School of Rock

I had a unique experience last Friday, teaching some copyright law basics to music students at a local high school. The instructor invited me to present to the class in part because he wanted a better understanding of his own potential liability for arranging song for performances, and in part because he suspected his students were, by and large, frequently downloading music and movies without the permission of copyright owners, and he thought they should understand the legal implications of that behavior. The students were far more interested in the inconsistencies they perceived in the current copyright system. I'll discuss a few of those after the break.

First, the Copyright Act grants the exclusive right to publicly perform a musical work, or authorize such a performance, to the author of the work, but there is no right public performance right granted to the author or owner of a sound recording. See 17 U.S.C. § 114. In other words, Rod Temperton, the author of the song "Thriller," has the right to collect money paid to secure permission to publicly perform the song, but neither Michael Jackson's estate nor Epic Records holds any such right, although it's hard to discount the creative choices of Michael Jackson, Quincy Jones and their collaborators in making much of what the public values about that recording. To those who had tried their hands at writing songs, however, the disparity made a lot of sense because "Thriller" should be Temperton's song because of his creative labors.

Second, the Copyright Act makes specific allowance for what I call "faithful" cover tunes, but not beat sampling or mashups. If a song (the musical work) has been commercially released, another artist can make a cover of the song and sell recordings of it without securing the permission of the copyright owner, so long as the cover artist provides notice, pays a compulsory license (currenty $0.091 per physical or digital recording) and doesn't change the song too much. See 17 U.S.C. § 115. If the cover artist makes a change in "the basic melody or fundamental character of the work," then the compulsory license in unavailable, and the cover artist must get permission and pay what the copyright owner asks. In addition, the compulsory license does not cover the sound recording, so there is no compulsory license for a "sampling right." Thus, Van Halen can make a cover of "Oh, Pretty Woman," without Roy Orbison's permission, but Two Live Crew cannot (unless the rap version ends up qualifying for the fair use privilege).  

It was also interesting to me that at least one student in each class was of the opinion that once the owner of a copyrighted work put the work on the Internet, the owner was ceding control of the work, and should expect people to download it for free. It's an observation consistent with my own analysis about why copyright owners should have a strong, if not absolute, right to decide if and when to release a work online. 

On a personal level, I confirmed a suspicion about my own teaching: if I try to teach the same subject six different times on the same day, it is guaranteed to come out six different ways, and indeed, it is likely there will be significant differences in what I cover in each class. This is in part because I have way more material at my fingertips than I can cram into any 45 minute class, and so I can be somewhat flexible about what I present, and in what order. I like that, because it allows me to teach in a manner more responsive to student questions. On the other hand, it may expose a failure to determine what are the 20-30 minutes of critical material I need to cover in an introduction to copyright law.