Chicago attorney Kevin Parks was kind enough to send me a copy of his new book, Music & Copyright in America: Toward the Celestial Jukebox.
Copyright in the music business can be a daunting subject for the uninitiated. For starters, you’re typically dealing with two distinct copyrighted works—one for the underlying musical composition and one for the sound recording of that composition. Next, each copyright actually entails a “bundle” of separate rights: reproduction, distribution, public performance, etc. Through industry practice and custom, many of these rights have come to be administered through different entities; the public performance right for musical compositions, for example, is primarily administered through collective licensing societies—ASCAP, BMI, and SESAC in the US. Finally, the US Copyright Act includes a number of compulsory licenses for certain uses of copyrighted works—mechanical reproductions of musical compositions and digital performances of sound recordings for noninteractive webcasters, to name two—which adds to the complexity.
How does one make sense of all of this?
In Music & Copyright in America: Toward the Celestial Jukebox, IP attorney Kevin Parks contributes to a better understanding of this system by exploring how it developed. Beginning in the early 19th century, when music as commerce first began to emerge in the US, he traces the legal and commercial developments of musical copyrights.
Composed of seven major sections, Parks chronicles the birth of the American music industry, the development of sound recording technology, the development of radio and growth of the public performance right, struggles against record piracy, the challenges brought by the internet, and finally today’s changes involving convergence and the shift toward the cloud.
Telling the story of music and copyright in America as Parks did is interesting on several levels.
First, it is somewhat striking how idiosyncratic the development of musical copyright law has been at times. Parks notes that the public performance right for musical compositions resulted from a last minute change to an 1897 amendment aimed primarily at shoring up the public performance right for dramatic compositions. Its appearance is somewhat of a mystery, as songwriters at the time were not pushing for the right, and there is “scant evidence” that the change was the result of lobbying from music publishers or more prominent songwriters. It would not be until the formation of ASCAP and the emergence of radio decades later that composers and publishers would begin to take advantage of the public performance right, which today generates over $1.5 billion a year for songwriters and music publishers.
The creation of the compulsory license for mechanical reproductions is another example. Mechanical reproduction, that is, copying a musical composition onto a mechanical object that plays the sounds like a piano roll or phonograph, was explicitly recognized as part of the exclusive right to reproduction under the Copyright Act of 1909. Prior to that, courts, including the Supreme Court the year before, had held that this type of copying was not within the gambit of a copyright owner’s right to reproduce his work, meaning piano rolls and records of popular songs could be produced without permission of the songwriters.
But at the same time, Congress created a compulsory license in the statute, allowing anyone to mechanically reproduce a song for a set fee without permission of the songwriter. The compulsory license was added because of concerns that a record company might monopolize the market on mechanical reproductions of songs—specifically the Aeolian Company, which had financed the earlier Supreme Court fight. Whether or not these concerns over the potential for monopoly were accurate or just a product of their time, the fact remains that the compulsory license is still with us, long after the Aeolian Company ceased making piano rolls.
Second, the book reinforces the idea that there has never been anything approaching any type of monolithic “music industry.” Throughout the last two centuries, the music industry has been comprised of a number of various stakeholders, whose interests sometimes aligned but often diverged. And neither the stakeholders nor interests remained constant; companies folded or shifted to new industries, technology and society changed. You often hear critics of copyright try to craft some overriding historical narrative of the law—the music industry hates innovation is a popular example. But such narratives oppose history.
Finally, it is easy to pick out parallels between historical challenges in musical copyright and today’s challenges. One common theme is how often emerging players would resist copyright liability by pointing out the “promotional” benefit their use of music provided. Another is how often positive changes only resulted when artists and creators spoke up.
The narrative is breezy and engaging. In just over 200 pages, Parks hits on all the major events of musical copyright in the US over the past 200 years while fleshing out the tale with interesting biographical sketches and historical tidbits. These latter details elevate the book from what could be a perfunctory treatment of an admittedly dry subject into a story equally at home on your bedroom nightstand as it is on a reference desk. And, once read, the book remains a tremendous source of citations to legal documents and secondary sources for delving deeper into the events and topics it addresses.
The book does get weaker the closer it gets to the present. Much of this is unavoidable: first, because any book dealing with current events will be somewhat outdated when it hits the stands because of the lag time between final draft and publishing, and second because it’s more difficult to craft a broader narrative without the benefit of history’s filter. For example, Parks includes a discussion of the Supreme Court’s 2012 decision in Golan v Holder. While the case is certainly as important as any Supreme Court case goes, it is unlikely to have much lasting impact on music and copyright, as it dealt with a relatively obscure and transitional provision in the Uruguay Round Agreements Act.
Finally, I’d be remiss in not pointing out that while the book may be of interest to a general audience, it is priced for the professional legal market.
But overall, the positives of Music & Copyright in America: Toward the Celestial Jukebox far outweigh any negatives. It remains a fascinating look at the development of the American music industry over the past two centuries and a tremendous resource for legal practitioners and scholars.