Fix It in the Mix: Disaggregating the Record Producer's Copyright
Hill, Phil, Harvard Journal of Law & Technology
TABLE OF CONTENTS I. INTRODUCTION II. JOINT AUTHORSHIP AND THE PRODUCER'S COPYRIGHT A. Contribution B. Intent C. Authorization D. Terminations III. THE RECORD-MAKING PROCESS AND KEY PLAYERS A. Artists B. Producers C. Engineers IV. FRAMEWORK FOR INQUIRING INTO THE PRODUCER'S COPYRIGHT V. SONIC CONTRIBUTIONS IN THE RECORD-MAKING PROCESS A. Microphone Selection B. The Soundstage 1. From Mono to Stereo 2. Panorama in Studio Recordings 3. Additional Soundstage Manipulations VI. CONCLUSION
"UNTIL THE LATE SIXTIES, THE RECORDING STUDIO HAD BEEN A PASSIVE TRANSMITTER. A BAND WENT INTO THE STUDIO WITH THE AIM OF GETTING A WELL-REHEARSED, PRE-EXISTING SONG ON TO TAPE AS FAITHFULLY AS POSSIBLE. 'FIDELITY' WAS A BIG WORD THEN."
--BRIAN ENO (1)
"MODERN MUSIC OWES A GREAT DEBT TO THE BEHIND-THE-STUDIO-GLASS 'MAGICIANS' WHO DISCOVERED THAT AS LONG AS A 'SOUNDSCAPE' COULD BE IMAGINED, WITH A FEW 'TRICKS' AND 'SLEIGHTS' IT COULD PROBABLY BE BROUGHT INTO YOUR HOME, YOUR CAR OR YOUR LOCAL FAST FOOD RESTAURANT."
--ALAN PARSONS (2)
"We'll fix it in the mix" has long been a regrettably common refrain during recording sessions. (3) If the singer is flat or the guitar is wimpy or the toms ring too much--"don't worry, we'll fix it in the mix." The phrase facilitates progress, preventing the session from getting mired in (apparently) minor details that can (hopefully) be remedied later on. (4) This philosophy aptly describes Congress's approach to the copyright interests that record producers may enjoy in the sound recordings they produce, which I will refer to as the "producer's copyright."
Even before passing the Copyright Act of 1976 ("1976 Act"), (5) its framers expected that there would "usually" be a producer's copyright. (6) Since the 1976 Act's passage, such copyrights have rarely been litigated and, when they have, courts have not been required to closely analyze the sufficiency of a producer's contribution under general joint authorship principles. (7) Consequently, the ill-defined producer's copyright has not been problematic. However, the producer's copyright could figure prominently in copyright termination disputes starting in 2013, (8) at which time courts will likely be compelled to scrutinize the producer's role more carefully.
Courts confronted with the producer's copyright will immediately encounter at least three definitional issues. First, the producer's role is highly elastic. (9) The House Report of the 1976 Act noted that, in some instances, a producer's contribution could be: (1) so significant that the producer is the sole author, (2) sufficient to share joint authorship with the artist, or (3) so minimal that the producer enjoys no interest whatsoever. (10) Producers, therefore, cannot be treated as joint authors per se. Thus, it is necessary to craft a two-part inquiry that first isolates the producer's contributions and then determines whether those contributions are sufficient under joint authorship principles.
Second, defining the ways a producer can contribute to a sound recording requires a more accurate understanding of the record-making process than authorities have demonstrated. For example, citing a Copyright Office official, Professor Melville Nimmer suggests that the following may sustain a producer's copyright: (1) quadraphonic panning, (2) equalizing, (3) changing the highs and lows, (4) providing more bass and treble, (5) adding echo, and (6) abridging by making discretionary and non-obvious internal cuts. (11) There are at least two problems with this list. First, items (2), (3), and (4) are all the same thing: frequency equalization. (12) Second, and more importantly, it is generally one of several types of engineers who perform these operations--not the producer. (13)
This reveals a third definitional problem: the record-making process often involves a host of creative participants, each with colorable co-authorship claims, whose relative contributions must be defined and examined. …