Fair Use In The Music Industry: Research Report

From English 194 Wiki Site

By Bethany Serrano
5:46, 9 May 2006 (PDT)

1 Abstract
2 Description
3 Analysis and Evaluation
4 Works Cited

Abstract

Intellectual property is a term that is constantly changing, which explains why fair use in the music world is a gray area that needs boundaries to be properly defined. The right questions must be asked in order to determine whether or not the intended use of musical property can be considered 'fair'. Because fair use applies to the use of Intellectual Property, it is important to keep in mind that the definition will change with technology. The realm in which Intellectual Property can now be accessed has changed greatly and therefore, so must the laws. The laws, however, are not able to keep up with the rate at which the technologies and situations are changing. Technology has had the greatest impact on music relating to Intellectual Property and the accessibility in which it can be obtained. Copyrights need to be obtained in order to protect the music that an author has produced. As times change, so will the laws and new situations will arise that will need to be addressed.

Description

Analysis of Fair Use and Intellectual Property related to the music industry. Definitions for Copyrights, Fair Use, Intellectual Property, Sound Sampling, Napster Court cases and accessibility of music.

Analysis and Evaluation

Before accurate research can really begin on Fair Use in the music industry, a few important terms must be examined. Intellectual Property applies to ideas and creative outcomes that are not necessarily “tangible". Another important term to clarify is Fair Use. Fair Use can be defined in several different ways. Perhaps the broadest definition of fair use could be described as “a shadowy territory whose boundaries are disputed." The reason for the argument over the boundaries has to do with the many varying situations one could find themselves in. Another way of describing fair use would be by composing a few important factors into the definition. The main factor that should be the focus has to do with the actual intent of the material being used. The question that could and should be asked is, “What is my purpose and how am I going to gain from the outcome of using some else’s work?” The answer to this question will add up if the work is actually okay to borrow. For example, if someone is using a song for a commercial they are going to play on television, and therefore, making some type of profit off of it, this would not be considered Fair Use. The use of the material must be in a “non-commercial and non industrial” way. This opens the door to allow people to be creative and use the music for their own personal needs. In other words, if someone wants to do choreography to a song they like and perform it in a public settting, it is legal. The purpose of the dance is not to make money and the dancers motive is not to make money by using the song. The more specific definition of Fair Use also states that the material can be used for “non-profit educational purposes.” This is important to note because there are many bits of information in music that are downloaded from the internet and books that may be discussed in a scholaly setting. As long as proper credit is included within the sharing, it is okay to use. The user of the information cannot gain any amount of profit from their sharings of the Intellectual Property. The main point to note with Fair Use is that in many ways, it cannot be tied down to just one, clear definition. There is no way to determine that it is okay to use the music, without first asking yourself the questions mentioned above.

Because of the continual rise of Intellectual Property and the use of the internet, Fair Use with music has changed greatly. For example, before music was completely accessible on the internet, the main worry of musicians and songwriters was whether or not someone was going to copy their work from what they heard of it on the radio or copued off a friend's CD. Although there was still a great deal of file sharing that went on, music was in no way as easily accessible to people as it is today. It is important, in order to get the full picture, to remember the good “old” days when if you wanted to hear a song you either had to borrow it from a friend, wait for it to play on the radio, or go to the store to buy it. Today, all one has to do is log on to the internet and there, any song by any artist can be found.

As technology continues to grow at an enormous rate, it is important to keep in mind that the term Intellectual Property will always need to be clarified. There are no hard and fast rules that one can apply to every situation. For example, as a result of the use of the internet, Napster, which was once a free music file sharing system, went under speculation because of the amount of music it was essentially “giving away.” Napster was a forty billion dollar industry that was started by a teenager. This resulted in a court case in 2000 between Napster and the music industry. The music industry won, enforcing Napster to charge people a fee for being able to access the music they download. The music industry was relieved the ruling went their way because if it would not have, they would have lost a great deal of revenue, and more importantly, the control the music industry feels they need to possess in order to be successful. Music sharing networks are taking the precautions that they can, but there is no way this can stop all of the illegal file sharing that goes on over the internet. If listeners do not respect these musicians rights, eventually, the music industry will take a serious turn for the worse. On the other hand, file sharing businesses (see Business) need to be able to keep up with the advanced times and perhaps get creative with this new system.

The Sonny Bono Act, which was passed in 1998, affected musicians and non-musicians in a couple of important ways. This act stated that restaurants and bars, as long as they were smaller than 3,750 feet and other non-food places smaller than 2000 sqare feet, were legally able to play music on their premises, without having to pay anyone royalties for the music. Artists had two ways of looking at this, restaurants and establishments were playing their music to constantly entertain guests, or they could also choose to look at it as free advertising. Another important aspect of the Sonny Bono Act is that the copyright of one's music lasts throughout the whole musician's life, plus seventy years after they die. This prevents any type of copyright stealing and inventors do not have to constantly worry about losing their rights to their work. The passing of this act was a stepping stone for musicians in the sense that their work is guaranteed to be protected for a significant length of time.

The music industry is a collaborative industry (see also Collaboration defined and Business) in the sense that often there is a great mix of people who go into the making of a song. When a song is produced, who directly possesses the rights to the song? Almost all of the time, unless other arrangements have been made, the rights belong to the song writer, who can also be called the author. It is important for the writer to protect their work by getting a Copyright. If the author does not get their work Copyrighted in time, something could happen like the Copyright case regarding The Beeatles' music. Early in their carrer they were not experienced and did not reatin Copyrights to their own songs. Decades later Michael Jackson was able to become the sole owner of most of The Beatles' songs because he could afford to purchase the copyright to them. Even though Jackson did own a great deal of the Beatles songs, he still did not get to have final say in all of the decisions regarding the songs. He apparently was only the prime owner of the sheet music. He also only got to keep about half of the profit from the songs and allgedly made the songs unavailable to even paying music downloaders.

There are a few different Copyrights that can be obtained in order to copyright music. The first type of copyright would be just a standard copyright, which was re-formalized in 1976. In a decision by Congress the author registers his or her work with the intent to be published but not necessarily by the author. So, by copyrighting the music, the author becomes sole owner of the sheet music and obtains the rights to make profit off of their work. No one can use their work to obtain any type of profit, without the author/owner’s permission. There is another type of copyright, which pertains to music called the "sound recording copyright". This copyright is defined by, “A right in a work resulting from the fixation of a series of musical or other sounds (including narration or spoken words.” So, basically the sound recording copyright protects the way in which the music or composition is performed. Depending on the legal rights, the performer, producer, or recording company can apply for this copyright protecting the work. Perhaps if a performer works with a recording company, they would agree and possibly share rights or negotiate some type of deal, depending on the situation.

A important aspect to remember when discussing copyright and Fair Use within music, is if someone wants to do a remake of a song, they must obtain proper permission unless the copyright has run out on the song. For example, if someone wanted to do a remake of an old song, they would need to research the song first and see what copyright laws are protecting it, if any. If it is protected by copyright, the “owner” needs to be contacted in order to give the go ahead in producing another form of the music. This is important to remember because depending on the type of deal the “owner” and performer wants to make, the copyright can be waved by permission only.

Music Sampling is another issue that had to be closely examined and only after going through court, people must pay even for one minute sound bits they want to use. This mainly applies to Rap and Hip Hop, which use a significant amount of digital music sampling. Often times the Rap or Hip Hop artists like to sample to give their own song a certain amount of focus or familiarity. They are allowed to do so, just as long as they comply with the rules that have been set before them. The courts are really trying to protect people's rights when it comes to the music industry. Never before have there been so many issues and situations within it. Because technology is changing at a fast pace, it is hard for all of the laws and regulations to remain valid for a significant length of time. What was appropriate ten years ago, will probably be null and void in coming years. Because the music industry is an ever changing industry, it is important to keep in mind that just like with all Intellectual Property, music needs to be protected and respected. If users do not respect the copyrights and laws, there is a possibility that they will get caught and have to pay a hefty fine. The rules have been set in place out of respect for the owner/authors of the music and should be respected just like all other Intellectual Property.