The denial of a general performance right in sound recordings: a policy that facilitates our democratic civil society?

• Author: Sen, Shourin

TABLE OF CONTENTS I. INTRODUCTION II. COPYRIGHT FRAMEWORK A. Performance Royalties B. Statistical Analysis of the Rise of the Performer-Songwriter III. EMERGING BUSINESS STRUCTURES A. Equitable Distribution by Performance Rights Societies B. Industry Expansion C. Dominance of the Musical Recording over Sheet Music D. Spread of the Performer-Songwriter Movement: Fringe Genres E. Spread of the Performer-Songwriter Movement: Mainstream Popular Culture IV. CULTURAL IMPACT A. Increase in the Number of Songwriters B. Differences in Composition Processes C. Politically and Socially Forward-Leaning Content: Historical Analysis D. Politically and Socially Forward-Leaning Content: Empirical Analysis V. LEGISLATIVE IMPLICATIONS A. Efficiency and Fairness B. Copyright as a Means to Facilitate Democratic Civil Society C. The Limited Digital Audio Transmission Right VI. CONCLUSION I. INTRODUCTION

John Coltrane's recording of the song My Favorite Things (1) is an example of his striking ingenuity. On the recording, Coltrane performs a fourteen-minute "overhaul ... of the saccharine show tune" originally from The Sound of Music. (2) Some commentators have claimed that jazz musicians would not play My Favorite Things today, "had Coltrane not established its surprising potential." (3) Despite Coltrane's transformative contributions, the Copyright Act does not grant him, as the performer, the right to exclude others from publicly performing his rendition. (4) Coltrane is not entitled to receive royalties when his recording is played on the radio, on television, or in a public setting such as a restaurant or hotel. (5) Rather, the Copyright Act grants the composers of My Favorite Things, Richard Rodgers and Oscar Hammerstein, the exclusive right to authorize the analog public performance of the song. (6)

For more than three-quarters of a century, the inability of musical performers to profit from the public performance of their recordings has inspired heated controversy. (7) Legal scholars have traditionally cast this controversy as David versus Goliath, with musicians struggling to get their due from the broadcast monoliths. (8) Nearly all of the articles published on the subject bemoan the plight of the musical performer. (9) Members of Congress have also joined the fray, proposing at least thirty ultimately unsuccessful bills, which sought to extend to musical performers a general performance right in sound recordings. (10)

But performers can claim the royalties granted to composers simply by writing their own songs. Congress and legal scholars have failed to recognize that performers hold the power to overcome their inferior status under the Copyright Act by reinventing themselves as performer-songwriters. Indeed, many performers already have. For the most popular hits on Billboard's year-end singles charts, the percentage of songs written or co-written by their performers has steadily increased: 7% in 1950; 22% in 1960; 50% in 1970; 60% in 1980; 64% in 1990; 68% in 2000; and 88% in 2004. (11)

The increase in musicians who perform their own compositions was spurred by changes that occurred in the music industry around the end of World War II. In the 1940s, a combination of market and technological developments enabled a broad swath of performers to reap royalties on their own compositions. These changes included shifts in the ways composition royalties were distributed, the expansion of the music industry, and a rise in the financial importance of the recording. (12) The performer-songwriter movement took root in a cross-section of influential musicians, including Buddy Holly, Dizzy Gillespie, and Charlie Parker. Following their cue, artists such as The Beatles began to compose their own material. (13) The performer-songwriter movement was originally driven by artists' desire to obtain performance royalties on their songs' underlying compositions and to avoid paying reproduction royalties on their albums, however, it has since cascaded into a mainstream cultural norm.

The story could end there; musical performers changed their creative practices to circumvent an ostensibly objectionable law. But this change in behavior has had more far-reaching results. This Article argues that by inducing performers to compose, the Copyright Act changed the content produced by the music industry. When performers compose their own songs, they produce music that is more politically and socially forward-leaning and diverse than the music written by professional songwriters. (14) These new creative practices, in turn, have shaped our democratic civil society.

This Article asserts that the Copyright Act's incentive structure, which led to the rise of the performer-songwriter movement, substantially contributes to the exchange of political ideals that underlies our democratic institutions, while imposing only small costs on performers. This net social gain weighs against the creation of a full public performance right for sound recordings. Part II examines how the Copyright Act's distribution of performance royalties creates incentives for performers to compose, and it traces the statistical growth of the performer-songwriter trend. Part III discusses how emerging technologies in the 1940s created a business structure that enabled performers to earn royalties on their own compositions. It continues by outlining how the performer-songwriter movement cascaded into a mainstream norm. Part IV examines how the increase in performer-songwriters decentralized the production of content by the music industry. It also describes how the creative processes employed by performer-songwriters encourage an emotional investment in their material that often leads to artistically and socially forward-leaning content. Finally, Part V discusses the ways in which the performer-songwriter trend should inform our views on copyright legislation and concludes that Congress should repeal the grant of a digital audio transmission right. (15)

2. COPYRIGHT FRAMEWORK

   Music recordings have two copyrightable elements: 1) the underlying composition, or "musical work," (16) and 2) the recorded performance, or "sound recording." (17) For example, in John Coltrane's recording of My Favorite Things, the composers Rodgers and Hammerstein are granted a copyright in the underlying musical composition. The performer, John Coltrane, is granted a copyright in the collection of musical sounds that he used to realize the underlying composition. (18)

   1. Performance Royalties

      The Copyright Act grants composers the exclusive right to authorize the public performance of their songs. (19) Pursuant to this grant, a composer receives royalties when his composition is performed "publicly", defined as a performance in any "place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered." (20) This includes the playing of recordings of the composition on radio or television, in addition to live performances in public places. (21) Though performers have the right to control the reproduction and distribution of their sound recordings, they do not have the right to authorize most public performances and thus cannot profit from such performances. (22) When Coltrane's rendition of My Favorite Things is played on the radio or in a public establishment, only the owner of the composition is paid a royalty.

      The absence of a full performance right in the Copyright Act reflects the political clout of the broadcast industry. (23) Simply put, the broadcasters "do not want to pay" performers. (24) According to broadcasters, performers already receive a promotional benefit through airplay; any additional payments would represent an unwarranted handout. (25) Some radio and television broadcasters have even "suggested, not entirely with tongue in cheek, that producers and performers should pay them" for their advertising services. (26) According to the broadcast industry "unless it can generate more money by increasing advertising rates, it cannot afford" the proposed royalty payments to musical performers. (27)

      Even the limited rights enjoyed by performers are a relatively recent development. Before 1972, musical performers were not granted any rights at all in their recorded performances. (28) The only element of a sound recording in which an author could enforce a copyright was the underlying composition or musical work. (29) At that time, under a strict textual reading of the 1909 Copyright Act, a person could legally make copies of a Coltrane recording, provided that he compensated the composer of the underlying work. (30) The Sound Recordings Act of 1971 (31) granted performers statutory protection against duplication of their albums, but it did not create a legal entitlement to a royalty when the performers' recordings were publicly performed.

      Performers who record songs written by others are also precluded from collecting the royalties they would have received if another musician were to subsequently perform works they wrote. Thus, when Coltrane recorded My Favorite Things in lieu of composing a new musical work, he denied himself two potential royalty payments: the one he would have received for the public performance of his record, and the royalty payment he would have received every time a subsequent artist performed his new song.

      The Copyright Act, as currently implemented, also creates incentives for performers to compose because it provides limited protection for musical arrangements. (32) A musician rarely records a song exactly as it was played by an earlier artist. Performers commonly rework the melody, lyrics, harmony, or orchestration. (33) The arranging of an underlying composition is an art in itself, and it has a considerable effect on the impact of a song. (34)

      The Copyright Act classifies "musical arrangement[s]" and adaptations of "preexisting" songs as "derivative work[s]." (35) The...