My Google Alert on Copyright has been in overdrive over the last three weeks over Copyright news items. While I was reading through some of the articles, a persistent theme was present throughout.
Who really owns the rights to songs when government granted monopolies have hijacked the very definition of what copyright is?
First off, we have an entity called Zenbu Magazines Inc. that has filed a whole suite of cases against Apple, Sony, Google and Rdio over their streaming services. The crux of the argument is the same as the Sirius XM Radio case, over pre-1972 recordings and the royalties attached to those recordings.
The cases filed by Zenbu Magazines Inc., states that all of the services mentioned have been making money off of pre-1972 music recordings without paying any royalties to the owners of the original recordings.
Let’s get one thing clear here first.
Zenbu owns the copyrights to a lot of the songs in question. Sometime ago they would have paid a fee to the artists in question so that they could hold the rights. One of the songs in questions is a song called “Sin City” by the band The Flying Burrito Brothers. The song came out in 1969 on their album “The Gilded Palace of Sin”.
The song is written by Gram Parsons (who died in 1973) and Chris Hillman (who is born in 1944 and still alive today). Now the consensus for pre-1972 recordings was this;
- The songwriters get paid from sales and public performances of the song.
- The performers however get paid only from sales.
The issue today is if the performers of the song have a right to be paid for the public performance of those sound recordings.
So why is this such a big issue right now and not in the past.
The pre-1972 rule wasn’t an issue because terrestrial radio broadcasters are exempt from paying performance royalties on all sound recordings, no matter when they those sound recordings are made. The viewpoint held is that the recording artists would receive a lot of exposure from airplay and that exposure would then translate into sales.
But people are just not buying pieces of vinyl and plastic anymore to hear music that they like and what we have is a lot of financially challenged business models of these government granted monopolies.
What copyright has actually done in this case is give power to an entity that has NOT CREATED anything and with that power they are shaking down companies who provide a service to music consumers. This is a far cry from copyrights explicit purpose of granting the creator of an original work exclusive rights to its use and distribution, usually for a limited time, with the intention of enabling the creator to receive compensation for their intellectual effort.
And if anyone is thinking that the streaming companies should just pay up extra royalties to the performers of the songs of pre_1972 recordings (keeping in mind that the songwriters are getting paid), due to the mess of copyright regarding pre-1972 sound recordings, each streaming company would have to individually work out a deal with each copyright owner.
The streaming companies are all about scale. They are all about the MACRO so I don’t expect them to get all down and dirty and into the micro.
Then there is another case that went to the federal courts. This one is about a recent song from 1993 called “Whoomp! (There It Is)” and boy is this one is interesting.
In 1993, Cecil Glenn and Steven James wrote and produced the song. They also entered into an agreement with Bellmark Records. At the time, Alvertis Isbell was the president of Bellmark Records. Bellmark Records primary business model is all about owning sound recordings. However by 1997, Bellmark Records filed for bankruptcy and all of its assets were purchased by DM Records for a fee.
The copyrights of the songs owed by Bellmark Recordings would be assumed to be part of the assets purchased by DM Records. So of course, DM Records went on to monetize the copyright of the song “Whoomp”. Meanwhile, the masters of the song are owned by the writers of the song, Cecil Glenn and Steven James.
Sound confusing. It sure is. But read on.
To understand how fucked up this is, you need to go back to 1977, when Isbell Alvert formed his own music publishing company called Alvert Music. It is that company, Alvert Music that then filed a copyright infringement case against DM Records in 2002 (5 years after Bellmark Records went bankrupt) to have the courts declare that Alvert Music, not DM Records is the rightful owner of Bellmark Records assets and also the rightful owner of the composition copyright for “Whoomp”.
When the case went to trial, Isbell mentioned that the agreement he had with the songwriters of the songs transferred 50% of the songs copyright to Alvert Music. DM Records argued that Bellmark Records was the only assignee as the agreement was made between Bellmark Records and the songwriters.
And in December 2014, the Courts agreed that Alvertis Isbell owned the copyright and that DM Records was liable for copyright infringement.
So what assets did DM Records actually buy in 1997 for that $160,000 it gave to Bellmark Records?
Anyway in this instance we have the actual SONGWRITERS signing away a large percentage to another ENTITY. That entity goes bust, however the owner of that entity also owned another entity and he used that other entity to sue the new owner (which we will call the NEW ENTITY) for Copyright Infringement. It sure sounds like a lot of ENTITIES at play in lieu of creators.
So I looked up the meaning of copyright again in the dictionary.
the exclusive and assignable legal right, given to the originator for a fixed number of years, to print, publish, perform, film, or record literary, artistic, or musical material.
I would assume that the ORIGINATOR means the creator of the works.
Wikipedia has the following;
Copyright is a legal right created by the law of a country, that grants the creator of an original work exclusive rights to its use and distribution, usually for a limited time, with the intention of enabling the creator to receive compensation for their intellectual effort.
There is that word again.
So what the hell happened to COPYRIGHT to allow people who didn’t create anything the right to shakedown and sue others. What the hell happened to COPYRIGHT when the courts decided who has the right.