For decades hip hop producers have relied on the innovative use of existing recordings (most of which are protected by copyright), to create completely new works. Specifically, cuttin’ and scratchin’, digital sampling, looping and (most recently) mashing are all methods of creating music and are all integral parts of the hip hop music aesthetic. Collectively these creative processes are the hallmark of the type of innovation and creativity born out of the hip hop music tradition.
Hip hop artists and producers from Chuck D, Queen Latifah, A Tribe Called Quest and M.C. Lyte to The RZA, Missy Elliott, Dangermouse and Jay Z have employed the sampler more as a musical instrument or palette than a tool of expediency or theft. But when done without the permission of the borrowed work’s copyright holder, sampling is at odds with copyright law. Unfortunately, copyright fails to acknowledge the historical role, informal norms and value of borrowing, cumulative creation and citation in music.
Additionally, different copyright infringement standards are applied to the two types of music copyright (the musical composition and sound recording). Further, and arguably more troubling, different infringement standards are being applied by the circuits to sound recording infringement cases resulting in a split in the circuits. The per se infringement rule articulated in the leading digital sampling case, Bridgeport v. Dimension Films, as compared to a recent decision with analogous facts but an opposite outcome under a traditional infringement analysis in Saregama India Ltd. v.Mosley, is but one stark example.
This article examines the impact of copyright law on music creation both historically and currently. It highlights hip hop music as an example of a genre significantly and negatively impacted by 1) the per se infringement rule applied in some instances to cases involving unauthorized sampling of sound recordings; and 2) traditional (and arguably erroneous) assumptions in copyright law and policy of independent creation and Romantic authorship.
In previous posts, I have focused mostly on literary creations in the publishing industry (books, articles, magazines, and so forth). But copyright in a song (whether lyrics, music, or both) is created in the same way as in any other literary or artistic work. And music copyright is made up of the same bundle of rights, which includes the right to publish.
What Music Publishing Is All About
Although the Internet has in some cases removed the “middleman” from the music publishing equation in some sense (and of course there’s Platinum Hit), traditionally only those who were well-known songwriters could go it alone without the assistance of a music publisher. The reason is because it is a challenge for an emerging or undiscovered songwriters to commercially exploit her music on a significant scale without the help of a music publisher, one who licenses your songs to others for flat fees or royalties so that your songs get recorded or played or synchronized in TV and film and so forth. Performance royalties are all right, but music publishing, if properly managed, is really where the money is in the music industry.
Music publishing can be big business. It is also confusing to many songwriters who tend to focus on the creative aspects of writing rather than the business and legal sides. Essentially, there are two potential income streams involved in songwriting: first is the songwriter’s share as the creator and copyright owner, and second is the publisher’s share for the person or company that actually enables the song to be released to the public (i.e., to be published). This has been explained in the past as the two “pies,” where the total percentage of income is 200 percent (each of the pies equaling 100 percent).
This explanation is somewhat outdated and only adds to confusion. Others explain the writer’s share as 50 percent of the revenues and the publisher’s share as the other 50 percent.
Regardless of how you slice it (pun intended), in general, songwriters transfer some percentage (or all) of the copyright to the publisher, and keep the entire songwriter’s share of income and none (or very little) of the publisher’s share. The percentage of copyright transfers affects the way money is split between you and the publisher. [sample publishing agreement]
If you do a co-publishing deal in which you (or the publishing company that you form) team up with an established publisher, then you will most likely transfer 50 percent of the copyright to the publisher, keep the entire writer’s share of revenues, and split the publisher’s share of revenues fifty-fifty. [sample co-pub agreement]
Or you may be in a strong negotiating position and opt for an administration deal, in which case you will control copyright and keep all of the songwriter’s share, all (or most) of the publisher’s share, and simply pay to the company an administrative fee for handling the business of exploiting and managing your copyrights.