You probably already know this, but Garth Brooks is reportedly the best-selling albums artist of all time in the Unites States during the Sound Scan era (since 1991), and the third best-selling in the U.S. overall (behind the Beatles and Elvis). That order may be about to change. According to his press releases, Garth is about to allow his music to be purchased digitally for the first time. Up until now, he had refused to make his recordings available for downloads because he said he wanted consumers to buy albums, not individual songs. He could do that. He had that choice. Not because he was Garth, but because, as owner of those recordings, he had that right.
You may also be aware that on July 8th of this year, the reclusive author, Harper Lee, finally allowed her 1960 classic book, “To Kill A Mockingbird”, which is one of the greatest selling books of all-time, to be released digitally for the first time. The 88 year old author had refused to permit her book to be made available in digital format, saying, “I’m still old fashioned. I love dusty old books and libraries.” She could do that. She had that choice. Not because she was a best-selling author, but because, as owner of the book, she had that right.
A photographer has the right to refuse his photograph to be used in ways he disapproves. A painter can limit and control the number of reprints of his masterpiece. The owners of a computer program, a theatrical play, or a new design all have this same right. These works can be controlled, meaning the owners may refuse to allow their work to be used in some way if they so choose.
In other words, the owners of all of these copyrights are pro-choice. They have that right. But did you know there is one distinctive type of copyright where the owner does not have that choice? Yeah.…the song owner.
Now, I’m not just talking about the songwriters here. We all know in many cases, the songwriter assigns his rights to a publisher, who then owns the song, although sometimes a writer may keep his song and become his own publisher. Either way, the owner of a song does not have the ability to refuse to allow their song to be used through various outlets, including physical records, digital downloads, ringtones, or streaming of any kind, once the song has been published the first time.
This is primarily due to a certain section in the copyright law, section 115, which defines “compulsory licenses”, and applies only to songs. The word compulsory, in the Merriam-Webster dictionary, is defined as “having the power of forcing someone to do something”. This section allows licenses to be forced for songs only. Not records, not books, not photographs, paintings, computer programs, plays or designs…….just songs. And to make matters worse, the rates set for those uses which the owners can’t refuse are not set through negotiations or a fair market process, but rather defined by law.
There is a movement beginning to take hold today in the copyright review process to get rid of this section of the copyright law, which was first put into place in 1909 with the sole intent of preventing one piano roll company from monopolizing a particular song in that early music marketplace, which was years before recorded music, much less radio and streaming, were popular or even invented. Yet that 105 year old law still has a great impact today on limiting the rights of song owners.
During the June 25th Congressional House Judiciary hearing on Music Licensing, Part 2, Congressman Darrell Issa (R-CA) said that “The Constitution clearly says that we have to promote the progress of useful art for a limited time on behalf of the author’s exclusive right to the respective writings.” He goes further to say, “To me…the exclusive right is the right to exclude.” Sounds to me that, when it comes to copyright in songs, Mr. Issa is pro-choice.
Should a song owner have the right to withhold his song from being distributed through a digital service like Spotify? Record companies can. Yet an individual song owner, or even a large publisher like Sony ATV, cannot prevent their songs from being used by that type of provider.
Are you pro-choice? The question we must ask ourselves is, “why are songs the only type of copyright with this constraint?” Is that unfair to owners of musical compositions? If the purpose of the copyright law is to be fair and consistent across all types of copyrights, including, as Mr. Issa suggests, the right to exclude, why have we allowed this law to stay in place for 105 years? Isn’t it time for all of us to step forward and demand song owners be allowed to be “pro-choice”? Shouldn’t song owners, like Garth, have the right to kill a mockingbird if they want to?
John Barker, ClearBox Rights, LLC
John Barker is President & CEO of ClearBox Rights, LLC, an independent rights managements company based in Nashville, TN. He is also Chairman of the Copyright Society of the South. John publishes a blog related to songwriting, publishing and copyright issues which can be found at http://clearboxrights.wordpress.com or www.clearboxrights.com.