The Sound of Money: Securing Copyright, Royalties, and Creative "Progress" in the Digital Music Revolution

I. INTRODUCTION II. U.S. COPYRIGHT LAW IN THE CONTEXT OF TECHNOLOGICAL AND MARKET CHANGE A. The Existing Legal Framework 1. Constitutional and Theoretical Foundations of Copyright 2. Strong Rights Granted to Composers and Recording Artists by Acts of Congress 3. Licensing Versus Assignment for Royalties and Creative Control Rights B. Revolution, Market Restructure, and Copyright Retention in the New Digital Music Industry 1. Self-Production 2. Self-Publishing and Self-Distribution 3. Self-Accounting and Royalty Collections C. Access, Diversification, and the Rise of Niche Genres D. Retention of Musical Work and Sound Recording Copyrights III. STRONG COPYRIGHT LAWS ARE IMPERATIVE FOR "PROGRESS" IN THE DIGITAL AGE A. Artist Empowerment Through Strong Copyrights 1. Greater Opportunities for Financial Rewards 2. More Discretion Over the Artistic Integrity of Works B. National Creative "Progress" Through Artist Empowerment C. Copyright Reforms in the New Digital Music Industry Are Unwarranted D. Enhancement of Transparency and Education IV. LET IT BE: A SOUND POLICY FOR "PROGRESS" I. INTRODUCTION As part of his technology and innovation platform, Barack Obama broadly pledged to "update and reform" copyright laws in ways that strike a balance between promoting the public good and treating copyright owners fairly. (1) Sweeping legal reforms are advocated by popular critics and leading copyright scholars alike. Recognizing market paradigm shifts in the ways we produce, distribute, publish, and consume music, this Note argues that little change, if any, is necessary to achieve that beautiful balance. Much of the animosity toward our existing copyright framework stems from the unpopular tactics of the record industry, which tried to enforce copyright laws to sustain an increasingly outmoded system. What those calling for reform fail to notice, however, is that the digital music revolution is ushering in a monumental shift in copyright proprietorship that redefines the whole game: for the first time in history, musical artists can keep their copyrights. Consequently, as intellectual property becomes a more essential part of our national economy and infringement becomes easier, (2) it is in the best interests of both artists and the public to maintain and enhance the existing "strong" copyright system. Compared to the costly production and distribution methods that characterized the age of tangible media (e.g., LPs, analog tapes, CDs, and DVDs), the advent of digitally compressed audio formats and online networks has opened superior channels for the proliferation of music. Wireless streams and downloads are now available anytime, anywhere, any way you want. This presents unlimited financial opportunities for copyright owners. Whether you buy that new single through the Rhapsody application on your BlackBerry, stream your personally tailored Pandora stations on your iPhone, hear the song synched to a video on YouTube, or download the entire album from Amazon.com to your desktop, copyright royalties will be raked in as you rock out. So who will get the money? The past decade witnessed mass civil revolt against the old-guard record industry as consumers--especially those turning to online file sharing--felt that the high prices they were paying for CDs were lining the pockets of industry executives instead of the musicians they loved. Up until the turn of the century, record labels and music publishers added unparalleled value to music production, distribution, and royalty collection. An artist longing for international exposure, therefore, had little choice but to sign away his or her statutorily vested copyrights, if so "lucky" as to land a record deal. By acquiring artists' copyrights through contractual assignment or "works made for hire," middlemen corporations thrived off of phonorecord sales and licensing royalties for decades. …