How To Understand Music Copyright Law
Copyright law provides an essential foundation needed for the music industry to function, but many artists actually creating music are misinformed, or simply lack an understanding of how copyright actually functions in relation to their work.
Guest post by Scott M. Huff from Berklee’s Music Business Journal
It has been said, “it all starts with a song.” Anyone in the music business would agree that a musical work is the foundation of the industry; if the musical work is the foundation, then the copyright is the structural framing with which the rest of the industry is built. Issues arise, however, when one considers that many music creators lack a true understanding of copyright law; many are misinformed about how copyright is registered, or how copyright protection even works.
As a 35-year professional musician, songwriter, and composer, I have collaborated with hit songwriters, recorded with Grammy Award winners, and toured the world with celebrity recording artists. Despite this experience, it wasn’t until I began my graduate studies at Berklee College of Music that I read Article I of the Constitution, which grants the right of copyright, nor any part of the Copyright Act, which specifically defines all aspects of copyright law (Copyright Law of the United States, 2019). My understanding of copyright protection was largely based on the common myths and anecdotes, like the “Poor Man’s Copyright,” the “Seven Note Rule,” and the “Four Second Rule.”
As I learned more about copyright law and studied copyright infringement court cases, the importance of understanding the intricacies of copyright law became apparent. The U.S. District Court ruling, and subsequent U.S. Circuit Court opinion of the Marvin Gaye Estate v. Robin Thicke and Pharrell Williams case (Williams v. Gaye, 2018) granted a great deal of information about what copyright law protects and doesn’t protect. This landmark case seemed to tip the first domino in a line of copyright infringement lawsuits whose rulings defy logic and reason. The most recent of these involves the judgment against Katy Perry and her collaborators for her song “Dark Horse,” in which Katy Perry’s team was found guilty of infringing upon Christian musician Marcus Gray’s exclusive right to reproduce his original work; Gray and his team believed that Perry and her team copied the beat from his song “Joyful Noise.” (Eggertsen, 2019).
Why This is Important
In the past, only those musicians with record deals or major publishing deals enjoyed any measure of mass reach for their music. For the rest, issues about the copyrights for their musical works were either non-existent or localized to their geographic area. That has changed in recent years, as innovations in recording technology and the proliferation of streaming services have allowed independent artists and creators to have a global presence at the click of a button. According to Rolling Stone, these “self-releasing” artists saw a 35% increase in revenue worldwide in 2018 (Ingham, 2019). If the trend continues, independent musicians’ “collective annual income would hit somewhere around the $1 billion mark” by the end of 2019. On top of managing and marketing themselves, these independent artists are responsible for properly registering their copyrights with the U.S. Copyright Office and protecting themselves from potential copyright infringement issues. They are no longer passive bystanders, but active participants with their copyrights.
A significant problem becomes apparent when considering that most music creators know very little about copyright law and how it can impact their career and the music industry at large. “To proceed with any solution, we have to determine what musicians do – and don’t – understand about U.S. copyright.
There is no shortage of academic literature regarding copyright law. Yet few resources reflect the music creators’ perspective. Often, those that do reflect musicians’ perspectives merely state an opinion without correlating those thoughts to actual understanding of copyright law.
Regarding music sampling litigation, Demers (2006) declares, “…the threat of litigation is enough to stop many artists and musicians from [sampling] altogether.” She cites hip-hop group Public Enemy’s refusal to continue sampling as an example of this phenomenon without analyzing their understanding of copyright law. There is precedent that protects the use of samples in new songs, such as that created by the copyright infringement case between Madonna and Salsoul, in which Madonna’s team successfully defended her usage of Salsoul’s “Love Break” for her 1990 hit “Vogue” (VMG Salsoul, LLC v. Ciccone, 2016).
While there are dozens of websites and blog posts dedicated to teaching musicians about copyright, such as the Legal Zoom article, “8 Basic Facts Every Musician Should Know About Copyright Law” (Kaminsky, 2019), one must ask: how many musicians have read these articles, or taken the extra step to read the U.S. Copyright Code? (U.S. Copyright: In General, 1976), derivative works (U.S. Copyright: Derivative Works, 1976), or “fair use” (U.S. Copyright: Fair Use, 1976).
Some publications reflect the music creator’s direct knowledge of copyright law. “Ethnomusicology and Music Law,” from the University of Illinois Press (Seeger, 1992), discusses a questionnaire created by The International Council for Traditional Music’s Copyright Committee, which was sent to its members asking them about copyright rules and ownership. He wrote that “a relatively small percentage of those queried responded…and many of those who did respond appeared to know little about music ownership in either of their communities.”
It is this lack of literature that prompted this research and fill the void of available references on this subject.
To answer the primary research question, “How much do music creators know about copyright law,” a mixed-method approach was used. A twenty-two-question Qualtrics survey was conducted over twelve weeks to gather quantitative and qualitative data. The qualitative information was gathered from questions providing an “other (please explain)” option and a place for respondents to elaborate. The target number of participants was fifty. One hundred and thirty-two responses were received, but after removing incomplete entries, a total of fifty-four responses were analyzed.
It must be mentioned that three weeks into the survey, I realized the results were in danger of being skewed. Along with the questions asking if the participants had read a specific law, I provided a link to a corresponding web page which allowed them to read the information in question. This allowed the participants to read the document before answering the question. I revised these questions adding, “(BEFORE taking this survey)” to the end of each relevant question. I have indicated the before and after data in the results section later in this document.
A series of interviews with music creators have also been conducted to provide more qualitative data. These unstructured interviews provide a more in-depth perspective not only on musicians’ understanding of copyright law throughout their careers, but on how that knowledge, or lack there-of, has influenced their careers.
The survey responses of fifty-four participants identifying themselves as music creators were analyzed. Of those, thirty-three (33) list themselves as full-time professional music creators, sixteen (16) part-time, and five (5) as hobbyists. In response to their experience as a music creator, thirty-three (33) claim to have over twenty (21+) years of experience, eighteen (18) have between six and twenty (6-20) years of experience, with the remaining three (3) having five (5) years or less of experience.
The breakdown of participant age range is indicated in figure 1.
Figure 2 shows the breakdown of participant education level.
Copyright Law Awareness
The survey began with topic-related questions that sought to determine the users’ general awareness and knowledge of copyright law. The first three questions asked if they had read the following sections of the U.S. Copyright Act: §102; which deals with copyright in general; §103, which deals with compilations and derivative works; and §107, which defines “fair use.” As mentioned earlier, the survey was revised at the three-week mark to mitigate any skewing of the data presented by offering the respondents a link to the law they were being asked about. Figure 3 compares the responses to the questions before and after this revision.
The comparison in figure 3 suggests many of the participants that completed the survey before the revision opted to click the provided link and read the sections of the Copyright Act before answering the questions. A larger majority of those that completed the survey after the revisions answered that they had not read the copyright language, which parallels the initial hypothesis that most creators have not read these sections of the U.S. Copyright Act.
Participants were asked if they had heard of the Digital Millennium Copyright Act of 1998 (DMCA), and/or the Music Modernization Act (MMA). Figures 4 and 5 show the comparison of the answers before and after the revision.
Once again, the results from the answers after the revisions overwhelmingly indicate creators had not heard of the DMCA and significantly less having heard of the MMA, and a vast majority of those respondents did not read either act.
Should There Be Changes to the Law
For those respondents that answered affirmatively to the questions about having read Sections §102, §103, and §107 of the U.S. Copyright Act, a follow-up question was presented to them for each. Figures 6-8 describe their choice of whether each Section should be:
A clear majority favors leaving the copyright language as is. The rest are divided between altering the law to provide more protection and altering the law to provide more creative freedom.
Two questions regarding the effect of music copyright infringement court rulings were asked in the survey. One question was, “Do you believe the ruling of any court case involving music copyright infringement affected your sense of CREATIVE FREEDOM when making music?” Only 28% of the participants answered “Yes.” Interestingly, with the second question, “Do you believe the ruling of any court case involving music copyright infringement affected your sense of PROTECTION for your copyrights?” 46% answered “Yes.”
For each “Yes” answer to these two questions, a follow-up question was presented. Figure 9 shows the answers to how they felt their creative freedom was affected.
The remaining 13% responded with the “Other (please explain)” option. Only one of those provided any explanation, however. The response was, “Ever since the Robin Thicke vs. Marvin Gaye incident, it’s been in the back of my mind – ‘make sure it doesn’t sound too much like…,’” which suggests this person feels like they may have less creative freedom because of this court ruling.
For those that answered “Yes” to having their sense of COPYRIGHT PROTECTION affected by court rulings, figure 10 shows the breakdown of answers.
The remaining 12% answered “Other” and provided a written response. One person answered, “Can’t say less or more…The MMA was a good step in assuring proper compensation,” which points more to royalty issues than to copyright issues. Another response stated, “I was made uncomfortable by the blurred lines case [Williams v. Gaye] and how it gave legal precedent to a copyright infringement based on groove, which is not covered under copyright.” This indicates that the participant feels they have less protection, although they do not specify a level of severity.
One question regarding sampling was, “What is your position regarding the use of samples of someone else’s recorded music to create new music?” Figure 11 shows the breakdown of the participants’ answers.
The remaining 10% selected “Other” and provided a written response, which was fairly evenly split between favoring direct negotiations with the copyright owner, use of compulsory licenses.
Early discussions with professional music creators and individuals on the business side of the music industry have been very telling. All were transparent about their lack of understanding regarding copyright law. All interviewees are respected music industry professionals and have agreed to be identified.
There was an interesting response from all the interviewees when I approached them for interviews. They each admitted a bit of ignorance on the topic of copyright. Even Shane Barrett, who has worked in music publishing and A&R for years, said “I’m a copyright owner that knows very little about what I own.” Jason White, an acclaimed songwriter and artist based in Nashville, quipped, “if I had to hazard a guess, I’d say most of us don’t know jack about it.”
The U.S. Copyright Act of 1996
Barrett stated that he thinks he may have read parts of the U.S. Copyright Act, and had heard of the “fair use” doctrine, but admitted that, over time, “…some of that information can get a little rusty.” White remembers reading a book titled, The Craft and Business of Songwriting by John Braheny. Regarding the book, he stated that “it had some information about the Copyright Act but that’s all the research I ever did.” When asked about the general understanding of copyright law by the songwriters he has worked with, Barrett said, “to be honest with you, I don’t know what those writers’ individual understandings were because it wasn’t generally talked about.”
As the conversations turned toward the protections provided by copyright, many common misconceptions surfaced. Even hit songwriters believed in the false notion that a defined number of notes or number of seconds of another musical work can be sampled without infringing on someone’s copyright. Everett believed you were allowed to use up to seven notes of someone else’s work. He was shocked to discover that the “Seven Note Rule” was false.
The “Poor Man’s Copyright” entered the conversation. White remembered, “One thing we used to do way back when…we would record a song and put the lyrics in an envelope with a cassette and send it to ourselves via registered mail.” Shawn Byrne, a lauded songwriter, producer, and recording artist added, “I actually know somebody who did it religiously.” The issue presented by the myth of the “Poor Man’s Copyright” is one of incomplete information. When a work is fixed in a tangible form the author(s) are immediately granted ownership of the copyright of that work; “Poor Man’s Copyright” is a reflection of the fixation of a work – so it does prove ownership. However, the copyright owner cannot sue for infringement until the work has been registered with the copyright office. The myth is rooted in truth but leaves out crucial information.
On the topic of officially registering copyrights with the USCO, Byrne admitted, “I don’t think I’ve ever done that,” and White said, “Since [the early 90’s] I’ve just assumed anything that I had recorded was mine and I could prove, you know, that it was [copyrighted].” Both Everett and White, having been published songwriters, did say their publishing companies would register their copyrights with the USCO. Everett says, “We probably don’t register all of them,” highlighting the fact that publishers will tend to register only the songs that will be released on an album or licensed for use.
Impact on the Creative Process
Even without direct knowledge of copyright, all interviewees mentioned they are constantly aware of potential copying when creating. Byrne said, “in fact, it just happened recently.” White offered, “I’m always concerned about being on someone else’s melody.” Publishers also listen for potential problems, as Barrett explained. However, he insinuated that, unless someone mentions a potential issue, music is generally released with an ask for forgiveness, rather than permission, approach.
When asked about their knowledge of any music copyright infringement court rulings, there were various levels of experience with the cases, but none had read any actual court opinions.
The discussion of the “Blurred Lines” case unearthed some consensus regarding how difficult it is to be unique and different, and that it’s almost impossible to create a piece of music that is not at least partially derivative of music from the past. Jace Everett, whose songs have been featured on multiple TV shows and recorded by the likes of Josh Turner, cited his music as an example. He admitted, “I’m a very good example of this because the song “Bad Things” is derivative of about six different songs. Unintentionally, but nonetheless, it is.” He mentions comparisons to Chris Isaak’s song, “Baby Did a Bad Bad Thing” and the Steve Earle song, “Poor Boy.” He admits his song is potentially “a minefield of copyright infringement. But it’s not.”
The discussion of sampling included the previously mentioned “Vogue” case, and the Smith v. Drake case (Estate Of James Oscar Smith, et ano V. Cash Money Records, Inc., et al., 2018). In Smith v. Drake, the estate of jazz artist Jimmy Smith sued Drake for copyright infringement in his song “Pound Cake.” Drake won on the grounds of fair use, as the original work’s (“Jimmy Smith Rap”) intended purpose so greatly differed from the intended purpose in Drake’s song, “Pound Cake.” (Tripathi) The discussion inspired various responses, even though none of the interviewees had any knowledge of the cases.
Barrett compared the use of samples in the “Vogue” case to the common use of producers and engineers grabbing a snare drum hit from the recording of a different song, stating “it’s just a snare hitman… I think there’s a real gray area there.” Byrne takes a different stance: “go make up your own music…come up with your own thing.” White agreed, adding that “[while] technology has made a lot of things easier, one of the things it’s done, in my opinion, is to allow a lot of hacks and amateurs to enter a world in which they don’t really belong.” When asked how he would feel if an artist sampled his work, such as in Smith v. Drake, Byrne replied, “I would want to get paid for that.”
Should Creators Know More?
Despite these individuals’ lack of researching copyright law, they all agreed that creators should educate themselves on the topic. When asked if it’s important for creators to understand the law, White replied, “I would say yes… We’re not typically the kinds of people who are going to do the homework, much less get organized and do something about it. That’s why we’ve been such an easy target for business models that have been evolving and changing and have resulted in emptying our pockets.”
Before starting this research project, it was assumed that a vast majority of music creators would not be well versed in the specifics of copyright law. Survey results after the revision certainly indicate the percentage of creators that have read the law to be quite small. The results of the interview data support this as well.
The proliferation of misconceptions like the “Poor Man’s Copyright,” is still an issue within the creator community. These misconceptions could prove to be a major issue as more and more creators operate independently of labels or publishers. Misunderstanding how, and even if, their works are protected could impact their livelihood.
If nothing else, this research has highlighted a deficit regarding music creators’ understanding of copyright law. Copyright is the backbone of the music industry. It would benefit those that create copyrighted material to fully understand how the law impacts their creations and the music industry as a whole. Interestingly, though this community tends to have little knowledge of the law, they are very vocal when it comes to influencing the laws affecting their industry. For example, before the passage of the MMA, there was a flood of social media posts, from all areas of the music community, in support of the bill. However, if the survey results presented here are an accurate cross-section of that community, less than a quarter of those posts were crafted by people who read the bill. Did they know what they were supporting?
The music industry is on the edge of major changes. Music creators need to be as knowledgeable as possible to intelligently impact those changes. A concerted effort to educate music creators on copyright law, precedent-setting court opinions, and music policy are necessary.
17 U.S. Code § 102—Subject matter of copyright: In general. (1976). LII / Legal Information Institute. https://www.law.cornell.edu/uscode/text/17/102
17 U.S. Code § 103—Subject matter of copyright: Compilations and derivative works. (1976). LII / Legal Information Institute. https://www.law.cornell.edu/uscode/text/17/103
17 U.S. Code § 107—Limitations on exclusive rights: Fair use. (1976). LII / Legal Information Institute. https://www.law.cornell.edu/uscode/text/17/107
Bridgeport Music, Inc. V. Dimension Films, 410 F. 3d 792 (Court of Appeals, 6th Circuit 2005).
Copyright Law of the United States. (2019). https://www.copyright.gov/title17/
Corrado, S. M. (2019). Care for a Sample? De Minimis, Fair Use, Blockchain, and an Approach to an Affordable Music Sampling System for Independent Artists. Fordham Intellectual Property, Media and Entertainment Law Journal, 29(1), 66.
Country Music: Top Country Songs Chart. (2002, December 21). Billboard. https://www.billboard.com/charts/country-songs
Crum, J. (2008). The Day the (Digital) Music Died: Bridgeport, Sampling Infringement, and a Proposed Middle Ground. Brigham Young University Law Review, 2008(3), 29.
Demers, J. T. (2006). Steal This Music: How Intellectual Property Law Affects Musical Creativity. University of Georgia Press.
Eggertsen, C. (2019, July 29). Katy Perry Loses “Dark Horse” Copyright Trial. Billboard. https://www.billboard.com/articles/business/legal-and-management/8524466/katy-perry-dark-horse-guilty-verdict-dr-luke-max
Estate Of James Oscar Smith, et ano. V. Cash Money Records, Inc., et al., No. 14cv2703 (S.D.N.Y. May 15, 2018). https://www.courthousenews.com/wp-content/uploads/2018/05/drake.pdf
Government Bill (House of Commons) C-11 (41-1)—Royal Assent—Copyright Modernization Act—Parliament of Canada, C–11, Canadian Parliament, 1st (2012). https://www.parl.ca/DocumentViewer/en/41-1/bill/C-11/royal-assent
Grand Upright Music v. Warner Bros. Records, Inc., 780 F. Supp. 182 (Dist. Court 1991).
Hemminger, P. (2013). Talking to Songwriters About Copyright and Creativity [University of Calgary]. https://prism.ucalgary.ca/bitstream/handle/11023/478/ucalgary_2013_hemminger_peter.pdf?sequence=2&isAllowed=y
Ingham, T. (2019, May 6). DIY Artists Will Earn More than $1 Billion This Year. No Wonder the Major Labels Want Their Business. Rolling Stone. https://www.rollingstone.com/music/music-features/diy-artists-will-earn-more-than-1-billion-this-year-no-wonder-the-major-labels-want-their-business-830863/
Jace Everett Website. (2019). Jace Everett. http://www.jaceeverett.com/about
Jason White Website. (2019). Jason White. http://jasonwhite.virb.com/story
Kaminsky, M. (2019). 8 Basic Facts Every Musician Should Know About Copyright Law. https://www.legalzoom.com/articles/8-basic-facts-every-musician-should-know-about-copyright-law
Seeger, A. (1992). Ethnomusicology and Music Law. Ethnomusicology, 36(3), 345. https://doi.org/10.2307/851868
Shane Barrett Website. (2019). Shane Barrett Music. https://www.shanebarrettmusic.com
Shawn Byrne Website. (2019). Shawn Byrne. http://www.shawnbyrnecountry.com/about
The 1st Article of the U.S. Constitution. (1787). National Constitution Center – The 1st Article of the U.S. Constitution. http://constitutioncenter.org/interactive-constitution/articles/article-i
VMG Salsoul, LLC v. Ciccone, 824 F. 3d 871 (Court of Appeals, 9th Circuit 2016). https://fairuse.stanford.edu/case/vmg-salsoul-llc-v-ciccone/
Williams v. Gaye, 885 F. 3d 1150 (Court of Appeals, 9th Circuit 2018). https://cdn.ca9.uscourts.gov/datastore/opinions/2018/03/21/15-56880.pdf