Everybody Researches: Out of date contract is music to Def Leppard’s ears.

It is a well-accepted fact that the law is a cautious and conservative profession.  While it is populated with intelligent people, these people also tend to be risk averse, be it with their client’s money or  their clients’ lives.  Whatever the reasons may be, there are times when the law finds itself having to play catch-up with concepts that are new to the courts.  The introduction of the cell phone is an excellent example.  For many years the laws regarding wire-tapping were clearly delineated, then along came cell phones.   Now, rather than getting a warrant for an area where the suspect has a “reasonable expectation of privacy” (Katz v. United States, 389 U.S. 347 (1967)  law enforcement needs warrants for the individual, irrespective of the type of the phone  or type of communication (voice-mail, e-mail, etc.) he or she is using.

Wiretapping technology has advanced greatly over the years.

The criminal law field is not the only one where technological changes have left the law behind.  Copyright and property law play a part in the amusing battle between band Def Leppard and Universal, the company that holds the rights to the band’s songs.  Although Universal has rights to the songs, they do not have rights to release them digitally since at the time the contract was made (1979) digital rights did not exist.  In order to make the songs available on iTunes Universal would need the permission of the band; permission that Def Leppard is not willing to give.  Lead singer Joe Elliott discussed some of the details on a recent segment of NPR’s “All Things Considered” and shared the band’s plan to re-record most of its  back catalog.  As Elliott explained, until Universal is “willing to come to the table with some kind of reasonable proposal…we shall go in the studio and have a bit of fun.”

The band is taking advantage of  the compulsory license for non-dramatic musical compositions under the Copyright Act of 1976.  This  compulsory cover license allows an artist to “legally sell their rendition…of another song based on a set royalty payment scale….The terms for a compulsory cover license are established by the U.S. Copyright office rather than the artist or record label and  a compulsory cover license does not require negotiations with the original musical composition copyright holder. ”

After looking at the comparably negligible royalty fees, and realizing that that “Rock of Ages” has recently moved from Broadway to the movie screen and features at least three of Def Leppard’s songs, it is likely that this maneuver is causing a bit of Hysteria over at Universal.

The U.S.C. rocks!

Taking Creative License

by Gina Jarrett

It’s hard to believe iconic albums such as Public Enemy’s “Fear of a Black Planet” and the Beastie Boys album, “Paul’s Boutique” couldn’t be made today.  These works of musical genius contain so many samples of other artists’ works that the licensing fees would be astronomical, making their commercial release practically impossible.

I don’t know about you, but I’d rather not think about a world where these albums didn’t exist.  Whether or not you’re a fan of either of these artists, it’s hard to deny the influence these albums have had on pop culture.

Kembrew McLeod is a well-published author on music, copyright, and popular culture. Peter DiCola is a law professor from Northwestern University. Together, they’ve written a fascinating look at the impact of U.S. copyright laws on sampling in the music business.  The book, Creative License: the Law and Culture of Digital Sampling [available in the PCL], notes that genres of music involving heavy sampling have been strangled to the point of near extinction, allowing only wealthy artists such as Jay-Z to be able to afford to include a few seconds of another’s work in their own tunes and release them commercially.

Creative License begins with a look at the musical era that pushed this debate to the forefront and got everyone—especially angry artists and their lawyers—discussing fair compensation for the use of the musical property of others.  This “musical property” not only includes composer’s rights, but the rights of the owner of the recorded version of the original. Ubiquitous songs such as Tone-Loc’s “Wild Thing;” Afrika Bambaataa’s “Planet Rock”; and MC Hammer’s “Can’t Touch This”— all contain samples of other artists’ works.  As these songs became million-sellers, the credits (and royalties) didn’t always go to every artist involved.  Van Halen’s “Jamie’s Cryin” was used in “Wild Thing;” two songs by Kraftwerk were used in “Planet Rock;” and Rick James’ “Super Freak” was used in “Can’t Touch This.” Whether or not Van Halen, Kraftwerk, and Rick James deserved money from the sales of the tunes that borrowed from them became the ultimate question.  Some artists saw any legislation on this as a direct assault on their artistic freedom.  Some music fans and critics agreed.  This debate continues today.  However, legislation has since been passed and a few landmark rulings have forced legal departments of music labels to research everything very carefully to try to avoid costly litigation against them and their artists.

As McLeod and DiCola point out, sampling has been going on for a long time.  They cite the Beatles’ “Revolution #9” as one early example.  The authors give an excellent definition of sampling as a form of musical collage: the taking of other works of art and inserting them into a new work of art.  When the items sampled were classical music recordings from EMI Studio’s archives, as with “Revolution#9,” no one paid much attention.  Over time, on both sides of the Atlantic, club DJs began using recordings of well-known tunes to create mashups.  Unknown artists struggling to make a name for themselves, began sampling well-known works into their creations and circulating underground demos.  Again, no one noticed.  But when the new works became wildly popular, that’s when the legal headaches really began.  In short, popular songs that sampled other popular songs were vulnerable to lawsuits.  And the more recognizable the sample, the greater the vulnerability.

In the beginning there were really no clear laws in place to govern this new area of music.  Artists such as Public Enemy released entire albums created with the works of others.  At the time, if laws had forced the group to clear everything they used, it would have been disastrous.  Their works, especially the “Black Planet” album, used hundreds of works from many places.  Researching and clearing all materials used would’ve been a “legal nightmare.”

McLeod and DiCola talk with artists such as Yoko Ono, David Byrne, and George Clinton about how they’ve used sampling legally as well as their views on how copyright laws have helped or hurt the music industry.  Music industry insiders are also consulted, such as: music lawyer Donald Passman, Dean Garfield (formerly of the Recording Industry Association of America), and hip-hop historian/music journalist Jeff Chang.  Also interviewed are DJs and other underground musicians who admit they still “borrow” from others—they’ve learned to better disguise it and accept the legal risk of getting caught.  There’s discussion of how the current legal climate is creatively stifling and suggestions as to how these problems might be solved to fairly compensate all artists involved.  This book also tells the stories behind several major music industry lawsuits without dry legal analysis.

This book is excellent reading for both music lovers and law students. You will learn something. I promise.