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Lecture 3.3.2: The Subject Matter of Copyright: Music Part Two

Music Part Two

In 1996 and 1998, the record companies succeeded in obtaining from Congress a partial modification of this long standing rule specifically by securing an amendment to the copyright statute that gave them public performance rights for their sound recordings. However, that amendment was limited to performances that occurred in the form of a digital audio transmission. The upshot is that today when webcasters perform recorded music digitally over the Internet, they must pay license fees to the record companies. How those license fees are calculated we'll discuss in lecture number eight. For the time being, you need to know only that this legal relationship is managed by yet another intermediary, the organization SoundExchange.

Record companies have not been satisfied by this adjustment of the statute. They want a full-blown public performance rights, which would enable them to charge traditional radio stations, large restaurants, and so forth who make use of their recordings. Congressmen sympathetic to their position periodically introduce bills that, if adopted, would have that effect. The name of the most recent version of this proposed legislation is the Performance Rights Act. Shown on your screen is the press release by the trade association of the recording companies welcoming the introduction of this legislation. Notice the reference to the difference between the situation in United States and the situation in most countries.

The broadcasters, for their part, continue to push back. Set forth on screen is their own summary of their stance. Notice that they continue to emphasize the quote "free promotion" that they're providing record companies and notice also their strategic characterization of the proposed legislation as a tax. Finally, you'll see that they too have a group of sympathetic Congressmen.

For better or worse, this is a reasonably good illustration of the way in which lobbying over copyright typically works. For more details concerning the still ongoing negotiation over this particular issue, follow the link shown on the left hand side of these two slides. So that, in brief, is the pattern of legal rights in the US recorded music industry. The arrows, as I've indicated, show transfers of legal entitlements. For the most part, money flows between organizations through the channels cut by the legal rights with one exception.

For a long time, record companies have paid radio stations significant amounts of money, known informally as payola, to induce them to play the record company's recordings over the airwaves, lending credence to the broadcasters' contention that radio play serves as an effective form of advertising. At its peak, roughly $100 million a year flowed through this channel. Legal impediments to such payments have been slowly increasing for decades and enforcement of those legal impediments has also been increasing. For awhile, record companies evaded these tightening rules by using third party intermediaries, known confusingly as indies, to make their payments, but this loophole is also shrinking. Today much less money is flowing through this channel than was true 40 or even 10 years ago, but the river has not dried up completely.

One final dimension of this legal and financial system merits emphasis. I mentioned earlier that the most important of the licenses issued by the music publisher is the so-called mechanical license that it grants to the record company. Suppose, to return to our story, that the first commercial recording of my song proved so popular that a second musician affiliated with a different record company wants to do a cover of the song-- meaning, a new rendition of it. Does the second record company have to obtain a separate mechanical license from the publisher? The answer is, you might suppose, is yes. However, the second record company is not obliged to negotiate a voluntary license with the music publisher. Rather, so long as the second record company pays a modest fee, which is set by the government, it's free to make and distribute a new recording and neither I nor the music publisher can object. Currently, that fee is about nine cents per copy sold of the new recording, more if it's a long song. Separate fees apply to ringtones and recordings delivered to customers through interactive streaming.

This is the first example we've seen in this series of lectures of a so-called quote "compulsory license." We'll see several more in future lectures. Not surprisingly, the central feature of a compulsory license is that the copyright owner is compelled to issue it. It has no choice but to accept the governmentally set fee. Typically, that fee is lower than the amount the owner would demand if the license were voluntary. Equally important, a compulsory license deprives the copyright owner of creative control. Suppose, for example, that I or the music publisher acting on my behalf don't like the second sound recording artist and think he will butcher my song. As a result, I'd prefer not to grant him a license of any sort. Nevertheless, neither I nor the publisher can refuse. To be sure, the statutory provision that creates this rule contains a few limitations, one of which is that the second recording artist may not quote "change the basic morality or fundamental character of the work," close quote. But that restriction is construed very leniently.

Here's an example that illustrates the application of this rule and its cultural impact. In 1967, Jimi Hendrix composed the song Little Wing. He and his group The Jimi Hendrix Experience recorded the song on their 1967 album Axis Bold As Love. In terms of our diagram, Hendrix occupied both of the blue zones because he was both the composer and the performer of the song. This is reasonably common in rock music. Compositions that fit this pattern are known as controlled compositions. The contracts typically used to handle them differ modestly from the contracts we've discussed thus far, but not in ways that merit our attention right now. I'm going to play the famous opening segment of Hendrix's composition. So listen carefully.

[MUSIC - THE JIMI HENDRIX EXPERIENCE, "LITTLE WING"] This song has inspired generations of musicians. A few of the many commercially distributed covers are shown on the slide on your screen. Some of these covers could fairly be described as faithful adaptations that preserved the essential character of Hendrix's original. An example might be the version by Santana and Joe Cocker. Here it is:

[MUSIC - SANTANA AND JOE COCKER, "LITTLE WING"] Hendrix himself might also have been pleased by the extraordinary instrumental recording of the song by Stevie Ray Vaughan, one of the few guitarists better than Hendrix himself. So if you don't know the recording, pay close attention, because this is one of the best guitar solos of all time.

[MUSIC - STEVIE RAY VAUGHAN, "LITTLE WING"] Not all covers come as close to Hendrix's original vision. Some would likely have set his teeth on edge. Examples include Laurence Juber's acoustic rendition, which is technically very impressive but suburban or New Age in mood, or The Corrs' pop rendition. Here's a slice of the latter:

[MUSIC - THE CORRS, "LITTLE WING'] I hope you'll recall from the last lecture our discussion of the powerful bond that many artists feel with their creations. That bond, you'll remember, prompted the sculptor Michael Snow to object when ribbons were hung on the necks of his geese and underlay Gary Larson's plea to his fans not to use his cartoons in their websites. The law, as we saw, often comes to the aid of such artists, particularly in countries that recognize strong versions of moral rights. By contrast, the law, and consequently the culture, of the music industry is radically different. Composers know that once they have authorized the commercial distribution of one recording of their composition, they can no longer enjoy what, in moral rights terms, is referred to as a right of integrity. In other words, they can't prevent other musicians from altering their creations by making and distributing covers, some of which will be very different from the versions the composers had in mind. Nor may the first recording artist object when a second recording artist makes a cover.

Interestingly, neither composers nor performers seem especially troubled by this prospect, and the legal privilege of making covers has an important cultural benefit. Each generation of musicians can test their skills, can show their chops, by attempting their own recorded renditions of the classic works of their predecessors. Now to be sure, they have to pay a modest fee when they sell recordings of their adaptations but they don't have to ask permission. Does this seemingly fundamental difference between music on the one hand and other fields of art reflect differences in the nature of the cultural products in question-- for example, the fact that most cultures are unique whereas sound recordings can be replicated indefinitely?

Alternatively, have the feelings and expectations of composers and musicians evolved in response to the relatively unprotective rules that govern, at least, in the US music industry? These are hard questions and I don't know the answers. The answers matter. For example, if the first explanation is right we should probably reexamine the contention of the directors of black and white classic movies, that they should be able to block colorization of their masterpieces-- a contention that some countries, not including the United States, currently respect. By contrast, if the second explanation is right, we may need to reconsider just how deep are the psychic bonds celebrated by the personality theory of copyright.


  • Copyright 2014 William Fisher. This video is licensed under the Creative Commons Attribution-Noncommercial-Sharealike 2.5 License (CC-BY-NC-SA). This lecture from Harvard University has been streamed into the FLAX language system from the third party video service provider, YouTube. The following licensing information for the lecture has been duplicated here in this source information area of the CopyrightX FLAX collection:
  • The portions of the CopyrightX lectures consisting of original material are licensed under the Creative Commons Attribution 4.0 License. The lectures also contain excerpts of non-original material, some of which are subject to copyrights held by other parties. The use of those excerpts in CopyrightX is privileged under the fair use doctrine. However, Prof. Fisher and Harvard University lack authority to license others to use the excerpts. Thus, persons who reuse a CopyrightX lecture must either remove the pertinent excerpts or ensure that they too enjoy legal authority to reproduce or perform them.
  • William Fisher, CopyrightX: Lecture 3.3, The Subject Matter of Copyright: Music. (2014). Retrieved from
  • Please note that the CopyrightX lecture videos contain detailed visual material that is essential for full comprehension. In order to view the visual content in a larger format while reading the transcripts, and for further guidance on downloading the CopyrightX lectures for offline use and for slower internet connections, please direct your browser to
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