Whose Song Is That? Searching For Equity and Inspiration For Music Vocalists Under the Copyright Act.

• Author: Chisolm, Tuneen E.

Table of Contents I. INTRODUCTION II. OVERVIEW OF THE CURRENT SCHEME OF PROTECTION FOR NONDRAMATIC MUSIC-RELATED WORKS UNDER THE COPYRIGHT ACT A. FUNDAMENTAL PURPOSE BEHIND COPYRIGHT B. ORIGINALITY AND FIXATION REQUIREMENTS C. COPYRIGHT IN MUSIC COMPOSITIONS AND THE IMPACT OF COMPULSORY LICENSES 1. Compulsory Licensing and Covers 2. The Limited Protections for Transformational Covers D. COPYRIGHT IN SOUND RECORDINGS AND ITS LIMITATIONS E. AUTHORSHIP UNDER THE COPYRIGHT ACT III. THE INEQUITABLE PROTECTION GAP A. ERA OF ERROR--HISTORICAL DISREGARD OF MUSICAL PERFORMANCE B. "NONDRAMATIC MUSIC" AND ITS PSYCHOLOGICAL ATTRIBUTES C. MUSIC VOCALIST AUTHORSHIP D. THE PREJUDICIAL IMPACT OF THE FIXATION REQUIREMENT, AS APPLIED E. THE EFFECT OF LIMITED PROTECTIONS FOR TRANSFORMATIONAL COVERS AND SOUND RECORDINGS IV. PREVAILING INDUSTRY PRACTICES THAT CONTROL COPYRIGHT OWNERSHIP AND ALLOCATION OF PASSIVE INCOME A. RECORD LABEL LEVERAGE OVER ARTISTS B. CRITICAL RIGHTS AND OBLIGATIONS UNDER RECORDING CONTRACTS 1. Duration and Exclusivity 2. Ownership of Masters and Sound Recording Copyrights 3. Compensation and Artist Royalty Calculations C. THE IMPACT OF 360 DEALS AND THE CONTROLLED COMPOSITION CLAUSE D. PASSIVE INCOME SOURCES FOR RECORDING ARTISTS VERSUS SONGWRITERS 1. Passive Income Sources for Songwriters 2. Record-related Passive Income for Recording Artists 3. Passive Income Comparisons--Songwriters versus Recording Artists V. WHY COPYRIGHT LAW MUST ADDRESS THESE INEQUITIES A. FEATURED VOCALISTS AS DISTINGUISHED FROM PERFORMERS IN OTHER PERFORMING ARTS B. LIMITATIONS OF THE SOUND RECORDING COPYRIGHT TERMINATION CLAUSE 1. Termination under Sections 203 and 304 2. Authorship Issues that Cloud the Right to Terminate for Sound Recordings 3. Ownership of the Master Recordings versus Ownership of Copyrights 4. The Derivative Works Limitation VI. PROPOSED SOLUTION A. TREAT THE MUSIC VOCALIST'S AUDITORY PERFORMANCE AS A DISCRETE COPYRIGHTABLE WORK B. TREAT FIXATION OF THE APPLIED MUSIC COMPOSITION AS FIXATION OF COMPOSITIONS IS TREATED C. AFFORD THE APPLIED COMPOSITION ALL RIGHTS AVAILABLE UNDER SECTION 106 D. SUBJECT THE EXCLUSIVE RIGHT TO COPY APPLIED COMPOSITIONS TO COMPULSORY MECHANICAL LICENSE AND MODIFY THE STATUTORY ROYALTY RATE FOR "MIMICKING COVERS" E. LIMIT THE CURRENT RIGHT TO MAKE DERIVATIVE WORKS OF SOUND RECORDINGS VII. CONCLUSION I. INTRODUCTION

For music-related works, the Copyright Act has worked most favorably toward music composers/songwriters, (1) while working to the disadvantage of music vocalists in a number of significant respects. At the core of this disparity is the limited recognition and treatment of the vocalist's performance; instead of being treated as a copyrightable work that can subsist on its own, the performance is viewed only as a creative contribution to a sound recording. (2) But, of course, the success of even the best written lyrical song depends upon the music vocalist's performance of it. The talent-specific vocal stylings of certain recording artists have been responsible for astronomically propelling sales and public recognition of songs written and sometimes even previously recorded by other artists with limited or no commercial success. (3) That point is readily illustrated by gauging public recognition based upon which song version begins playing mentally when one is presented with this list: "Hound Dog" (4); "Nothing Compares 2 U" (5); "Tainted Love" (6); "Respect" (7); "Try a Little Tenderness" (8); and "I Will Always Love You." For each of these, a cover eclipsed the original recording in popularity and sales.

Yet, non-composer music vocalists typically end up with no copyright from their performance. The Copyright Act is currently construed to recognize only two nondramatic music-related works for protection: the musical composition and the sound recording. The composition copyright in the musical arrangement and lyrics is owned by the songwriter and affiliated publishing company, and--absent an independent artist scenario or extraordinary bargaining power that may only come after an artist has proven substantial commercial worth--the sound recording copyright in the artist's recorded performance is typically owned by the record label that arranges to fix the performance in a recording. Under the Copyright Act as it now stands, the rights provided for music composers--those who create the score and lyrics of musical works--far outweigh the rights provided for music vocalists, to the extent any rights are provided to vocalists at all due to the limited protections for sound recordings.

Consider, for example, the song "I Will Always Love You." Ask the average person who sings the song and, undoubtedly, the answer is likely to be: (the late) Whitney Houston. Alternatively, ask anyone bold enough to sing that same song aloud and what you hear is most likely to be an attempt at the rendition performed by Houston for her first motion picture film, "The Bodyguard." Then ask who wrote the song and chances are that, of the percentage of people who realize the composer was someone other than Houston, few will know that "I Will Always Love You" was written and even first performed by renowned country singer-songwriter Dolly Parton. Parton penned the song and originally released it as her own single in 1974. (9) Billboard--the industry's leading source for music trends and innovation--reports that Parton's single "did fairly well, topping the country songs chart" and eventually reached the Hot 100 when Parton re-released the single in 1982, having included the song on the soundtrack of her film "The Best Little Whorehouse in Texas." (10) Houston's iconic cover ten years later, however, catapulted the song to everlasting mainstream recognition. (11) Billboard reports that Houston's rendition reached number one on the Billboard Hot 100 and stayed there to top the chart for fourteen weeks in 1992, making the single the longest-running No. 1 single in history at that time. (12) The day after Houston's death in February 2012, the song, known as her "signature hit," reentered the Billboard Hot 100 at No. 7, due to an "enormous resurgence in digital sales ... and radio airplay." (13) Such posthumous sales and airplay is not uncommon.

Radio stations routinely dedicate hours of airplay to songs sung by recently deceased music vocalists, in tribute to the vocalist's "legacy" or "body of work." Such was the case when Elvis Presley passed away in August of 1977, and it continues to be so, as illustrated by the back-to-back airplay of songs by Prince Rogers Nelson upon the news of his passing in April of 2016. Elvis and Prince were both internationally renowned recording artists; however, Elvis sung songs written by others, while Prince wrote most of the songs he performed and also wrote for other vocalists. Such a distinction significantly impacts the magnitude of the passive income streams available to music vocalists in either position. Although Elvis was able to acquire a shared copyright interest in songs he sang but did not write, (14) thereby accessing royalties reserved for composers, that scenario is more the exception than it is the rule.

The vocalist is seen as the song's source because it is the vocalist's embodiment of the song with which the public identifies. Dancers cannot dance to sheet music. Concert goers won't respond to a lead sheet. Certainly, no musical composition can come alive until a musician plays it and no lyrical composition can truly come alive until a music vocalist sings it. The vocalist serves that function, but often also makes a creative contribution by interpreting the song to deliver a unique performance that could even qualify as a new arrangement of the composition.

The talent-specific vocal stylings of Houston resulted in an original creative contribution responsible for propelling Parton's composition beyond the field of country music recognition to international acclaim. (15) Houston's version reportedly earned Parton millions of dollars, far surpassing what Parton's own version had earned her. While the "enormous resurgence" in digital sales and radio airplay following Houston's death was a symbolic tribute to her artistry, it is quite possible that Parton and Houston's record label benefitted more financially from the resurgence than did Houston's estate. As the composer, Parton owns the copyright in the original music and lyrics; (16) consequently, Parton got paid for every unit of sales and radio play. As for Houston's performance that was fixed in the sound recording for her single--available as physical and digital singles and on no less than six albums (17)--Houston's record label owns that copyright and thus was paid for each unit of sale and digital performance.

The availability of passive income streams from the sale or licensing of copyrights is a prime economic incentive for the creation of artistic works. But under the Copyright Act and typical music industry contractual arrangements, music royalties are primarily routed to composers, publishing companies, and record labels, with mere cents on each dollar of certain sound recording copyright revenues going to the non-composer music vocalist who made the song popular and fueled sales. Due to the lack of passive income, it is not unheard of for music vocalists with millions of records sold to live a financially strapped existence, (18) and even die in poverty, after they are unable to maintain a career of touring. As currently written and applied, the Copyright Act effectively affords no rights to music vocalists, particularly those who perform songs written by someone else.

This article examines the inequities that result for music vocalists and argues for expansion of the rights afforded under the Copyright Act to include, for music vocalists, an inalienable, sole right of authorship in their performance as an "applied composition," separate from the sound recording copyright...