Campbell conference: copyright and music licensing

Panel V. Copyright and Music Licensing (Moderator, Dean O’Connor)
Peter Menell, U.C. Berkeley: We seem to approach fair use depending on how we approach our careers. Lawyers: fair use is attractive b/c it has so much potential.  Social science: not so perfect b/c it doesn’t solve core problems in many areas.  Selma: director concluded (whether correct or not) that she couldn’t use real MLK speeches. This is a lost opportunity to portray history, with no arts-promoting benefits.  Jimi Hendrix biopic opens without his music, thanks to copyright. Fair use needs help. 
Another pocket of law: mashup as the breakout musical genre of this generation, just as hip hop was of a previous area. Sampling was channeled into licensing but never achieved all that it could, since labels wouldn’t release uncleared content. Internet/digital tools: new wave didn’t need labels.  No big threats of lawsuits.  But then you can’t monetize and distribute—that’s the boundary.  Norwegian Recycling: example of pop subgenre.  Sees copyright as an impediment. If you make it to the top of the remix world, you can perform for $100,000 a night, but many people would like to put their work out in recorded form, and that’s hard to do with no ability to monetize. They can do it live b/c there’s no public performance rights in sound recordings and the clubs already have blanket licenses. (They may bring in recorded remixes but no one has made a stink about it.)
Remix is in state of unrelievable tension: some think it’s all fair use, others think it’s morally and legally indefensible.  Girl Talk sometimes takes big chunks; not clear how that would come out under fair use. Solution might be compulsory licensing, as several studies of remix artists suggest—artists are happy to share some of the revenue without being fettered in creation.  Cover right = kind of remix that is unfettered in that way.  Many might be fair uses, but covers don’t seem to bother people; help promote the older versions too.  Rethink our exceptions for revenue sharing: complement to fair use; use limitations with no ads, no synch.  No statutory damages for mashups.  There are objections but we won’t get perfection, and we’ve already been waiting years for some help. 
Moral rights: William Hung did a Xmas album; we live with the cover right.  We could be explicit that there’s no cutback on fair use.  Many remix artists would go along without demanding fair use rights—less pressure on the doctrine.
Eric Priest, Oregon: Music in China. Creators do produce works in China despite difficulty monetizing them. China’s film industry is booming.  Basically no money from online music. One revenue stream: exists by happy circumstance, b/c Chinese consumers happen to really like ringback tones.  Those aren’t piratable unless you hack your phone; centrally controlled by mobile provider. But mobile providers do a lot of record label style accounting, so record labels don’t get much, and artists get less still—2% of the revenue generated by the providers.  Labels lack leverage to renegotiate deals/enforce deals they already have b/c this is their sole source of revenue.
When there’s only one revenue stream, you force people to accept that stream.  As you get monopsony intermediaries, that vests tremendous power and leverage in that intermediary. We’re seeing glimpses of that in the US.  One Amazon, one Google, one dominant player per space—not clear who that’ll be in music distribution, though some will say YouTube has won. YouTube can say: agree to our terms or your videos will be private. Strongarm negotiating is part of the model, when revenue streams dry up.
Kristelia Garcia, Colorado: We don’t want to limit the cover right by forcing any distance at all from the first performance.  But what does that mean for other issues, like the Blurred Lines case?  We don’t normally see 10% similarity analysis in substantial similarity in music: what does it mean to say that Blurred Lines “sounds and feels” like Got to Give It Up?  Not at all clear how people are throwing around these musicological terms.  Also a bunch of nonsense phrases, including in instructions to the jury—“a constellation of distinctive and important elements,” “vocal and instrumental themes,” “unusual cowbell and instrumentation” as opposed to the standard cowbell, copying of “omission of guitar,” and use of male falsetto, which seems unfair. “The very essence of the work”?  Is that because it’s in the genre?  There is substantial similarity of feel in the works, but so what?  Sub Pop: Do you hope the artist you hear next sounds completely new?  Answer: No, we hope they sound like artists who sound like the artists we have who are already successful.  We have records to sell. Don’t have time to risk with artists doing completely new things.  Does that create risks of label mates suing each other?  Universal’s acts are suing each other: Marvin Gaye & Robin Thicke.  Substantial similarity is the equivalent of fair use in music; that’s the only tool we have.
Olufunmilayo Arewa, U.C. Irvine: Music and similarity. Part of what we’re dealing with is that a lot of music is very similar. Not just pop music: historically, a lot of music has been similar. We tend to interpret music through the lens of the canon: we ignore 1000s of composers in classical, blues, jazz.  But that means we forget a bunch of similarities. If you play a bunch of music from Robert Johnson’s time, it’s not clear how he differs from other contemporary artists, which is not to say he wasn’t a great artist.  Rise of African-American influence in music: popular western music used to sound very different, a century ago.  Not just in US.  Think of change in assumptions about how we create, which we don’t think about enough from a © perspective.
Lawyers and writing. We think about lyrics. But Campbell and other cases, when they talk about musical features, courts lose their way—much less sophisticated and nuanced. Reflects that lawyers are trained to focus on writing.
Notation, and its use in unintended ways in legal cases. Notation is a particular kind of writing with a specific historical trajectory of trying to write down Western art music, as something that singers and instrumentalists can both use. Rhythm is very hard to notate.  A lot of rhythm is learned orally, even today.  Notation is a shortcut, not a complete embodiment.  That impacts popular music today, because a lot of infringement cases are about the musical work. Courts would often play the music and tell jurors to abstract out different portions to get to some kind of essence. That’s very difficult, b/c there are important cognitive/perception aspects of music that we need to think carefully about. Music writings and music sounds are processed in different parts of the brain.  Reactions to music can be highly individualized.  Courts don’t have a good enough understanding of how writing v. sound is processed.  Notation is representation, and what it means varies a lot, especially for African-American music where the lead sheets don’t fully embody the written music.  Sound recording copyright doesn’t really help because most infringements aren’t verbatim copies of the sound recording.
Underlying assumptions. Need to think about the relationship between musical sound and musical writing. Influence of things like genre, musical perception/cognition. How do we think about and measure musical relationships.
O’Connor: example of musician who shows her bass playing by playing it over a recording of I Wanna Be Sedated—doesn’t fit into conventional categories, but maybe we want to allow it, including under Menell’s proposal.
Heald: Maybe one way to look at it is whether there are local borrowing norms that allow a certain amount of copying.  Argument: Berne should be held to mandate this b/c it says it’s permissible to quote a work lawfully made available to the public provided this conforms w/fair practice.  Not limited to just words.
Arewa: sounds good, but look at Rolling Stones, who borrowed heavily from blues traditions but then enforced heavily against, e.g., Bittersweet Symphony. 
Heald: maybe they’re hypocrites.
(Other discussion: the labels/publishers sue; their norms are different/are they even relevant since they benefit from the artists’ underlying acts?)
(I’m really intrigued by Garcia’s suggestion that substantial similarity serves the fair use role (well or badly) in music infringement cases. This gets to something often missed by ideas about parody/transformation that reduce it to criticism.  Sometimes quotation is a way of participation in a conversation; it doesn’t have to be critical for there to be a transformative new work created.  To the extent that similarities situate a work within a genre—similarities that might be called tropes or scenes a faire in non-music cases—they do serve one function of quotation that might in other contexts be analyzed as fair use.  The problem in music cases seems to be insufficient appreciation that substantial similarity is also serving the fair use role, though I’m not quite sure what should be done about that given that breaking out fair use would also require articulating the musical concepts that Arewa points out judges/courts don’t understand all that well.)
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