Whose Song Is That? Searching for Equity and Inspiration for Music Vocalists under the Copyright Act

By Chisolm, Tuneen E. | Yale Journal of Law & Technology, Annual 2017 | Go to article overview

Whose Song Is That? Searching for Equity and Inspiration for Music Vocalists under the Copyright Act


Chisolm, Tuneen E., Yale Journal of Law & Technology


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. …

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