THE DENIAL OF A GENERAL PERFORMANCE RIGHT IN SOUND RECORDINGS: A POLICY THAT FACILITATES OUR DEMOCRATIC CIVIL SOCIETY?
2007; The MIT Press; Volume: 21; Issue: 1 Linguagem: Inglês
ISSN
0897-3393
Autores Tópico(s)Intellectual Property Law
ResumoTABLE OF CONTENTS I. INTRODUCTION II. COPYRIGHT FRAMEWORK A. Performance Royalties B. Statistical Analysis of the Rise of the Performer-Songwriter III. EMERGING BUSINESS STRUCTURES A. Equitable Distribution by Performance Rights Societies B. Industry Expansion C. Dominance of the Musical Recording over Sheet Music D. Spread of the Performer-Songwriter Movement: Fringe Genres E. Spread of the Performer-Songwriter Movement: Mainstream Popular Culture IV. CULTURAL IMPACT A. Increase in the Number of Songwriters B. Differences in Composition Processes C. Politically and Socially Forward-Leaning Content: Historical Analysis D. Politically and Socially Forward-Leaning Content: Empirical Analysis V. LEGISLATIVE IMPLICATIONS A. Efficiency and Fairness B. Copyright as a Means to Facilitate Democratic Civil Society C. The Limited Digital Audio Transmission Right VI. CONCLUSION I. INTRODUCTION John Coltrane's recording of the song My Favorite Things (1) is an example of his striking ingenuity. On the recording, Coltrane performs a fourteen-minute overhaul ... of the saccharine show tune originally from The Sound of Music. (2) Some commentators have claimed that jazz musicians would not play My Favorite Things today, had Coltrane not established its surprising potential. (3) Despite Coltrane's transformative contributions, the Copyright Act does not grant him, as the performer, the right to exclude others from publicly performing his rendition. (4) Coltrane is not entitled to receive royalties when his recording is played on the radio, on television, or in a public setting such as a restaurant or hotel. (5) Rather, the Copyright Act grants the composers of My Favorite Things, Richard Rodgers and Oscar Hammerstein, the exclusive right to authorize the analog public performance of the song. (6) For more than three-quarters of a century, the inability of musical performers to profit from the public performance of their recordings has inspired heated controversy. (7) Legal scholars have traditionally cast this controversy as David versus Goliath, with musicians struggling to get their due from the broadcast monoliths. (8) Nearly all of the articles published on the subject bemoan the plight of the musical performer. (9) Members of Congress have also joined the fray, proposing at least thirty ultimately unsuccessful bills, which sought to extend to musical performers a general performance right in sound recordings. (10) But performers can claim the royalties granted to composers simply by writing their own songs. Congress and legal scholars have failed to recognize that performers hold the power to overcome their inferior status under the Copyright Act by reinventing themselves as performer-songwriters. Indeed, many performers already have. For the most popular hits on Billboard's year-end singles charts, the percentage of songs written or co-written by their performers has steadily increased: 7% in 1950; 22% in 1960; 50% in 1970; 60% in 1980; 64% in 1990; 68% in 2000; and 88% in 2004. (11) The increase in musicians who perform their own compositions was spurred by changes that occurred in the music industry around the end of World War II. In the 1940s, a combination of market and technological developments enabled a broad swath of performers to reap royalties on their own compositions. These changes included shifts in the ways composition royalties were distributed, the expansion of the music industry, and a rise in the financial importance of the recording. (12) The performer-songwriter movement took root in a cross-section of influential musicians, including Buddy Holly, Dizzy Gillespie, and Charlie Parker. Following their cue, artists such as The Beatles began to compose their own material. (13) The performer-songwriter movement was originally driven by artists' desire to obtain performance royalties on their songs' underlying compositions and to avoid paying reproduction royalties on their albums, however, it has since cascaded into a mainstream cultural norm. …
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