organization, they have never been declared unenforceable. All Creative Commons licenses require attribution to the original work, and some require more stringent conditions, like not remixing the work or not relying on the work for profit (also known as a CC-BY-NC license).

A Freer Music Industry

The melodies, rhythms, and themes used in the music likely existed before the creation of any song, maybe not in the same order as in a copyrighted recording, but the de minimus doctrine and current ownership rules are too restrictive. Right now, the person who has the historically accidental privilege of copyright over those musical elements is the arbitrary determiner of who gets sued or fined for iterating on their work. Perhaps there should be a higher bar than de minimis for copyright violations in interpolations or sampling. Artists should have the right to make a living off their work, but if someone wants to integrate significant elements of another work into theirs, they should be able to do so, provided they are not trying to profit from a direct copy (if they are, existing statutory licenses that require an artist to clear a cover may be prudent).

Alternatively, a widening of the creative commons system may achieve the same ends. Moreover, a far wider use of CC-BY-NC licensing by mainstream artists would simply give artists more dignity in processes that are happening anyway – outside the purview of copyright doctrine. Leakers, listeners, and remixers who view music as an art, or a "social process" would take advantage of the opportunity given by the expanded use of Creative Commons licenses, expanding the well of new and innovative musical ideas that may borrow from previous ones without fear of legal retribution.

You can trace Creative Commons licensing back to the free software movement's use of the "copyleft" General Public License for software. (Larry Lessig, 2ho founded Creative Commons, is explicit in his description of that relationship.) Your conclusion traces forward to a transformational effect on musical creation like that which free software licensing brought to the worldwide making of software. I wrote about that process, relating free software to "share alike" music in the human past and future, at the end of the 20th century. On possible route to improvement would be to connect your analysis to that historical context.

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