My Journey in the World of Copyrights

The issue of Intellectual Property (IP) is a very contentious one in libertarian circles and indeed between differing political philosophies, not all parties seem to agree on whether such a system could exist in a free society or whether such a system is just in the first place. Admittedly, it wasn’t an issue that I had put much thought into until I began reading some of Stephan Kinsella’s work, which eventually converted me to being an anti-IP advocate. While it is great to study and to understand the theoretical positions for or against IP, it is quite another thing to actually experience such a system first hand in the practical sense. Fortunately or unfortunately, I recently had the privilege of that experience.

I am a multi-instrumentalist who also has a love and knack for production. My idea was simple: I’m going to produce something. So I decided that I would perform and record a full cover of a song and also produce an original video to accompany it, and then I would post the whole thing on the internet. Since I am not planning on monetizing this project I figured that I wouldn’t need to worry about copyright or licensing, but I soon realized that I was being quite naive.

Rather than spending time actually recording and producing my music video I instead found myself searching through the labyrinth of copyright laws to figure out just how I could go about completing my project without either being sued or thrown into a cage. As it turns out, there is a licensing scheme that exists and all people must comply with it in order to do anything creative with a work written by somebody else.

There are four basic licenses dealing with music copyrights, they are:

Performance License- This license deals with performing a work in a public place or venue. It could be a bar, a club, on television, a street corner, an aerobics class, on the internet, or any other situation in which multiple people will be hearing the music. This license applies both to cases where one is actually performing the piece, as well as when they are simply playing a previous recording of the piece (such as on a jukebox). The licensing agencies that deal with this area are ASCAP, BMI and SESAC. The fees are varied, depending upon the venue and the song(s) being performed (i.e. the class of license being issued), as well the fees can be based upon a per song basis or a blanket license that covers a particular period of time.

Mechanical License- This license deals with all cases where a work will either be recorded (as in the case of a cover) or simply copied to a medium. Essentially, any time a work is put onto a medium other than the original medium, even if they are of the same type (CD, hard drive, website, etc), one must get this license. The licensing agencies that deal with this area are Harry Fox Agency and Limelight. The fees are 10¢ per physical copy or download, and 1¢ per online stream (for songs up to five minutes in length), as well as processing fees.

Synchronization License- This license deals with all cases where a song will be synchronized to a visual media output (such as a film, commercial, website,etc). There are no agencies that issue this license, it must be obtained directly from the publisher and/or songwriters. The fees vary from no charge at all up to $200,000 or more, per instance or into perpetuity.

Print License- This license is pretty straight forward. Any time you wish to reprint the lyrics or music of a song (words, notation, or tablature), you must obtain this license. The fees vary, as do the issuing agencies and the conditions of the license.

Now one might say to themselves, “that seems pretty straight-forward and simple”, but au contraire, this is where it starts to get interesting. To keep things simple, I’ll just run through some of the considerations and complications that I encountered with each license.

At first I was considering hosting my work on my own blog, but then I realized that in order to do this I would have to get a performance license. After inquiring about what this would cost, I soon decided that this probably would not be a good idea, and that I would be better off using Youtube instead. The reason is that Youtube already has a blanket performance license that covers everything, if they didn’t, then their business model of user-created content would crumble very quickly.

Almost all online media websites with user-created content have these licenses, which is very helpful to those who wish to do what I am doing, but it only shows how very insidious this license is. The owners of these websites are not the creators of the content, yet they are still required to purchase the license as if they were. The logical implication here is that one party is being held accountable for the actions of another party, and that they are also being held legally liable for any “damages” caused to the copyright holder. It is sort of like if you had a party at your house, and one guest punched another guest, yet you’re the one that is hauled off to jail for assault (this isn’t a perfect analogy because it deals with actual property, whereas in the case of copyrights, there is no real property under discussion).

The one license that I knew I must purchase is the mechanical license. This allows me to record my own version of the song and to release it to the public (or even sell CDs or digital downloads). However, things get a little tricky when it comes to the copyrights of the songwriter(s). If there is more than one songwriter, then they can either own all portions of the song equally or each person owns only their contribution to the song (i.e. the guitar part, the bass part, the vocal, etc), or some combination of the two. Unless the songwriter(s) have their own publishing firm, they will most likely be dealing with another party as the publisher, who in turn will own a portion of the rights to the work (usually 50%). The kicker here is that the only purpose of having a publisher at all is for it to be the sole issuer of licenses of a copyrighted work, but rather than accepting a fee for this service, the publisher instead acquires actual ownership of a portion of the copyright. Hmm?

In the case of my project, the song in question has three songwriters who each own their respective contributions, but since they contracted with a publisher, the publisher owns a portion of each songwriter’s copyright to the song. So even if I got the permission to record the song from all three songwriters, I’d still have to go through the publisher for final clearance. Even more, I would still have to pay the licensing fees regardless of whether the songwriters demand me to do so or not, because the publisher will always demand a fee.

As I’ve mentioned above, I also wish to make an original video to accompany my cover of the song, so one would think that I must get a synchronization license in addition to the mechanical license. This is not necessarily true and it is the portion of this story that gets a little vague and non-exact.

If I were to host my project on my own blog I would have to not only get a synchronization license, but also the mechanical and performance licenses, as well. Luckily, due to the shear number of people who post videos of themselves doing covers of songs and posting the original recordings of songs, Youtube has gone to great lengths to secure agreements with music publishers, such that so long as the person doing the posting of the song is not doing so for monetary gain, then they cannot be held liable for any “damages” inflicted upon the songwriters and publishers. However, the video can still be taken down without notice.

One problem that I encountered when becoming aware of the agreements that Youtube has with music publishers is that almost none of these agreements are made public, so most people have no way of knowing whether they are breaking the law or not when they post copyrighted material on Youtube. Some of the publishers do post small blurbs about posting such covers on Youtube, but they are very vague.

In my case, the song that I am recording is published by Warner Music Group (WMG), and they do post their policy on their site (you can read it here). Clearly WMG is not granting any real rights or licenses in this agreement, rather they are saying that they won’t sue so long as you are only posting WMG content in a “personal, non-profit” manner. Further, it states that they –as well as any other party that holds a copyright claim to the work– can decide to remove the content, or to simply monetize it.

If you have ever wondered why there are so many ads before seemingly personal videos on Youtube, this is why.

Essentially, the publishers realize that they cannot pursue every copyright infringement due to the shear number of people posting. Further, they realize that in many cases it is in their best interest to monetize the video for their own benefit rather than take it down. While this is a trend toward a loosening of the restraints on those who post covers on Youtube, it also hinders the spread of information by having an advertisement before the video (which may cause some to simply skip the video altogether).

With my project I did purchase the mechanical license, but I have decided to forego purchasing the synchronization license (due to the prohibitive cost). This is actually taking a very big risk on my part. While I will be free from liability for posting the video, there is no guarantee that it won’t be taken down, in which case all of my efforts would have been wasted. Further, I cannot monetize the video at all, but due to the particular mechanical license that I obtained, I will have to pay 1¢ for every view of the video. While I don’t expect to get a ton of views, this still means that if the video where to, say, get 100,000 views, then I will owe WMG $1000 for something that I can make zero money on. That’s a pretty scary proposition, one that makes me question whether I should complete this project at all.

While a print license has nothing directly to do with my project, it bears discussing because it is very much related to my musical journey of learning.

Back in the 1990s when I was first learning how to play the guitar and bass, there was a great online resource hosted by UNLV servers called the On-line Guitar Archive (OLGA). Essentially, it was a massive library of guitar and bass tablature for just about any song imaginable, and it worked very much like Wikipedia does, with all content being user generated. Even better, these tablatures (or tabs) were extremely accurate and of good quality, because users would consistently correct and update the tabs.

Note that tablature does not contain any time, rhythm, or pitch information (the most important aspects of music), so one cannot use tablature effectively unless they already know the timing and pitches of the notes in the song, or they have a recording of the song to use for reference. Absent this, tablature is nothing more than lines and numbers, with no practical use.

One of the most important ways that musicians learn their craft is by learning and playing songs written by others, so it is no surprise that OLGA was a very popular website and was a boon for budding musicians the world over. However, beginning in 1996 the copyright complaints began to come in. The first was by EMI Publishing, who did not sue, but was able to persuade UNLV to kick the archive off of their servers. Two years later, the site came back up on a different server only to receive complaints from Harry Fox Agency, and thus disappeared again for a short period. Finally, in 2006 OLGA met its death as the National Music Publishers Association and the Music Publishers’ Association (NMPA and MPA respectively) issued an official take-down letter.

The result –other than me having to get better at ear training– is that now musicians would have to purchase tablature from the music notation industry. The problem here is that many of these pieces of sheet music and tablature are very expensive, as well they are very limited in what songs are offered. Further, the tablature websites that exist today are horribly inaccurate and are far less encompassing (I don’t know for sure, but my speculation is that this inaccuracy is a means of getting around copyright laws). While OLGA had accurate tabs for just about every song under the sun, and was continually updated with new material, instead we now live in a world where there are less resources for the beginning musician to learn their craft.

This journey through the world of copyrights has been an eye-opening experience for me. I already had a theoretical basis to justify my position against copyright, but having gone through this process, it has only further cemented my opposition to it.

It is said by the supporters of copyrights that it fosters the arts and protects artists. This is false. Clearly, as I have shown, the system of copyright kills the arts and exploits artists. The entire system is nothing more than a mechanism to make the publishers, copyright organizations and associations, and record labels a lot of money, all at the expense of the artist’s efforts. Luckily, in today’s world of digital technology, the internet, cheap recording gear, social networking, online media venues, etc; it is becoming much easier for artists to not only collaborate and produce their own material, but also to get their art out to the world without having to contend with the dictates of a third-party rent-seeker.

The great irony here is that while the proponents of IP falsely claim to promote innovation, it is innovation that is going to eventually kill IP. I think that this aptly explains the motive behind their lies.

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