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With special thanks to Hyuk-Joon Chung, Michael Czolacz, and Ashwin Krishnan, with whom I researched this topic for a presentation we gave in Professor Clint Francis’s Intellectual Property course during the Fall Semester of 2011.

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Constitution vs. Statute

U.S. copyright law begins with our Constitution, which grants Congress the power to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”  For readers unfamiliar with the Copyright & Patent Clause, the archaic language can be a bit tricky.  “Science,” as it is used, is not limited to hard scientific fields as we currently understand them, but includes other sources of knowledge, such as literature, philosophy, and (ultimately) music.  The “useful Arts” do not refer to works of aesthetic artistry, but rather works of artisanal craft.

Copyright law springs from the rights of “Authors” with respect to their “Writings.”  (While patent law derives from the constitutional concern for the rights of “Inventors” with respect to their “Discoveries.)  Musical compositions have long been copyright protected, and since January 1, 1978 (the implementation of the 1976 Copyright Act) sound recordings have received copyright protection as well.  So – as to music – copyright’s constitutional purpose is to promote the progress of music by securing for limited times to music’s “Authors” the exclusive right to their music.  Right?

What is your concept of a Music Author?  Perhaps it’s a composer like Bach or Scott Joplin.  Or a songwriter the likes of Cole Porter or Joni Mitchell.  Or a whole band like The Beatles, or Parliament.  Or just bandleaders such as Duke Ellington or Brian Wilson.  Should sheer lyricists be considered music authors?  Probably to some degree.  Should pop stars count?  Certainly some of them.  Now what about producers?  It’s well-known that Phil Spector and Missy Elliott are creative forces in the studio.  But others are less hands-on.  What about a major record label like Universal Music Group, or a massive music publishing enterprise like Sony/ATV?

I’m not so sure about those last two.

But those corporate players are the dominating voices in music copyright litigation and policy-making.  Admittedly, they own the copyrights that originally belonged to all the actual authors of music from Mozart to Missy Elliott (well, Mozart’s too old, but you get my point).  The record labels bargained for the rights to sound recordings.  The music publishers bargained for the rights to music compositions.  I still find it troubling, though.  Copyright is supposed to promote progress by granting rights to authors of creative works, not owners of creative works.  Our Copyright Act contradicts our Constitution.

Section 106 of the Copyright Act spells out all the rights that comprise copyright.  But it does not give these rights to the Authors referenced in the Constitution.  Instead, it hands over copyright to owners.

To be fair, the Act vests ownership of creative works first and automatically in authors.  This means that as soon as Keith Richards scribbles down the tablature for his next guitar riff or records it on his hand-held mini-cassette player – he, the author, owns the copyright to that piece of music.  Nonetheless, focusing copyright on the rights of owners strikes a very different chord than focusing copyright on the rights of authors.

The emphasis on ownership in the Copyright Act is one manifestation of our regime’s decision to make copyright a list of economic rights akin to those attached to real property.  Economic rights are certainly a powerful incentive for authors, perhaps their most powerful incentive to create.  But it is not the only possible incentive.

The rest of this article will focus on one other incentive that could motivate authors to create.  It is a central moral right recognized by many other nations: the right to attribution.

The Attribution Right: A Sliver in a Bundle

The right of attribution is the right to claim authorship in an artistic work created by you, or to disclaim authorship in a work not created by you. It is the right to be honestly credited.  It is not transferable.  Notice that attribution is a right directed at artists, not owners, and it is not couched in property rights or economic terms.

Interestingly, since the Visual Artists Rights Act of 1990 (VARA), an attribution right has been recognized for authors of fine visual arts – limited edition paintings, sculptures, and gallery-ready photographs.  Attribution, alongside the other moral rights given by VARA, is not statutorily guaranteed for any copyright subject matter other than the fine visual arts, however.

Also, as many commentators have pointed out, the U.S. has signed treaties that clearly require compliance with moral rights standards for authors of creative works.  The Berne Convention requires all signatories to grant attribution and other moral rights to authors separately from their economic rights.  And the WIPO Performances & Phonographs Treaty requires that musicians be credited for their performances captured on sound recordings.  The U.S. has remained stubbornly non-compliant with the requirements of these treaties.

Who Wants Credit?

Session Players – In the world of recorded music, there is plenty of anecdotal evidence that session musicians would appreciate being credited for their performances.  Clyde Stubblefield was a drummer for James Brown’s band in its heyday.  His beats are some of the most sampled drum tracks ever.  He has said, “I just want my name on it, saying that’s Clyde playing.  The money is not the important thing.”  Clyde points to a psychic benefit of attribution.  The reputation we develop for the work we do proves to the world the nature of our human capital, and gives us a sense of pride.  For session players, credit where due, would go a long way toward securing that sense of pride.  It would also help foster a reputation for session players that could lead to economic returns.

Principled Samplees – Some sampled artists argue that credit is deserved on principle, and that attribution would lead to heightened ethics in the music industry.  Where work goes unattributed, it not only harms the economy by creating consumer dead-ends, it injures and degrades the work that is presented, whose origins are hidden

Consumers – Attribution would make it easier for consumers to identify the sources of their favorite musicians’ music – be it the horn section, the sampled musicians, or the non-performing songwriter.

The Music Retail Industry – For both brick and mortar and digital retailers, attribution removes some friction from the marketplace because it allows for more efficient consumer navigation.  This is hypothetically a boon to sellers.

Who Doesn’t Want to Give Credit?

Underground Samplers – Some artists may rely on the underground status of their music to avoid licensing fees. If forced to give credit, they would expose their art as unlicensed, subjecting themselves to  bills they can’t afford. It is important to remember that courts have found copyright infringement in the unlicensed use of a sample only two seconds long.

Jazz Ensembles – Being required to identify the composition that kickstarts a jam may undermine the enterprise of improvisation and the uniqueness of spontaneous riffs. This, it could be argued, actually limits jazz musicians‘ opportunity to distinguish themselves.  At the same time, attribution is not really an issue in the live improvisation setting.  As for recordings, jazz musicians could attribute both the underlying composer and themselves.  Still, it is easy to see that requiring attribution could burden a culture whose decades old custom is to trade songs around fairly freely.

The Record Industry –One traditional record company business model relies on marketing the singular brilliance of pop stars. Thus, requiring adherence to a strict attribution doctrine, by placing music in a context of musical heritage, arguably undermines that model.

The Upside of Attribution: Gains at a Minimal Cost

The concerns in opposition to attribution are valid and reasonable.  However, I think they are mostly rooted in a fear of copyright law.  The fear of underground samplers could be assuaged if the courts or Congress recognized de minimis, fair use, or other exceptions for sample-based songs that truly transform prior works.  An exception to attribution could be made for live jazz performances.  And the record industry has been exploring alternative models to selling music for some time now.  There is no reason to think that relying on the myth of the singular genius of pop stars is the best way to push records.

I understand that attribution adds another hoop to jump through, and veers away from the economic rights traditionally emphasized by U.S. Copyright Law.  However, unlike other moral rights, a right to attribution costs next to nothing and does not actually interfere with the progress of creativity.  The most obvious benefit of granting an attribution right to the originating musicians of sound recordings and compositions is that it pushes us in the direction of transparency, knowledge, and robust data.

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Thanks for reading.  JTIP welcomes comments, criticisms, and many other reactions to this or any other article found on JTIP-ster.

Nick Fuller
nfuller@nlaw.northwestern.edu
Northwestern University School of Law
Journal of Technology & Intellectual Property
Supervising Online Editor
JD Candidate, 2013

Sources:

  • The United States Constitution, Article 1, § 8, Clause 8
  • The Copyright Act of 1976, §§ 106 & 106A
  • The Berne Convention, Article 6bis
  • WIPO Performances & Phonographs Treaty, Article 5(1)
  • Kembrew McLeod & Peter DiCola, Creative License: The Law & Culture of Digital Sampling (Duke University Press, 2011)
  • Bridgeport Music, Inc. v. Dimension Films, 6th Cir. 2005