Transcript music/Music Licensing Session 3

Current and Future
Issues in Music Law
Donald R. Simon, J.D./LL.M.
Issues in Music Law
Unit 1
Issues in Music Law
Lawrence Lessig
• Professor of Law
at Harvard.
• Director of the
Safra Center for
Ethics.
• Founder of the
Center for
Internet and
Society.
Remix
• Lessig introduces the Read/Write
vs. Read/Only cultures.
• RW Culture: able to both read a file
and make changes to it; creativity
• RO Culture: only allowed to read a
file; regulation.
• In other words, creativity vs.
regulation.
Remix
• Lessig introduces the Read/Write
vs. Read/Only cultures.
• CR, like many other areas of
regulation, is about the balancing of
interests:
•
CR vs. 1st Amendment
•
Creativity vs. Regulation
Issues in Music Law
Issues in Music Law
• Copyright:
• Part of an overall area of law
known as “intellectual property,”
that is, an original creation created
as a result of intellectual activities.
Intellectual
Property
Copyrights
Patents
Trademarks
Issues in Music Law
• Copyright:
• Copyright (“CR”): exclusive right of
control over literary or artistic
creations.
• Primary purpose of CR is to give
creators economic incentive so that
society will benefit from creative
production.
Issues in Music Law
• Copyright:
• Protects an author’s
manner of expression
not the author’s ideas.
• No particular degree of
literary or artist merit is
required—just some
expressive effort.
• Think of CR as a
“bundle of rights.”
©
Issues in Music Law
• Copyright:
• CR owners are afforded virtual
monopolies over their protected
works of expression:
1. To reproduce the work in copies;
2. To prepare derivative works;
3. To distribute copies;
4. To perform the work publicly; and
5. To display the work publicly.
Issues in Music Law
Unit 2
Content Standards
Content Standards
• Whether for moral or political
reasons somebody always seems
to see it fit to dabble in someone
else’s art.
• The ages have produced a great
many examples of this, in many
forms.
Content Standards
• Unfortunately, art is often
misunderstood and can be
controversial.
• And when a controversial artist
suddenly has the ability to speak
to millions of people, someone is
bound to step in.
Content Standards
• As concern for music lyrics rose,
the RIAA stepped in to provide
labels and artists the tools that
alert parents to explicit content.
• In 1985, the RIAA worked with
the National PTA and the Parents
Music Resource Center (PMRC) to
address their concerns regarding
explicit content.
Content Standards
• Senate hearings,
led by Tipper
Gore, featured
opposing
testimony from
the likes of Frank
Zappa, John
Denver, and Dee
Snider (of
Twisted Sister).
Tipper Gore
Content Standards
• The organizations reached an
agreement that certain music
containing explicit lyrics,
including explicit depictions of
violence and sex, would be
identified with labels so parents
could make listening choices for
their children.
Content Standards
• Record labels and artists decide
which of their releases should
receive a PAL Notice indicating
that the release contains explicit
content.
Content Standards
• In making such a determination,
labels and artists should consider:
1. Contemporary cultural morals and
standards;
2. Context in which the material is
used, as some words, phrases,
sounds, or descriptions might be
offensive to parents;
Content Standards
• In making such a determination,
labels and artists should consider:
3. Context of the artist performing the
material;
4. Words can have different meanings
and should not be viewed in
isolation from the music that
accompanies them;
Content Standards
• In making such a determination,
labels and artists should consider:
5. Determination requires sensitivity
and common sense, and that
context, frequency, and emphasis
are obviously important;
Content Standards
• In making such a determination,
labels and artists should consider:
6. Standards apply to the case of a
single track commercially released
as well as to full albums; and
7. A sound recording may contain
strong language or depictions of
violence, sex, or substance abuse,
yet due to other factors may not
merit a PAL Notice.
Issues in Music Law
Unit 3
Net Neutrality
Net Neutrality
• Net neutrality simply means that
the Internet is free and
unrestricted.
• Recently, ISPs like Time Warner
and AT&T have proposed tiered
pricing structures, charging more
for customers who use more
bandwidth.
Net Neutrality
• Advocates no restrictions by ISPs
or governments on consumers’
access to the Internet.
• Specifically, net neutrality would
prevent restrictions on content,
sites, platforms, types of
equipment that may be attached,
and modes of communication.
Net Neutrality
• Here’s one example of how a
society without net neutrality
might work:
• Say you’re an avid fan of Netflix or
Hulu but, since you’re using those
services instead of your cable
company’s on-demand movie rental
platform, your cable company
decides to block all access to Netflix
and Hulu.
Net Neutrality
• Under the FCC’s net
neutrality rules, that
move by your cable
company would be
illegal.
• Instead, cable companies
must allow access to
all legal content crossing
their networks.
Net Neutrality
• Proponents of net neutrality
include consumer advocates,
human rights organizations,
online companies, and some tech
companies.
• Many major Internet application
companies are also advocates of
neutrality.
Net Neutrality
• Yahoo!, Vonage, eBay, and
Amazon are in support.
• Microsoft, along with many
other companies, have also
taken a stance in support of
neutrality regulation.
Net Neutrality
• Cable and ISPs fear that net
neutrality is giving the gov’t too
much control over their networks.
• Some argue that net neutrality is
a violation of the property rights
of ISPs because they produce and
own access to the Internet.
Net Neutrality
• Legislation could
make it difficult for
ISPs to legally
perform necessary
and generally
services such as
filtering spam emails and preventing
the spread of
computer viruses.
Net Neutrality
• Opposition includes: Cato Inst.,
the Competitive Enter. Inst., the
Goldwater Inst., Americans for
Tax Reform, and the Ayn Rand
Inst.
• Opponents also include: hardware
companies and members of the
cable and telecom industries.
Lyrics Licensing
Lyrics Licensing
• The ability to publish the lyrics is
a right owned by a songwriter or
a songwriter’s publishing
company.
• What was once a “no method to
license” system is moving to a
process where publishers have an
avenue to license—and are
working to enforce their licenses.
Lyrics Licensing
• Currently, there are many web
sites featuring song lyrics.
• This offering, however, is
controversial, since some sites
include CRed lyrics offered
without the owner’s permission.
Lyrics Licensing
• Lyrics licenses could be obtained
in North America through one of
the two aggregators: Gracenote
and LyricFind.
Lyrics Licensing
• The first company to provide
legal lyrics was Yahoo!, quickly
followed by MetroLyrics and
Lyrics.com.
• More and more lyric web sites
are beginning to provide legal
lyrics, such as SongMeanings.
Lyrics Licensing
• Many competing lyrics web sites
are still offering unlicensed
content, causing challenges
around the legality and accuracy
of lyrics.
• There is a similar debate
surrounding guitar tablature
sites.
Issues in Music Law
Unit 4
Music Licensing
Music Licensing
• 2 Copyrights involved:
1. Musical composition: (notes and
lyrics) typically owned by the
songwriter or by a music publishing
company; and
2. Sound recording: typically owned by
a recording company (or the artist
themselves, if unsigned).
• In most cases, each CR will need to be
properly licensed.
Music Licensing
Musical Work
Composition
(Notes/Lyrics)
Songwriter/Publisher
Recording
Artist/Recording Company
Music Licensing
• Principal Music Licenses:
• Synchronization Licenses
• Mechanical Licenses
• Performance Licenses
• Master Use Licenses
Music Licensing
• Licenses:
Musical Work
Composition
Recording
(Notes/Lyrics)
(Songwriter or
Publisher)
Synchronization
(Film/TV/Ads.)
Videogram
(DVDs/VHS/etc.)
Performance
(Clubs/Rest./
Broadcasting, etc.
(Artist or
Record Company)
Mechanical
(CDs/Compilations)
Master Use
Performance
(Digital)
Issues in Music Law
• Innovators
Issues in Music Law
• Napster:
• Within months of its
release, Napster was
an Internet sensation.
• Napster encompassed
youth, radical change,
and the free exchange
of information.
Issues in Music Law
• Napster:
• In 1998, long before the lawsuits
and the international furor, Napster
was just an idea in a young college
student’s head.
• Shawn Fanning, then a 19-year-old
freshman at Northeastern
University in Boston, wanted to
solve a problem his roommate was
having.
Issues in Music Law
• Napster:
• Back then,
downloading music
required people to
search for web sites
where songs were
posted. Most were
unreliable.
Issues in Music Law
• Napster:
• So Fanning wrote a simple program
that would search and index music
files.
• It allowed two PCs to communicate
and exchange files over the
Internet.
Issues in Music Law
• Napster:
• By aggregating all
the web sites in one
place, this allowed
music fans to easily
sift through
hundreds of sites.
• The simple download
was a hit.
Issues in Music Law
• Napster:
• Meanwhile, 3,500 miles
away in Washington,
there was a problem
brewing in the
headquarters of the
RIAA, a trade
organization that
represents the five
largest music labels.
Issues in Music Law
• Napster:
• The RIAA eventually accomplished
its goal of serving Napster with a CR
infringement lawsuit, Napster still
turned into a nationwide
phenomenon.
Issues in Music Law
• Napster:
• Networks grew exponentially, as
friends told friends who then told
more friends.
• Intersection of Fanning, the RIAA,
media conglomerates and the opensource community created a laundry
list of unforeseen consequences, the
most profound pitting individual
freedom versus corporate interests.
Issues in Music Law
• Napster:
• The renegade music site forever
changed the way we think about
digital music.
• It struck fear into the heart of
music industry executives
everywhere and forced them to
realize that the global online
music market was waiting to be
served.
Issues in Music Law
• Innovators:
• As seen in the Napster example,
labels and publishers wield all the
power.
• When some new technology comes
along that threatens that power,
they are not immediately receptive-even when new streams of revenue
may be possible.
Issues in Music Law
• Innovators:
• Instead of negotiating for licenses or
risking litigation, some have struck
equity deals whereby the labels
and/or publishers actually own a
piece of the innovator.
Issues in Music Law
• Innovators:
• While this may give the innovator
necessary operating capital,
licensing power, and instant
legitimacy, the trade-off is that they
may lose their autonomy.
• The labels and publishers take equity
stakes, not to help in the success of
the innovator, but ensure their
control of content is maintained.
Issues in Music Law
• Final Project
Issues in Music Law
• Final Project:
• Contact your congressperson and
ask for their position on Net
Neutrality.
• Now research the positions of:
•
Any major media entity (Time Warner,
Viacom, Disney, or News Corp., etc.)
•
A telecommunications provider
(Verizon, Sprint, Comcast, etc.)
Issues in Music Law
• Final Project:
• Contrast the differing
opinions and ways
these different entities
approach the issue.
• What do you think the
impact will be on music
and other
entertainment content?
Issues in Music Law
• Final Project:
• You will use your findings to
prepare a 5-minute PowerPoint
presentation suitable for use in a
classroom.
• You will submit your presentation to
the Dropbox by the end of Unit 9.
Issues in Music Law
• Final Project:
• There is no minimum number of
slides, but you must keep your
presentation to 5 minutes.
• Prepare a script for your
presentation, including an APA
References page.
Issues in Music Law
• Final Project:
• Your script should be in a Word
document and meet the following
requirements:
•
Length should be a minimum of 5
pages, excluding cover and references
page.
•
Viewpoint and purpose should be
clearly established and sustained.
Issues in Music Law
• Final Project:
• Your script should be in a Word
document and meet the following
requirements:
•
Assignment should have correct
grammar, punctuation, etc.
•
Writing should be well ordered, logical
and unified, as well as original and
insightful.
Issues in Music Law
• Final Project:
• Your script should be in a Word
document and meet the following
requirements:
•
Your work should display superior
content, organization, style, and
mechanics.
•
Appropriate citation style (including
parenthetical citations) should be
followed.
Outcomes
Have a
Great Week!