The Evolving Music Ecosystem Conference: Day Two Recap

On September 9-11, 2020, the Center for the Protection of Intellectual Property (CPIP) hosted The Evolving Music Ecosystem conference online from George Mason University Antonin Scalia Law School in Arlington, Virginia. The conference featured a keynote address by singer, songwriter, and author Rosanne Cash.

This unique conference continued a dialogue on the music ecosystem begun by CPIP Executive Director Sean O’Connor while at the University of Washington School of Law in Seattle. In its inaugural year in the D.C. area, the conference aimed to bring together musicians, music fans, lawyers, artist advocates, business leaders, government policymakers, and anyone interested in supporting thriving music ecosystems in the U.S. and beyond.

SESSION 3: WHAT IS THE SCOPE OF A MUSICAL COMPOSITION?

Music copyright is unusual in that it can consist of two separate kinds of registered works. Musical compositions are the underlying song, most easily thought of in terms of notated sheet music. Sound recordings are particular performances captured in a recording. This panel focused on current hot topics in the composition rights. Panelists considered: how to determine the scope of composition for composers not fluent in written notation (including social justice aspects); whether and how juries should be used in assessing substantial similarity between works; new distribution and licensing models; whether it makes sense to distinguish compositions from sound recordings in today’s beats-forward studio-based composition approach for pop music; and AI compositions.

The panel included Prof. Robert Brauneis from the George Washington University Law School, Richard S. Busch of King & Ballow, Robert Clarida of Reitler Kailas & Rosenblatt, and Prof. Joseph Fishman from Vanderbilt University. The panel was moderated by CPIP Executive Director Sean O’Connor.

Robert Brauneis started the panel by clarifying that unlike the modern U.S. copyright landscape, the Copyright Act of 1909 required artists to deposit their compositions with the U.S. Copyright Office in the form of music notation to receive federal protection. If the artist submitted only a “lead sheet” with the lyrics and melody, the federal copyright protection was limited to what was in the lead sheet. However, after the passing the 1976 update to the U.S. Copyright Act, artists could deposit sound recordings instead of lead sheets, thereby providing protection for any musical elements in the entire recording. Prof. Brauneis then noted that the courts have regularly identified that the 1976 Copyright Act is retroactive. This means that artists with sound recordings made before 1972 could deposit their sound recordings and receive broad federal copyright protections in their work. This had a big implication because it allowed portions of a sound recording that may not have been notated in a lead sheet to receive copyright protection. This offered artists a broader set of rights in their music, which he argues is much more representative of how we perceive music rather than by the limited notations of lead sheets.

Richard Busch then used Prof. Brauneis’ presentation on the implications of offering copyright protections to sound recording instead of limited lead sheets to transition into a conversation about the notorious Williams v. Gaye lawsuit. Also known as the “Blurred Lines” case, it concerned whether Pharrell Williams and Robin Thicke’s “Blurred Lines” infringed the classic Marvin Gaye song, “Got To Give It Up.” The Blurred Lines case, which Mr. Busch litigated on behalf of the Gaye estate, furthered copyright jurisprudence by cementing that some combination of musical elements—even a unique combination of uncopyrightable elements—can maintain an infringement action. And to provide clarity and closure for those in the audience who did not follow the case, Mr. Busch explained how a similarly placed parlando present in both songs may have brought about the victory for the Gaye estate.

Robert Clarida then returned the conversation to the implication of allowing a sound recording to be deposited with the U.S. Copyright Office. Mr. Clarida noted that lead sheet deposit copies generally leave out many of the characteristic elements of songs, such as the guitar solo in “Hotel California” by the Eagles. To emphasize the importance of allowing copyright protection to exceed the lead sheet, Mr. Clarida highlighted how the strict observation of a lead sheet affected the Skidmore v. Led Zeppelin lawsuit. There, Led Zeppelin was sued for copyright infringement due to a piece that allegedly had similar elements to their megahit “Stairway to Heaven.” However, since Led Zeppelin had only deposited a lead sheet instead of the sound recording, the court remained ignorant about the true aspects of the song embodied in the sound recording. Consequently, the court did not consider the “undeposited authorship,” as Mr. Clarida put it, which could have resulted in an entirely different ruling.

Prof. Joseph Fishman turned the panel towards defining the scope of actionable similarity in copyright infringement cases. He recognized that this was a particularly interesting issue in the Blurred Lines case because it did not concern the top-line melody. Prof. Fishman explained that the earliest infringement lawsuits focused almost exclusively on whether there was a misappropriation of the top-line melody. However, there has been a modern trend of expanding protection to any combination of identifiable musical elements, as evinced by the Blurred Lines court. Prof. Fishman then went on to note that this modern shift in copyright jurisprudence increases the cost and complexity of litigating infringement cases because now they require expert testimony and jury verdicts.

KEYNOTE LUNCH / FIRESIDE CHAT

Singer, songwriter, Grammy winner, and best-selling author Rosanne Cash gave the keynote fireside chat from her home in New York. Ms. Cash is a devout artist advocate and a friend of CPIP, and she has testified to the U.S. House of Representatives on behalf of artists. She is also a major proponent of the Artist Rights Alliance organization.

Prof. Aistars opened the conversation by asking Ms. Cash about her personal music ecosystem. “I don’t ever think about it being all about me,” she responded. Ms. Cash believes the music ecosystem is about “provid[ing] work for each other” and that it relies on flight attendants, audio engineers, bus drivers, background vocalists, and all other tangential participants to function. She finds that everyone in the music ecosystem is family because they all speak the same language and inspire one another. As for her personal music ecosystem, Ms. Cash expressed her gratitude for all of her support—from road crews to studio assistants—and for the devotion of her fan base. However, her music ecosystem’s nucleus centers around her “in-house” producer, co-writer, sound engineer, and husband, John Leventhal.

Highlighting the expanse of Ms. Cash’s definition of what the music ecosystem includes, Prof. Aistars then queried Ms. Cash about what she thinks is the most important element for building a thriving creative community. Ms. Cash emphasized that “support for the arts is key.” She expressed her frustration with how quickly public schools have cut funding for the arts, thus demolishing the foundational support system of creative young students. Ms. Cash’s concern is that while schools are willing to provide support for students who are inclined to pursue math and science, there is a lack of educational support and nourishment for those with creative dispositions. This disparity contributes to a discounting of the arts in the public’s mind and stifles innovation in the American arts.

Ms. Cash also noted that a thriving creative community cannot survive if that community does not support its venues for showcasing the arts as well as those who create it. As small music venues continue to close due to COVID-19’s effective moratorium on in-person live music, Ms. Cash believes the creative communities that rely on those venues will disappear with them. She then stressed the importance of the Artist Rights Alliance and other nonprofit artists’ organizations that provide financial support and health care to artists. She also said that federal and state funding is crucial if artists are to survive this global pandemic. Ms. Cash brought attention to France’s recent budget allocation of $2 billion for supporting artists during the pandemic. She is disappointed that while U.S. legislators have supported other service industries, they are unwilling to put the same level of support towards protecting those who enrich and drive our American culture. As Ms. Cash put it, “We are in the service industry–we serve the heart and soul.”

Prof. Aistars then transitioned the conversation to the lighter subject of Ms. Cash’s creative process—specifically, as a songwriter and best-selling author, if her process varies depending on whether she’s writing prose or lyrics. Ms. Cash prefers to create lyrics in the comfort of her kitchen, which is supplied with a guitar, microphone, and digital audio workstation. Also, she finds that regular breaks are necessary for her creative process when writing songs. Ms. Cash notices that many times, after she’s taken a break to go to the store or run an errand, the song has found a way of finishing itself when she picks the guitar back up.

In contrast to the loose framework of Ms. Cash’s songwriting, she admitted that when writing prose, she appreciates having a word count, a defined topic, and a due date. She believes that song structure is like a house with blueprints: the rhyme scheme and each verse are built together in an existing structure. However, when writing prose, the piece’s blueprint is not as apparent, so she finds it easier to get lost. Consequently, Ms. Cash finds subtle comfort in the certainty of having defined parameters to guide her construction of the prose.

Prof. Aistars then recounted when Ms. Cash testified in front of the House Judiciary Committee on behalf of artists in 2014, which reference gave way to a discussion on Ms. Cash’s further artist advocacy work with the Artist Rights Alliance (ARA). The ARA seeks to achieve fair treatment and compensation for working musicians, performers, and songwriters online through advocacy work and by promoting its “Artists’ Bill of Rights.” Ms. Cash, who sits on the organization’s board, feels passionately about getting the voice of the ordinary musician heard. Although, she readily admits that she is “planting a garden I will never see bloom.” Ms. Cash discussed how she is particularly passionate about having the Artist Rights Alliance help artists receive attribution for their work, prevent politicians and other groups from using an artist’s work to promote their ideologies, and achieve just compensation.

In line with Ms. Cash’s conversation about politics, Prof. Aistars then asked her about how important the First Amendment is to her. Ms. Cash said that as a person who is loudly anti-gun violence and a regular public commentator on politics, she thinks the First Amendment is a crucial part of being an American. Ironically, she mentioned how many people expect musicians to not be involved in political discourse and instead “shut up and sing.” And while pointing out that this request is “anatomically impossible,” Ms. Cash emphasized—referring to a statement by American musician Tom Morello—that she “did not set down my First Amendment rights when I picked up my guitar.” She believes art is supposed to make the audience uncomfortable and arouse feelings, so artists should be encouraged to voice opinions that challenge the political beliefs of others.

Finally, Prof. Aistars concluded the keynote by asking about how Ms. Cash has been affected by the COVID-19 crisis and what others can do to help artists during these difficult times. Ms. Cash reflected on how interesting it is that COVID-19 shutdowns have made her “miss what I wanted to lose.” She discussed how before the pandemic she regularly missed home while touring because the road can be quite taxing. Also, her first true love is songwriting, which she finds difficult to do on tour. However, her long absence from touring due to the global pandemic has made her realize how much she misses connecting with her fans, working with the tour crew, and performing.

Ms. Cash encouraged everyone listening to the fireside chat to not take the message of this conference lightly. She stressed that music communities and ecosystems around the nation and the world are hurting, but there are certainly things people can do about it. She encourages people to donate to organizations that support independent artists directly, such as MusiCares and the Artist Rights Alliance. Also, to support music communities themselves, people need to donate to independent creative venues so that artists have a place to feature their work once people can return to public spaces and concerts. Finally, and most importantly—buy music! Ms. Cash says that if we are going to build a sustainable music industry for everyone, people need to move away from the free tiers of streaming platforms.

Ms. Cash ended the fireside chat with humbling words of appreciation for everyone involved in The Music Evolving Ecosystem conference and by showing a music video of her song “We’re All in This Together.” John Paul White and Ms. Cash wrote this song and made this video during the pandemic shutdowns, and all proceeds from the video go to the Music Health Alliance to help artists receive health care.

SESSION 4: THE NEW ROLE OF RECORD LABELS & PLATFORMS

From MP3s to YouTube to Spotify, the way we listen to music in the digital age has changed considerably over the past twenty years. At a time when physical copy records and full-length albums have been replaced by the streaming single, what role does a record label play? And as traditional lines between creator, copyright owner, and distributor continue to blur, how will labels and streaming services work together to ensure that artists are appropriately compensated and incentivized? This panel, moderated by Prof. Loren Mulraine of Belmont University College of Law, explored recent developments in copyright law as they apply to the music industry and looked ahead to how music ecosystems will evolve in the coming years.

Mitch Glazier of the Recording Industry Association of America (RIAA) began the panel by highlighting that while the COVID-19 crisis has created a sudden shift in the performance and monetization of music, this is not the first time record labels have met the challenges of a seemingly overnight evolution of the music industry. Mr. Glazier explained that over the last twenty years there have been five major inflection points marking evolutionary bursts of the music industry. It began with a Supreme Court victory in MGM Studios v. Grokster that brought certainty to the prospect of legal recourse for rights owners in the lawless landscape of peer-to-peer music piracy of the early 2000s. This was followed by Apple’s iTunes, the first secure, consumer-friendly online music distribution platform. Then, as the 4G internet revolution made mobile music streaming feasible, record labels introduced an entirely new catalog licensing dynamic when they brought Spotify to the United States. Finally, Mr. Glazier identified that the music industry is in the midst of establishing its most recent inflection point, which involves social media. To achieve this inflection point, record labels will need to create a licensing regime with social media platforms that is beneficial to technology companies and profitable for artists.

Mark Baker from Warner Music Group (WMG) then discussed how modern record labels are evolving to fit the contours of this rapidly expanding music landscape. Baker identified that record labels have always amplified the creativity of artists by providing the marketing, licensing, and career development expertise of their staff. And while modern artists have unprecedented access to online distribution and licensing opportunities, putting together a comparable artist development team piecemeal to service an artist’s career is no easy feat. Mr. Baker finds that traditional full-service record label agreements remain essential for many artists, but the needs for other artists have evolved with music technologies. WMG recognized this a number of years ago, which caused the label to create the a la carte artist service company, Alternative Distribution Alliance (ADA). Unlike a full-service record agreement, ADA allows independent record labels and artists to select individual creative services to leverage WMG’s global infrastructure. Mr. Baker suggested that ADA’s a la carte model shows WMG’s commitment to keeping pace with music technology.

Garrett Levin of Digital Media Association (DiMA) then expanded the scope of the conversation from how labels are evolving to digital technology to how artists’ careers can shift to utilize the power of streaming technology. Mr. Levin explained that while record income has dropped dramatically since the late 1990s, streaming revenue and subscriber numbers have been increasing at a promising rate. In addition to the prospect of increased record income, artists receive a multitude of other benefits when they embrace streaming technologies. Specifically, artists have more access to fans and granular consumption behavior data that will change how artists create and operate their business. Mr. Levin went on to suggest that artist-to-fan relations will become closer than ever through this technology’s ability to create custom music programming and connect with fans through their mobile devices.

In contrast to Mr. Levin’s unbridled enthusiasm for digital technologies, Prof. Larry Miller from NYU Steinhardt painted a more cautious picture of streaming. Prof. Miller highlighted that streaming technology’s ability to give consumers access to millions of artists only makes it more difficult to rise above the noise. He insisted that theoretical discoverability in a vast pool of artists is not the same as practical discoverability that will allow artists to create sustainable music careers. Additionally, Prof. Miller suggested that the low royalty rates of streaming have converted music into a consumption business plagued by sales plateaus. These sales plateaus occur because low revenue rates, coupled with the physical consumption limitations of fans, require artists simultaneously to pursue a variety of revenue sources, such as streaming, merchandise, and vinyl. Prof. Miller notes that this is where the expertise, infrastructure, and connections of record labels provide the most value to artists. Finally, he emphasized the importance for music industry participants and students to have a basic understanding of data science to survive in our data-driven music industry.

Written by Bradfield Biggers, a graduate of Boston College Law School and Founder & CEO of Timshel Inc., a music fintech company that provides data-driven cashflow solutions to musical artists in Los Angeles, California. This is the second of three posts summarizing the three-day The Evolving Music Ecosystem conference that was held online from George Mason University Antonin Scalia Law School on September 9-11, 2020.

Reposted with permission from the author. Originally published on the Center for the Protection of Intellectual Property Blog.

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