Music Licenses and Creativity

Jason Chee

SJSU CS 286 – Ackerman, Maya

September 14, 2016

Music Licenses and Creativity

In December of 1975, Eric Carmen released hishit power ballad All by Myself. Carmen plagiarized the melody of his ballad’s verses from Sergei Rachmaninoff’s Piano Concerto No. 2 in C minor.The estate of Rachmaninoff, a famed Russian composer of the late-Romantic era, sued and reached a settlement with Carmen for a twelve percent royalty on All by Myself. This is just one instance where the use of another’s work has been copied without permission. Over time, music copyright laws have been developed to ensure composers receive adequate compensation for their work.However, copyright lawscurrently hinder creativity more than they foster itin genres such as hip-hop, where integrating digital samples from multiple sources is the norm. Music is no longer produced by a single entity, and copyright laws must adapt to current methods of musical composition.

Consider athought experiment where Eric Carmen never produced his hit ballad because of copyright licensing fees. The world would never have been introduced to one of the most popular songs of the 1970s.For artists to have more creative freedom, there needs to be a system in place for the various types of musical borrowing.

The argument for stringent copyright laws is that artists will feel secure that their creativity is forever protected by law, thus worth their effort. According toOlufunmilayo B. Arewa’s paper “From J.C. Bach to Hip Hop,”the United States Copyright Act was created usingideas of Romantic authorship [1]. The Romantic notion of creativity is that creativity comes from the subconscious ego. Creativity is, thus, an individualistic ordeal. However, most modern music and products are produced by a group of people, rather than a singular individual.

Hip-hop is a genre of music that developed closely with modern improvements in technology. Hip-hop artists were quick to adopt new technologies using turntables and samplers, which made it cheaper and quicker to produce music.Sampling, the act of taking one sound recording and using it in another,is a fundamental aspect of hip-hop music. Reformingcopyright laws for the modern era is becoming increasingly crucialbecausemany musical genres ranging from rock to electronic dance music now employs sampling techniques.

Other forms of musical borrowing are widely accepted and allowed under copyright law. For example, musical allusions in the form of caricature, parody and pastiche are covered under fair use law and do not require permission or inflict royalties.

Under the compulsory license provisions of the Copyright Act, artists can create covers of songs without seeking consent from the rights holder [1]. A compulsory license is a type of mechanicallicense, which are granted for works not in the public domain that extends to musical covers that do not modify the main melody or lyrics. The royalty fee is eight cents per track or 1.55 cents per minute; whichever is greater [2].

The compulsory license provisions are in stark contrast with sound recording license fees in sampling practice. The cost to license a sample that is less than three seconds in duration is about $1,500, and up to to $5,000 if the sample is looped [2]. Licenses for sampling also have to be negotiated individually and will add a time constraint in addition to cost.

Copyright laws must adapt to current methods of musical composition. One solution is to apply the compulsory license approach to sound recording licenses. Under this approach, hip-hop artists can sample another artist’s recording without their consent, but will have to pay fees per track. License owners will still be compensated for their compositions but the overhead for hip-hop artists will be smaller.The original sound recording also receives exposure whenever it is sampled, which leads to a win-win situation for both parties.

The ultimate goal of reforming the United States Copyright Act is to foster creativity in the modern musical landscape. The current laws based on Romantic notions of authorship are overly cumbersome to artists who have to negotiate licensing terms on a case-by-case basis.Although adopting compulsory licensing practices is a good Band-Aid fix, it is still in the framework of an existing practice. In order to truly address the collaborative nature of current music, a more comprehensive approach needs to be adopted. A more comprehensive approach is a topic for future study.

REFERENCES

[1] O. B. Arewa, “J.C. Bach to Hip Hop: Musical Borrowing, Copyright and Cultural Context.”Case Legal Studies Research Paper No. 04-21; North Carolina Law Review, Vol. 84, p. 547, 2006. [Online]. Available: or

[2] J. Norek. "You Can't Sing without the Bling: The Toll of Excessive Sample License Fees on Creativity in Hip-Hop Music and the Need for a Compulsory Sound Recording Sample License System”. Entertainment Law Review, 11(1).uclalaw_elr

_27056, 2006.[Online]. Available: