Editor’s note: Aside from a few Clash lyrics, your Idolators know nothing about the law. Which is why we’re proud to present another missive from the IdoLawyer, an anonymous California attorney who will be weighing in on various music-related matters. While her column isn’t intended as legal advice, it is sage advice nontheless, and we’ve asked her to take a look at the recent Internet-radio royalty rates controversy:
If you’re a lawyer and a music lover, you’re going to be asked why you’re not doing music law. The answer is easy: Nothing will make you hate music more than having to read about copyright–especially when the legalese in this field is so dry, songs are referred to as “nondramatic musical works.” While this description may be true of the latest Shins album, your Idolawyer was not going stand idly by while “law” threatened to annihilate the Internet radio that was playing those Shins songs for three months before the album’s release.
It was time to jump into the briar patch.
Here’s the issue: The Copyright Royalty Board, which is an arm of the Library of Congress, recently set potentially devastingly high royalty rates for Internet radio broadcasters. The ruling affects independent Internet outlets, as well as the Internet operations of traditional “terrestrial” radio stations, who otherwise pay a relatively low rate.. And while the legalese can be mind-numbingly dull and doctorate-level difficult, we’ll attempt here to make it relatively painless. The basic concept to understand is that every song has several different owners–including the composer, the publisher, and the record label–and each of these entities gets to drop a bucket in the song’s income stream. Modern-day copyright law is the result of years of Three Stooges-style wakka-wakka-wakka bickering between Congress, industry and end-users about who gets paid, and for what.
In the Internet radio situation, a 1998 law established that both the record labels (who own the “sound recordings”) and the composers (who own the musical concepts), have a “performance right” in music that is played on Internet radio. For terrestrial radio, there is no “performance right” attached to the sound recording, which, again, the labels own. So the composers get paid, through ASCAP or its equivalent, and the labels don’t. The labels take the hit because, in theory, they get great publicity from terrestrial airplay–which, by the way, would be a semi-decent album title for the next Nada Surf outing (just a thought!).
Don’t concern yourself with how we got to splitting these particular hairs. If you want to preserve any non-cynical view of the industry you may be harboring, it’s best just to look for the humor. Sometimes fuddy-duddyish copyright cases are good for a laugh, and have changed the law by being so very out of touch. Truly extreme court decisions can force Congress to wake up to the fact that the law needs to be, in effect, remastered.
One of the few actually entertaining entertainment law cases, for example, is White-Smith Music Publishing Company vs. Apollo, which was a litigation landmark of 1908 (picture Lars Ulrich playing ragtime wearing a bowler hat, and you’re there). In the 1900s, there were approximately 75,000 player pianos in use in the United States and over one million player piano music sheets in circulation. The question before the Supreme Court was whether the perforated rolls of paper that told the player pianos what to do counted as “copies” of protected songs.
The Court took great pains to define the word “copy” and to make sense of how a song, which is more ethereal than other published things, could be copyrighted. But the justices ultimately concluded that the copyright laws, as written, didn’t protect the “concept” of the song. The copyright was limited to the tangible result: the music sheet. Because no one could look at a perforated player piano roll and “see” music, it could hardly be called a copy of the original song.
This decision, as the Court itself recognized, strained the logic of authorship, ownership and payment. Sure enough, Congress created the “mechanical” copyright the very next year, to protect reproductions of music that involve some mechanical intermediary–any recording, taping, or burning is a “mechanical” reproduction. If this piece of plastic makes that machine play the song, it’s a mechanical reproduction that will infringe copyright if not licensed. At first this was relevant for the phonograph: You can’t “see” music on it, but in the right machine, that LP produces an exact replica of the original song. Now it’s true for tapes, CDs, MP3s, and the DVDs that play movies with songs on the soundtrack.
Today, this idea of copying seems old hat and obvious. It would seem absurd to claim that your CD or even your MP3, legal or illegal, wasn’t a “copy” of a song just because you couldn’t see the music printed in the plastic. How many musicians today even know how to read sheet music? (Approximately seven, so far as we could tell.) But how many would know how to hit a note even if they could see it? The sound, not the score, is how we understand music today. And oftentimes style even trumps sound. What’s important is that the law eventually changed to reflect a common-sensical approach to ownership of music.
Given where technology was in the 1900s, it’s not surprising that people had connected the idea of duplication solely to what could be seen. And perhaps one day we’ll look back with the same giggling condescension at the current structure of our law – treating digital broadcasts (outdatedly called “webcasts”) as somehow different from “terrestrial” broadcasts. The fight to keep this artificial distinction isn’t based on principle; it’s based on the fact that the record labels themselves may soon be as culturally relevant, and as financially stable, as the player piano industry is today.