The Fallacy of Music Ownership and its Enduring Legal Fictions.

-- By KieranSingh2001 - 29 Apr 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. With the advent of recording machines, music became commodified and corporatized. At the same time,

History of Sampling

Arbitrary line drawing

Modern Copyright Law

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. 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,

Composition

Sampling

In terms of sampling -- the taking of a certain part of a song recording and using it for another song -- the original copyright holder has exclusive rights. in other words, “get a license, or do not sample.” Music, Inc. v. Dimension Films, 410 F.3d 792, 801 (6th Cir. 2005). However, the de minimis defense, that the use is excusable where an “average audience would not recognize the appropriation,” VMG Salsoul, Ltd. Liab. Co. v. Ciccone, 824 F.3d 871, 878 (9th Cir. 2016), Applies here, id.,at 874.

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 is, and 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.

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

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 can use them later, as well as who can profit from them. 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 into their work, they should be able to do so, provided they are not trying to profit from a direct copy (if they are, statutory licenses like those that already exist 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 do not have invidious intentions would.

---

You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" character on the next two lines:

• #Set ALLOWTOPICVIEW = TWikiAdminGroup, KieranSingh2001
• #Set DENYTOPICVIEW = TWikiGuest

Note: TWiki has strict formatting rules for preference declarations. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of these lines. If you wish to give access to any other users simply add them to the comma separated ALLOWTOPICVIEW list.