Money, its a crime.
Share it fairly but don't take a slice of my pie.
Written by Roger Waters
Performed by Pink Floyd
Recorded on The Dark Side of the Moon (Capitol, 1973)
The structure of the music business is insanely complicated, but I'm going to try to simplify it for you. It's all about money. Who pays it and who gets it and how. We're going to sort out the basics during class by breaking down five main activities: composing, performing, recording, broadcasting and merchandising.
Basic Legal Resources on the Music Business
If you're serious about really understanding what is going on in the music business, and envision further study or work in this field, you probably need to own Donald Passman's book, All You Need to Know About the Music Business (it really is). For those interested in Canada specifically, Sanderson's book, Musicians and the Law in Canada. An organization called Music Canada (formerly CRIA, the Canadian Recording Industry Association), provides this guide on music licensing in Canada. There are a slew of other resources, such as The Musician's Guide to Licensing Music, which you might find helpful. And here is an interesting table from the Future of Music Coalition, which gives some concrete examples of new business models in music. Here is a UK-specific overview of the music industry structure.
For the kind of analysis law professors tend to like, Chapters 2 and 3 of Fisher's book, Promises to Keep also give you a good snapshot of the American context. Pages 679-702 of Lydia Pallas Loren's 2003 article published in the Case Western Reserve Law Review, "Untangling the Web of Music Copyrights," gives you a much more technical description of aspects of the music copyright landscape in the United States.
But some of the best online business and legal resources I'm aware of are available through Artists House Music, a site of particular relevance to those of you who are artists looking for further advice. You could spend hours surfing that site, though I obviously don't expect you to do so for this class. Bookmark this site if you're interested in a career in the field.
The backbone of the modern music business is intellectual property. But it wasn't always that way. If you're interested in an historical perspective on the ownership of music, I'd encourage you to check out this article, "Who's Music is it Anyway?" by Michael Carrol of American University's Washington College of Law. If you read any of this, make it the introduction, from pages 1405-1412, and summary of different periods in history, from pages 1487-1491. I also recommend this book, Quarter Notes and Bank Notes: The Economics of Music Composition in the Eighteenth and Nineteenth Centuries, if you're interested in further in-depth research on this topic.
For our first substantive class exploring the structure of music-related copyrights in Canada, you can probably skip (but do skim) all of the above, and just read my most recent research on "Copyright Royalty Stacking," -- I'll email it to you -- which is forthcoming in Michael Geist's next book about the "copyright quintet," 5 path-breaking decisions of the Supreme Court of Canada released last summer. I'll distribute my draft work-in-progress for you to review and critique. It not only introduces the issues, it gives you a glimpse at the process of writing a research paper -- something you'll be expected to do for your term project.
Also, during this class, talk a lot about "collective administration" of copyrights and the rights-clearing process. That discussion will probably only makes sense after you get some more background on collective management. One place to look is Wikipedia under "Performance Rights Organisation." Another go-to resource is the Copyright Board of Canada's page on "Copyright Collective Societies: Music." I'm going to walk you through all of these organizations during class. That includes providing an overview of key Canadian organizations like SOCAN, NRCC, CMRRA, CPCC and others. You also need to know about American organizations like Harry Fox Agency, ASCAP, BMI, and SESAC, NMPA. Collectives exist everywhere in the world, so you could if you wish also check out GEMA (Germany), PRS (U.K.), SACEM (France), SGAE (Spain) and APRA (Australia & New Zealand).
The economics of the music are industry are changing quickly. You can read any number of articles highlighting how and why. I like this one, "a UK-specific overview of the music industry structure," published a couple of years ago in Rolling Stone. Here are Passman's comments about the future of music, which lay the groundwork nice for our next class together:
Spin Me Right Round: The 360 Deal and Other IP Rights
In addition to business models based on copyrights, the other thing I want to talk about during this lesson is what's known as the "360 deal." I know there's already a lot being covered during this lesson, but there are a couple more pages I really hope you can check out. That includes this NYT article, "Band as Brand," and it would be great if you can soak up some of the multimedia links around it. You might also have a look at this response by Lefsetz as well as this article from the Huffington Post.
To get a fuller sense of how "branding" is protected in the music business, we need to get into some more legal details. In the U.S., The Lanham Act allows what have become known as "false endorsement" claims at the federal level. Many states also protect publicity rights. The most important states to be aware of are probably New York and California, for obvious reasons, though an argument could be made to include Tennessee on that list. California for example, has specific legislation dealing with voice-stealing. A celebrity can even bequeath their voice to heirs through a will, thanks to statutes in some jurisdictions. If you don't feel like reading for yourself, listen to this quick podcast instead.
If you're looking for more info on publicity rights, there's an interesting (but not recently updated) wiki database of cases and literature on personality rights brought to you by the folks at the University of Edinburgh's School of Law. Here's another site focussing on U.S. law.
If you want, we can talk about some of the famous cases about famous people, such as Bette Midler, Tom Waits and, more recently, J Lo. My favourite is Tom Waits. Check out this NYT article about his consistent copyright problems. One example of these sorts of cases concerns a dispute over sound-alikes in the popular Guitar Hero video game.
We can compare the situation in Canada, which is quite different. We can do that by talking about Glen Gould and, of course, moral rights. Looking at Canada involves not only a combination of privacy/personality rights like those discussed in the Gould case, but also examining some (unconstitutional) trade-marks law, and a link back to the discussion on moral rights.