The Personality Nexus

This chapter explores the changing legal landscape of moral rights in the context of music creation. It traces moral rights’ roots to the Kantian theory of authors’ personality rights in continental Europe and it also explains common law jurisdictions’ ideological resistance to a freestanding moral right doctrine in favor of a patchwork approach to the issue. It shows that international agreements including the Berne Convention, the WPPT, and the Beijing Treaty, have played different roles in promoting the minimal moral right standard for either music creators or performers at the international level. Furthermore, it should not be ignored that there has always been an unresolved tension between moral rights and the time-honored practice of music parody, because the former might exert a chilling effect on the latter. It is suggested that a reimagination of moral rights through the Kantian communicative authorship is crucial for accommodating parodic expressions in an increasingly reconfigurable music ecosystem.

Resale Markets for Digital Music

This chapter considers the ways in which the shift to digital distribution of copyrighted works alters the legal status of secondary markets for music. For centuries, the principle of exhaustion and the first sale doctrine have permitted owners of copies to resell or otherwise transfer their purchases. In a market largely defined by licensed digital downloads and streaming services, the application of those legal principles is uncertain. As a threshold matter, consumers may not count as owners for first sale purposes. Moreover, the transfer of digital files may entail acts of reproduction beyond the scope of the statutory first sale doctrine.

Growing the Grassroots: Reforming Talent Agent Legislation to Promote the Rights and Interests of Grassroots Artists

The music of grassroots artists is no longer confined to dive bars and late-night rotations on college radio. Today, the digitalization of the contemporary music industry provides grassroots artists with unprecedented access to a global music ecosystem. Nevertheless, talent agency statutes drafted in a pre-Internet music industry impede grassroots artists from reaping the benefits of modern technologies. Due to the inflexibility of these statutes, grassroots artists become lost in a music industry oversaturated with content because their advisors are prohibited from providing meaningful support. This chapter proposes legislators include “grassroots exceptions” in state-level talent agency statutes that would conditionally allow advisors of grassroots artists to procure certain types of employment. These exceptions would allow grassroots artists to efficiently participate in emerging music markets, as well as ensure that these statutes purporting to protect artists are equally promoting the interests of all artists.

Contracts and Copyright: Contemporary Musician Income Streams

Musicians typically earn revenues from two sources: copyright law and contract. The proportion of revenue derived from each of these sources varies from artist to artist, but an understanding of the general distribution of earnings from each source is useful when considering proposed legislative amendments. Through a series of qualitative interviews with working musicians, this article contributes to the ongoing conversation around copyright’s import to, and impact on, musician revenue at different career stages.

The Future of Music Trademarks under Dastar

Trademarks on recordings are routinely used to ensure the accuracy of identifying information that music consumers may care about. Yet under the U.S. Supreme Court’s 2003 decision in Dastar Corp. v. Twentieth Century Fox Film Corp., the federal trademark statute is not concerned with the source of intangible content such as music (or pictures, literature, etc.). The relevant statutory provision’s reference to “origin of … goods,” the Court held, extends only to physical products. Lower courts have tended to read this case expansively. The upshot of these readings is that physical objects, not intangible ones like expressive works, are the only goods whose source matters in trademark law. Though courts almost certainly do not intend this result, their reasoning requires the conclusion that accuracy over expression’s source is something that trademark law cannot police. This chapter provides a descriptive account of the disruption that these cases would create for music trademarks if their legal reasoning were taken seriously. Dastar would prevent recording artists and labels from using trademark law to manage how they designate themselves as the source of their primary product: recorded music. Recordings are simply not a relevant good for which a mark could ever indicate legally cognizable source to begin with. The chapter concludes by arguing that false advertising claims should be available to musicians, labels, and publishers to do what trademark law cannot—prevent competitors from falsely attributing authorship either to themselves or to others—whenever such factual statements of authorship are material to consumers.

Writing Technology/Inventing Music: Similarities and Differences of Research-Based Creativity and Innovation in Patented Inventions and Copyrighted Works

Based on the author’s research for the development of a phonograph tonearm and his lifelong experience as composer, this chapter explores the similarities and differences that exist between the invention of technological products protected by patents or trade secrets and the composition of musical pieces registered as copyrighted works. In both instances, the process of invention generates from the start a number of questions that need appropriate answers. While this approach seems evident in the process of technology, artistic research follows similar models. Differences reside at a deeper level, where the types of consciousness involved are of different natures and invoke the question of human individuality and freedom, and their interaction with the community.

“Tell the Truth”: Truth in Music Advertising Post TAM

When a music group breaks up, what happens to the trademark? The music industry is full of stories about bad breakups of bands at their best, as well as dispirited dissolutions after disappointing downturns. Sometimes, multiple parties claim the right to use the name of the band as a trademark for ongoing musical pursuits. This chapter considers how courts in the United States handle trademark fights over band names. It also analyzes largely forgotten state “Truth in Music” Acts that aim to keep legacy performing groups and their managers honest by requiring them to tour with at least one original recording musician—or identify themselves as tributes, rather than the genuine article. This commitment to “truth” about the origin of these bands seems consistent with the purpose of federal trademark protection to make “actionable the deceptive and misleading use of marks” and “to prevent fraud and deception” in commerce. But three recent US Supreme Court cases, United States v. Alvarez, Matal v. Tam, and Iancu v. Brunetti, indicate that courts might apply constitutional scrutiny to laws like Truth in Music acts that punish lies, even if those laws are consistent with standard justifications for trademark protection. Evaluating Truth in Music Acts in light of these cases may help us predict how much of the current trademark regime could be swept away on a rising tide of judicial scrutiny.

Standardized Identifiers and Electronic Data Interchange Rules for Music

The music industry uses several categories of information standards, which involve policies, governance rules, and technical specifications. This chapter explains the standardized ways of identifying music-related parties, intellectual property, publications, products, and releases; of formatting music metadata; and of exchanging data electronically. It describes how parties such as songwriters/composers, music publishers, recording artists, performers on sound recordings, and record companies are identified through use of the IPI, IPN, and ISNI; intellectual property such as musical compositions and sound recordings and music videos are identified through use of the ISWC, ISRC, acoustic fingerprints, and watermarks; and publications, products, and releases are identified through the use of the ISMN, GTIN, and GRiD. It explores the way that Music Data Style Guides are used to set rules regarding the presentation of information to consumers and the structure of data which accompanies digital music files. It explains the electronic data interchange standards, including the CIS and DDEX message suites, which are used to efficiently communicate information between parties in the supply and value chains. Finally, the chapter looks to the future, considering the information management segment of the music industry as a form of IT service management and explores ways that people, process, and technology may come together to maximize business value.

Contractual Relationships among Artists, Record Labels, and Artist Management Companies in Japan

Although Japan is the second largest music market in the world, the structure and practices of the music industry are little understood internationally. People overseas need to know how the music business works in Japan so that they can conduct business comfortably. The Japanese music industry has unique features in some respects. First, Japanese record labels remain heavily dependent on traditional physically packaged music although its profitability is much lower than that of digital distribution. Second, full-scale competition in the music copyright management business has just begun. While JASRAC monopolized this market for more than sixty years, the new entrant, NexTone has gradually increased the market share thanks to the frustration experienced by many music publishers and songwriters in their dealings with JASRAC. Third, the relationship between artists and artist management companies is more like an employer-employee relationship than a client-agent relationship. Artist management companies are fully invested in discovering, nurturing, and marketing young artists just the way big businesses handle their recruits. This chapter illuminates practices of the Japanese music industry for an international audience.