Today’s Question for Working Musicians: Copyright and/or Labor Rights?

copyrightLast month I read Dada Drummer‘s post “Musicians Need Labor Rights More than Copyrights” – AI is a New Technology, but an Old Fight. APR 18, 2023. Why we need both copyright and labor rights.

Since it’s publishing I’ve talked and discussed this post with various competent people. Here is one long and comprehensive comment by musician, composer and musician rights advocate Ken Hatfield which I want to share with you, my dear readers.

Sohrab (chief editor)

Why We Need Both Copyright and Labor Rights

Text by Ken Hatfield

I hardly know where to start. Dada Drummer has some very good and valid points. But he mixes things and blurs the very distinctions that could explain why and how our multi-layered and over complicated system(s) (intended to “protect” rights owners), actually function, though I concede the system does not function well.

I’ll illustrate a few places where either his writing is unclear or his understanding of the cause-and-effect correlation between the contending “rights” in his primary point (i.e., copyright versus labor rights) is grossly misrepresented… and over simplified.

I’ll leave aside the whole AI kerfuffle for now since so much of the current debate for and/or against it pertains to copyright issues (i.e., does AI infringe on copyright and/or should copyright protection be extended to works generated by AI, etc.), which are moot points if we have no copyright protection.

When Dada Drummer asks: “What is copyright meant to achieve?” That is a very good question (since many do not understand it). I concur with his observation: “Not the protection of corporate power….” But that answer doesn’t explain what copyright is for… it only demonstrates an abusive misuse of copyright.

One of the very first laws the first US government passed was copyright law. Here is what our founding fathers intended it to do:

“In 1790, the Constitution enshrined in American law the principle that an author of a work may reap the fruits of his or her intellectual creativity for a limited amount of time. Copyright protects through law original works of authorship including literary, dramatic, musical, architectural, cartographic, choreographic, pantomimic, pictorial, graphic, sculptural, and audiovisual creations.

Today, copyright provides to an author the exclusive right to reproduce and distribute his or her work. It also provides, in the case of certain works, a right to publicly perform or display the work; in the case of sound recordings, to perform the work publicly by means of a digital audio transmission. The author may also grant to others a license to engage in these activities. The author, however, may not bar anyone from using an idea, procedure, process, slogan, principle, or discovery.”

Copyright law in the United States has changed often (it’s been amended, revised and/or rewritten over 130 times in 230 years) since the Constitution granted Congress the power to provide protection to authors’ creative works. It will continue to evolve but will never become obsolete, as long as we adhere to its basic principle that the creator of a work “may reap the fruits of his or her intellectual creativity for a limited amount of time.” As the name implies, copyright means the right (which belongs by moral law to the creator of a work) to determine who can (and who cannot) legally make copies of their work, aka: intellectual property, and who can profit from such work.

Dada Drummer is right that corporate consolidation of copyrights is a major problem. But how did that happen? It happened either because labels “acquired” singer-songwriters’ publishing rights as part of record deals artists agreed to or because successful musicians like Bob Dylan and David Crosby sold their publishing rights for huge advance paydays…to giant corporate publishers like UMG (Universal Music Group).

There is a long tradition of this in the US with ASCAP and BMI and SESAC getting into bidding wars to persuade composer/songwriters with lucrative catalogues to leave one PRO for the other. That process actually empowers big name artists, much like the CBAs (collective bargaining agreements) in the NBA help line the pockets of famous basketball players. That is labor empowerment in action. Of course, like the rest of the world economy, it rewards the very few at the top disproportionately, and some may say it does so at the expense of the lesser “non-famous” players.

But this is an aspect of how such markets developed.

I agree it is unfair… but life is unfair.

Copyright is intended to protect the fruits of the labor of “creators of content”. Any remunerative distinction between workers and their work is erroneous in such cases. And in the case of either works for hire or the sale and/or licensing of owners’ rights, copyright protects the publishers of such works as well. This applies to all content, but I’ll focus on music to simplify things.

Copyright is not intended to “protect” the unique aspects of an individual performer or band’s sound, approach, style or look. That stuff can be and sometimes is protected by aspects of the mechanical rights, which are traditionally the property of the rights owner of the “sound recording” (including but not limited to videos, which are supposed to generate synch fees as well, but rarely do). These rights owners are generally the record company that produced, released, and promoted said sound recording.

This can get very confusing because the mechanical rights are traditionally administered by the publisher (which may also be the record company).

So, when Bette Midler or Tom Petty sued a company for appropriating the sound of their voices in a commercial use, that alone would not be covered by copyright.  AI may make this all easier for those inclined to mimic creativity by appropriation… but the underlying work, such as a song, which AI may appropriate, is still protected by copyright. An artist’s signature sound may be covered by some aspects of ownership of some sound recordings, just like one’s likeness may be protected by other laws, but not likely by copyright. Such transgressions would have to be adjudicated on a case-by-case basis in the courts.

Now if either Tom or Bette wrote the song in question, copyright would protect that. And no ad agency or company in their right mind would cross that line, because of the financial and legal peril it would present.

Let me give you an example. A few years after John Lennon died, Nike invented their “air-sole” for their sneakers. Nike wanted to use The Beatles’ recording of “Revolution” for an ad campaign promoting their revolutionary new technology in sneaker design. Nike approached Yoko Ono about using The Beatles’ song. She granted the right to use The Beatles’ recording. But she was not the heir to that right. She was only the heir to the copyright of the actual song. Apple Records was the rights owner of the sound recording. Nike got sued for $20 million (a lot of money back then) and quickly removed the offending ad.

In the mid to late 1980s I wrote a lot of music for TV and film. And I played on far more sessions as a side man than I ever worked on as a composer or arranger. I made a good living doing all those gigs.

Back then, if a major record label asked for too much money for a license for a sound recording the label owned the rights to, it was a common practice for a producer of things ranging from indie films to commercials, to Karaoke, to those “Sweating to The Hits” cassette tapes and later videos for workouts, to simply re-record the tracks that were too prohibitively expensive to license. I played on dozens of those re-recordings. We tried to evoke the originals we were “covering” as closely as possible, just like any cover band in a bar does. Occasionally we got so close that the producers received cease and desist notices, but they rarely got sued. The producers just paid the compulsory licensing fees to the appropriate PRO (ASCAP, BMI or later SESAC) for the songs we re-recorded.

Two songs come to mind immediately: “Born to Be Wild” (by Steppenwolf) and “Reeling in The Years” (by Steely Dan). We copied everything… I even copied Elliot Randall’s solo on “Reeling in The Years”. But since the songwriters and their publishers got paid, the record labels (who may have owned some of the publishing too) did not sue Richard Simmons (who produced and was featured in those “Sweating to The Hits” cassettes and videos).

Nowadays the prices for licensing music for film, TV and commercials are so low that cover versions are not needed as much as in the past.

However, the distinction between the various rights connected to sound recordings and who administers and pays royalties for them, is still very important.

You have Composer and Publisher royalties handled by the PROs (like ASCAP and BMI), the Label and Artist royalties (excluded for terrestrial broadcasts in the US) handled by SoundExchange, and the mechanical rights royalties administered by publishers and paid by the MLC. There are also supposed to be synchronization fees paid whenever audio and video are combined (be it live or with music added later to video, or vice-versa). But the generation that grew up with the internet ignores synch fees almost entirely.

I agree we need labor law protections. But not at the expense of copyright protections. Those copyrights are often the only pensions aging musicians have. When they wrote a hit in their youth and that song continues to generate huge revenue for digital and terrestrial broadcast entities (often parts of even larger corporations than UMG), why should the person(s) that wrote that hit song not get a share of the revenue their work still generates, especially when they are too old to tour?

Labor laws need major revisions to protect all workers especially gig economy workers, including the original gig workers: MUSICIANS!

But there are too many that want simple solutions to complicated problems and some that even advocate things that pit one group of content creators against another. We need all content creators to be protected. And that requires solidarity.

It is a straw man to pit copyright against labor rights. We need both. The sanctity of the idea must be protected. No one can cover, arrange, sample, remix, data mine or content harvest via AI a song that does not exist. Those songs and their writers need the protection only copyright can afford. They need copyright despite corporate manipulation of the copyright laws, just as the workers need labor law (and revisions of it), despite mismanagement by labor unions. And all those rights need to be extended to all gig workers.

We also need reform of the antitrust laws (to prevent mergers and hostile takeovers of companies that may treat content creators fairly when giant companies don’t), and we need reform of the tax code (to eliminate leveraged buyouts of competitor or start-up companies, a process that stifles competition). We need reforms of safe harbors like section 512 of the DMCA and section 230 of the CDA (which limit the liability of DSPs that facilitate and profit from activities that are illegal offline, like copyright infringement), and we need to reform antiquated provisions of labor laws like the secondary boycott prohibition in the Taft- Hartley Act (which prohibits economic actions against anyone that is NOT your primary employer… we all know that freelancers have no “primary employer”!). And we need to enforce the existing antitrust laws while we reform them and return them to what they were before Reagan castrated them.

I could go on… but you get the picture.

To recap: (1) copyright is not our enemy. Consolidation of copyrights may be one of our problems, but let’s not throw the baby out with the bath water because of corporate greed and malfeasance. And (2) we desperately need to change the corporate climate and how it dominates our consumer culture, the same consumer culture in which our music is consumed – whether live or recorded.

In any given lifetime we’ll all spend more time listening to recorded music than live music. Recorded music shapes people’s perception of the value of ALL music. If we don’t fix our problems with abysmal remuneration rates for recorded music, we are not likely to fix the inequities in other arenas like live music.

When we get paid (by law, rates set by the 3 judge rate court) the abysmal rate of 0.0026 cents for commercial subscription streams, with 30% of that taken off the top by the digital distributors ALL streamers require indie artists to use to submit their music for streaming, and with most streamers using a pro rata scheme to pay royalties (as opposed to a user-centric scheme), no musicians but the biggest stars can make any real money from streaming. And because of the pro rata payment method streamers use, most subscriber’s fees do not even go to the artists the subscribers listen to, which means that in effect no one can support any indie artist by listening on any of the streaming services… at least not financially.

Consequently, I believe we can put the most pressure for change on the current status quo by advocating that our fans support us by buying physical product (vinyl & CDs), that they only download from artist sites, or sites that are transparent about royalties/payments and that give equitable percentages to artists, and most importantly that they attend our live performances. This will require many to forgo the convenience of streaming until we get equitable treatment from streaming platforms.

If enough music fans do that and enough musicians tell their fans how bad things are for us, perhaps we can wrest a fairer share of the profits our work generates back from greedy corporations.

Despite once having good intentions, most big tech companies have been forced by a combination of corporate structure and the tax code to engage in predatory business practices… like those that inhabit the same shark infested corporate waters tech now must swim in to raise capital for expansion of their businesses. That “business reality” is at the heart of the greed that drives most corporate enterprises, tech based or otherwise. That corporate climate predates Big Tech. But tech has learned pretty quickly that in shark infested waters you must eat… or be eaten!

Plus, tech exploits the added advantages of: (1) their incredible innovations, (2) the safe harbors in law that exempt them from obligations of the legacy industries whose market share tech has been poaching for almost a quarter century, and (3) the search engines they own or access, which function as the largest bully pulpit in the history of the human race, which they use to obfuscate what their real agenda is… lying for their advantage and to our detriment.

We need to address ALL that in order to have a chance of reforming what is left of our industry! Without such reforms we will be perpetually tilting at windmills while greedy corporations eat our lunches, until the entire corrupt status quo implodes in a manifestation of sociological entropy. None of us are likely to live to see that day. So, let’s fight for equitable treatment for all content creators NOW!