According to Billboard, Luke Combs’ “Fast Car” was the eighth biggest song of 2023. Needless to say, the success of the song has likely made a lot of people happy. It’s likely made Luke Combs happy. It’s likely made his label happy. It’s also likely made the millions of listeners happy. But the song’s success has also made another person very happy: Tracy Chapman.
This is a great piece, as someone in the indie electronic music industry who also DJs. I never thought I'd see a Francis Grasso shout out in Slow Boring, what a pleasant surprise!
> When you consider the search and transaction costs of licensing a sound recording, copyright holders likely aren’t making as much money as they could be.
If this is correct, why don't copyright holders sign up to an arrangement like the compulsory one proposed? "Sample any of my tracks for X% of the revenue from the song"?
Good question. It’s usually not that simple because two different entities own the composition copyright and the recording copyright. So you’d have to have those two entities agree. If you own both you can theoretically do. We’ve seen some people try a similar thing with AI. The electronic artist Grimes told people they could use AI to imitate her voice for some percentage split of royalties.
I was hoping to see "and so we can learn from the music industry that the best way to solve the copyright problem for training gen AI is..." Is a compulsory license the answer?
One good thing to come out of 2023 was Ed Sheeran winning his case. I'm glad there is still some thinking about what the point of copyright law is... Encouraging the useful arts, not stifling them.
I'd add that the idea that musicians, artists etc should have some kind of moral claim to control who uses their work is deeply offensive to scientists and mathematicians.
Our theorems and theories are every bit as much the result of hard work and creativity (and no they aren't just facts about the world -- the same laws can be phrased many different ways but some are more elegant and useful). However, no one ever suggests we should have moral rights to determine who gets to use them.
Yes, limited copyright for artistic expression is a worthwhile incentive for creation and we don't think it's a good tradeoff in the case of scientific discovery. That's fair enough. But it's unreasonable to suggest that artists should somehow have moral control over their creations beyond what's the societally optimal incentive while not giving that same control to mathematicians and scientists (I obviously think no one should get it).
Totally agree with this. There is no other form of intellectual property where anybody would even fathom you having those rights past your death ... other than trademarks which are a whole different thing and very different imo
That’s true. I wasn’t careful enough with my phrasing. Music is generally life of the author + 70 years. Patents are 20 years to my understanding. So the minimum length for music is 70 years. Assuming someone lives an average life span, you are looking at protection for close to 150 years which I think is hard to justify. If it were a short fixed term like a patent, the persisting after death does make sense.
I was actually almost done writing this as a response to Ethics Gradient when your response popped up, so I'll put it here instead:
Right of publicity (a.k.a. "name, image, likeness rights") also survives death for some period of time as a matter of law in most, if not all, US states, sometimes longer than copyright. (Indiana allows it for 100 years post-death; Tennessee technically only allows it for 10 years post-death, but it can be indefinitely renewed by the estate/heirs.)
Trade secrets last as long as the criteria for qualifying as such are met and thus theoretically can last forever, not being dependent on the life of the original creator at all.
Moral rights under US law are the only type of intellectual property that specifically terminate on the creator's death. (And I suppose also "reputation," if you classify that as a form of intellectual property, since defamation claims can't be based on post-death statements about the decedent.)
I've long felt that compulsory licensing needs to be taken well beyond music. If you want to create your own cartoon staring scroge McDuck and can't reach a licensing agreement with the copyright owners you should just be allowed to go ahead and do it and submit your work to some arbitration board that decides a licensing fee per usage or division of profits.
This is important in the case of cultural creations but is particularly vital in the case of things like computer programs and data. The very existence of android should never have been balanced on a knife edge depending on if it was fair use and companies shouldn't be able to use copyright to limit compatibility. Anyone should be able to get a compulsory license for any copyright.
The idea that authors should retain some kind of control over how their works are used (eg moral rights) is one of the worst ideas of all time and I don't understand why many otherwise left leaning individuals support it. Many European countries are happy to apply a high tax rate to earnings but yet allow an artist to deny other people the benefit of reusing their creation.
All of human society is built on using other people's ideas and innovations. Why should this be different because you filled a copyright. People who come up with policy ideas don't get to decide who can use them (eg if you suggested the Obama/RomneyCare idea you can't say one party can't use it). Scientists don't get to deny other people the use of their laws.
The world is made better off when we can all build on the ideas that go before us. And it's not like it follows from any philosophical notion of private property (eg on a Lockean perspective asserting copyright is actually violating other people's property rights to make what they want).
Yes, copyright is important to encourage innovation but that's the only justification.
I largely agree, but the very literal protection from someone copying your work word for word and selling it shouldn't be allowed for some amount of time... Maybe 25-50 years tops.
I agree that it's desierable that some kind of compensation be given for that use to incentivize creation but I don't think that (in an ideal world) that should give the author the ability to, say, refuse to sell their work in a particular area or format even within that time period.
For instance, even if you believe that your work is designed to be read if you refuse to allow an audiobook or if you try and refuse to let your story be included in an anthology I think it's totally appropriate that there be a compulsory licensing scheme where the government says, ok you get this much in royalties per copy of the work but they get to create an audiobook/anthology even if you don't approve.
To be clear, this is what is ideal, I realize in actuality there will be all sorts of concerns and complications which might make this a bad idea. But it shouldn't be ruled out in principle.
Agreed. I think ideally intellectual property protections are very strong for some limited amount of time. For a long time it was 28 years with an option to extend another 28, which feels like an ample amount of time.
Was just recently discussing the idea of going to a compulsory licensing model for fiction IP. To my ears it sounds way better than current copyright law. It'd be great to know if anyone qualified has explored this idea in more detail.
Is there a potential distinction between a "sound recording" that includes a vocal, and one that is purely instrumental? I could see an artist having a huge problem if another artist could take his or her *actual* vocals, place it in any song with any message (no matter how controversial or inflammatory), and then just pay the licensing fee later. In my mind, using a sound recording of someone's actual voice creates the possibility of reputational damage to the vocal artist in a way that using the actual sound recording of an instrumental part of a song may not. But I know this distinction is somewhat arbitrary, and instrumental musicians would likely object to a two-tiered licensing system.
Fixing copyright is certainly on the SB reform agenda. Thank you for writing this piece.
My family had to deal with a bunch of music copyright law when handling my aunt and uncle's estate and it was not pleasant. My aunt was a performer while my uncle was a producer, writer, and performer.
Selfishly, I would like to see a bit of loosening of the copyright law for sampling just so we can get more glorious albums like Three Feet High and Rising, Paul's Boutique, and Endtroducing.
I don’t have time yet to go through all the comments so this has probably already been said, but I’m 100% in favor of anything that brings back the Golden Age of Sampling. Let a million Paul’s Boutiques bloom!
I found this post interesting but I don't think I agree with the conclusion. First, I think it ignores that an artist may want to protect the legacy or artistic use of their work more than maximizing profits on said work. In the Prince example, we can't really say that Prince would be worse off if he considered and rejected the offer. He may place a subjective value on protecting his music in excess of the royalties.
Moreover, I think that an artist's philosophical claim to an actual recording is stronger than to a composition. The composition is the idea of combining certain sounds, symbols, and letters together in a certain way. Someone else could copy a composition and duplicate it perfectly. In contrast, a recording is a specific sound that can never be perfectly mimicked because it is the artists' voices (or breath or hands as the case may be) as well as the particular place and time of recording. Because recordings are more unique and personal, it makes sense to protect them more.
Additionally, in economic terms, the loss of restricting the use of recordings is relatively small if you already have a compulsory license for the composition. If an artist really likes part of a song they can just cover it.
However, I do think that the issue of unkown or unreachable owners is valid (and likely applies to other works as well). IP holders should be required to publicly list their contact information on the government's website. If a would-be licensee shows that the contact info is no longer up to date for a certain length of time, then the government should license the relevant IP out at a set rate and hold the proceeds in trust until either the owner is contacted or the copyright expires.
I'd like to be able to demand people only say nice things about me. Doesn't mean I should get that power. The underlying justification for copyright is to incentivize creation and I don't see how the author has any justified claim to control how other people use it anymore than Laffer gets to control who gets to suggest lowering taxes will increase returns.
Indeed, if you go back to Lockean justifications for property rights copyright and IP are actually violations of those rights because they seek to tell someone else what they can do with their labor/stuff.
More generally, if it's a moral right to control shouldn't that have unlimited duration? If Homer only wanted Greeks to read his work should we still respect that? If not what's different about modern artists?
It's worth saying that, while Sinéad O'Connor could make the recording of Nothing Compares 2 U using a compulsory licence, she did need a synchronization licence from Prince for that iconic music video.
That is wild, that the video requires extra licenses not needed for the recording, even though the licenses are only about things that are already used in the recording!
The video is legally considered to a be a short film that uses the music. In order to use music in a film, you have to license the film (same for TV and ads), and those require voluntary licences, one for the phonorecord (the sound recording - that's what the P in a circle symbol stands for on your record labels) and one for the composition (lyrics and music, which may have separate copyright holders).
A lot of TV made before the rise of the boxset used only licensed the music for broadcast (ie not for reproduction onto media) or only licensed it for a period of time, which has meant that a lot of TV made before 1995 or so was unable to be released on home media or streaming, or was released with the music changed (sometimes with a cover of the original song if the composition rights could be cleared but not the phonorecord rights, sometimes with an entirely different song). Film had home media as a major part of the revenue from far earlier on (VHS rentals, etc) and also has always had far larger budgets, much more likely to pay for music to be composed, and much more able to afford to buy rights to music it used.
Music videos are exactly in the same situation, but, obviously, the phonorecord synchronization is never an issue, and they do usually have the ability to get rights from the composer if they have the budget for a music video - it's record companies negotiating with each other at that point, usually.
Note that amateurs uploading covers to YouTube do technically require a synchronization license from the composer (but YouTube has negotiated blanket terms with the performance rights organisations so this is not normally an issue in practices). Putting the cover anywhere other than YouTube is legally more dubious, but in practice doesn't get pursued.
Very interesting and unexpected piece. I certainly didn't think I was going to learn so much about sampling when I woke up this morning. I'm especially grateful for learning where the beginning of "Paper Planes" -- a piece I love -- came from.
And it got me to thinking. How did earlier periods handle this kind of thing? And I thought specifically about that masterpiece, Brahms' "Variations on a Theme by Haydn" and how he got the rights from the long-dead Haydn, only to learn this from Wikipedia:
"Brahms composed the work on a theme entitled "Chorale St. Antoni", which Brahms found in a wind ensemble composition. When Brahms discovered it, the wind ensemble piece carried an attribution to the composer Joseph Haydn. Brahms titled his own composition accordingly, crediting Haydn for the theme. However, music publishers in the early nineteenth century often attached the names of famous composers to works by unknown or lesser-known composers, to make the pieces more saleable. Subsequent research has concluded that the wind piece Brahms used as a source does not fit Haydn's style. The wind ensemble piece remains without clear attribution."
This is a great piece, as someone in the indie electronic music industry who also DJs. I never thought I'd see a Francis Grasso shout out in Slow Boring, what a pleasant surprise!
Great piece! One question:
> When you consider the search and transaction costs of licensing a sound recording, copyright holders likely aren’t making as much money as they could be.
If this is correct, why don't copyright holders sign up to an arrangement like the compulsory one proposed? "Sample any of my tracks for X% of the revenue from the song"?
Good question. It’s usually not that simple because two different entities own the composition copyright and the recording copyright. So you’d have to have those two entities agree. If you own both you can theoretically do. We’ve seen some people try a similar thing with AI. The electronic artist Grimes told people they could use AI to imitate her voice for some percentage split of royalties.
I was hoping to see "and so we can learn from the music industry that the best way to solve the copyright problem for training gen AI is..." Is a compulsory license the answer?
Excellent article.
One good thing to come out of 2023 was Ed Sheeran winning his case. I'm glad there is still some thinking about what the point of copyright law is... Encouraging the useful arts, not stifling them.
I'd add that the idea that musicians, artists etc should have some kind of moral claim to control who uses their work is deeply offensive to scientists and mathematicians.
Our theorems and theories are every bit as much the result of hard work and creativity (and no they aren't just facts about the world -- the same laws can be phrased many different ways but some are more elegant and useful). However, no one ever suggests we should have moral rights to determine who gets to use them.
Yes, limited copyright for artistic expression is a worthwhile incentive for creation and we don't think it's a good tradeoff in the case of scientific discovery. That's fair enough. But it's unreasonable to suggest that artists should somehow have moral control over their creations beyond what's the societally optimal incentive while not giving that same control to mathematicians and scientists (I obviously think no one should get it).
Totally agree with this. There is no other form of intellectual property where anybody would even fathom you having those rights past your death ... other than trademarks which are a whole different thing and very different imo
Patent terms are also a fixed number of years regardless of whether the inventors or original claimants are living or dead.
That’s true. I wasn’t careful enough with my phrasing. Music is generally life of the author + 70 years. Patents are 20 years to my understanding. So the minimum length for music is 70 years. Assuming someone lives an average life span, you are looking at protection for close to 150 years which I think is hard to justify. If it were a short fixed term like a patent, the persisting after death does make sense.
I was actually almost done writing this as a response to Ethics Gradient when your response popped up, so I'll put it here instead:
Right of publicity (a.k.a. "name, image, likeness rights") also survives death for some period of time as a matter of law in most, if not all, US states, sometimes longer than copyright. (Indiana allows it for 100 years post-death; Tennessee technically only allows it for 10 years post-death, but it can be indefinitely renewed by the estate/heirs.)
Trade secrets last as long as the criteria for qualifying as such are met and thus theoretically can last forever, not being dependent on the life of the original creator at all.
Moral rights under US law are the only type of intellectual property that specifically terminate on the creator's death. (And I suppose also "reputation," if you classify that as a form of intellectual property, since defamation claims can't be based on post-death statements about the decedent.)
I've long felt that compulsory licensing needs to be taken well beyond music. If you want to create your own cartoon staring scroge McDuck and can't reach a licensing agreement with the copyright owners you should just be allowed to go ahead and do it and submit your work to some arbitration board that decides a licensing fee per usage or division of profits.
This is important in the case of cultural creations but is particularly vital in the case of things like computer programs and data. The very existence of android should never have been balanced on a knife edge depending on if it was fair use and companies shouldn't be able to use copyright to limit compatibility. Anyone should be able to get a compulsory license for any copyright.
The idea that authors should retain some kind of control over how their works are used (eg moral rights) is one of the worst ideas of all time and I don't understand why many otherwise left leaning individuals support it. Many European countries are happy to apply a high tax rate to earnings but yet allow an artist to deny other people the benefit of reusing their creation.
All of human society is built on using other people's ideas and innovations. Why should this be different because you filled a copyright. People who come up with policy ideas don't get to decide who can use them (eg if you suggested the Obama/RomneyCare idea you can't say one party can't use it). Scientists don't get to deny other people the use of their laws.
The world is made better off when we can all build on the ideas that go before us. And it's not like it follows from any philosophical notion of private property (eg on a Lockean perspective asserting copyright is actually violating other people's property rights to make what they want).
Yes, copyright is important to encourage innovation but that's the only justification.
I largely agree, but the very literal protection from someone copying your work word for word and selling it shouldn't be allowed for some amount of time... Maybe 25-50 years tops.
I agree that it's desierable that some kind of compensation be given for that use to incentivize creation but I don't think that (in an ideal world) that should give the author the ability to, say, refuse to sell their work in a particular area or format even within that time period.
For instance, even if you believe that your work is designed to be read if you refuse to allow an audiobook or if you try and refuse to let your story be included in an anthology I think it's totally appropriate that there be a compulsory licensing scheme where the government says, ok you get this much in royalties per copy of the work but they get to create an audiobook/anthology even if you don't approve.
To be clear, this is what is ideal, I realize in actuality there will be all sorts of concerns and complications which might make this a bad idea. But it shouldn't be ruled out in principle.
I'm all for this idea
Agreed. I think ideally intellectual property protections are very strong for some limited amount of time. For a long time it was 28 years with an option to extend another 28, which feels like an ample amount of time.
Was just recently discussing the idea of going to a compulsory licensing model for fiction IP. To my ears it sounds way better than current copyright law. It'd be great to know if anyone qualified has explored this idea in more detail.
Is there a potential distinction between a "sound recording" that includes a vocal, and one that is purely instrumental? I could see an artist having a huge problem if another artist could take his or her *actual* vocals, place it in any song with any message (no matter how controversial or inflammatory), and then just pay the licensing fee later. In my mind, using a sound recording of someone's actual voice creates the possibility of reputational damage to the vocal artist in a way that using the actual sound recording of an instrumental part of a song may not. But I know this distinction is somewhat arbitrary, and instrumental musicians would likely object to a two-tiered licensing system.
Thanks for having me! I really enjoyed writing this piece.
Fixing copyright is certainly on the SB reform agenda. Thank you for writing this piece.
My family had to deal with a bunch of music copyright law when handling my aunt and uncle's estate and it was not pleasant. My aunt was a performer while my uncle was a producer, writer, and performer.
Selfishly, I would like to see a bit of loosening of the copyright law for sampling just so we can get more glorious albums like Three Feet High and Rising, Paul's Boutique, and Endtroducing.
was looking for SOME reference to De La Soul, thank you
I don’t have time yet to go through all the comments so this has probably already been said, but I’m 100% in favor of anything that brings back the Golden Age of Sampling. Let a million Paul’s Boutiques bloom!
I found this post interesting but I don't think I agree with the conclusion. First, I think it ignores that an artist may want to protect the legacy or artistic use of their work more than maximizing profits on said work. In the Prince example, we can't really say that Prince would be worse off if he considered and rejected the offer. He may place a subjective value on protecting his music in excess of the royalties.
Moreover, I think that an artist's philosophical claim to an actual recording is stronger than to a composition. The composition is the idea of combining certain sounds, symbols, and letters together in a certain way. Someone else could copy a composition and duplicate it perfectly. In contrast, a recording is a specific sound that can never be perfectly mimicked because it is the artists' voices (or breath or hands as the case may be) as well as the particular place and time of recording. Because recordings are more unique and personal, it makes sense to protect them more.
Additionally, in economic terms, the loss of restricting the use of recordings is relatively small if you already have a compulsory license for the composition. If an artist really likes part of a song they can just cover it.
However, I do think that the issue of unkown or unreachable owners is valid (and likely applies to other works as well). IP holders should be required to publicly list their contact information on the government's website. If a would-be licensee shows that the contact info is no longer up to date for a certain length of time, then the government should license the relevant IP out at a set rate and hold the proceeds in trust until either the owner is contacted or the copyright expires.
I'd like to be able to demand people only say nice things about me. Doesn't mean I should get that power. The underlying justification for copyright is to incentivize creation and I don't see how the author has any justified claim to control how other people use it anymore than Laffer gets to control who gets to suggest lowering taxes will increase returns.
Indeed, if you go back to Lockean justifications for property rights copyright and IP are actually violations of those rights because they seek to tell someone else what they can do with their labor/stuff.
More generally, if it's a moral right to control shouldn't that have unlimited duration? If Homer only wanted Greeks to read his work should we still respect that? If not what's different about modern artists?
It's worth saying that, while Sinéad O'Connor could make the recording of Nothing Compares 2 U using a compulsory licence, she did need a synchronization licence from Prince for that iconic music video.
That is wild, that the video requires extra licenses not needed for the recording, even though the licenses are only about things that are already used in the recording!
The video is legally considered to a be a short film that uses the music. In order to use music in a film, you have to license the film (same for TV and ads), and those require voluntary licences, one for the phonorecord (the sound recording - that's what the P in a circle symbol stands for on your record labels) and one for the composition (lyrics and music, which may have separate copyright holders).
A lot of TV made before the rise of the boxset used only licensed the music for broadcast (ie not for reproduction onto media) or only licensed it for a period of time, which has meant that a lot of TV made before 1995 or so was unable to be released on home media or streaming, or was released with the music changed (sometimes with a cover of the original song if the composition rights could be cleared but not the phonorecord rights, sometimes with an entirely different song). Film had home media as a major part of the revenue from far earlier on (VHS rentals, etc) and also has always had far larger budgets, much more likely to pay for music to be composed, and much more able to afford to buy rights to music it used.
Music videos are exactly in the same situation, but, obviously, the phonorecord synchronization is never an issue, and they do usually have the ability to get rights from the composer if they have the budget for a music video - it's record companies negotiating with each other at that point, usually.
Note that amateurs uploading covers to YouTube do technically require a synchronization license from the composer (but YouTube has negotiated blanket terms with the performance rights organisations so this is not normally an issue in practices). Putting the cover anywhere other than YouTube is legally more dubious, but in practice doesn't get pursued.
Very interesting and unexpected piece. I certainly didn't think I was going to learn so much about sampling when I woke up this morning. I'm especially grateful for learning where the beginning of "Paper Planes" -- a piece I love -- came from.
And it got me to thinking. How did earlier periods handle this kind of thing? And I thought specifically about that masterpiece, Brahms' "Variations on a Theme by Haydn" and how he got the rights from the long-dead Haydn, only to learn this from Wikipedia:
"Brahms composed the work on a theme entitled "Chorale St. Antoni", which Brahms found in a wind ensemble composition. When Brahms discovered it, the wind ensemble piece carried an attribution to the composer Joseph Haydn. Brahms titled his own composition accordingly, crediting Haydn for the theme. However, music publishers in the early nineteenth century often attached the names of famous composers to works by unknown or lesser-known composers, to make the pieces more saleable. Subsequent research has concluded that the wind piece Brahms used as a source does not fit Haydn's style. The wind ensemble piece remains without clear attribution."
https://en.wikipedia.org/wiki/Variations_on_a_Theme_by_Haydn
My guess is that rules in Europe might be different than in America, plus copyright didn't last as long in the nineteenth century.