On Copyrights, Music, & Money

by Harvey Reid

Have you noticed lately how fashionable songwriting has become? Original music is much more hip right now than it was even a decade ago, and people who play cover songs are almost sneered at. For musical entertainment, we are increasingly being subjected to listening to songwriters performing their creations. This is a new phenomenon in the world of music; even a generation ago, popular singers like Sinatra, Bing Crosby, and Bessie Smith certainly did not sing only their own songs-- in fact, songwriters were rare then on the pop charts before 1960. Think of all the singers who did not write songs: Nat King Cole, Louis Armstrong, Patsy Cline, Tony Bennett, Dean Martin, Ray Charles, Peggy Lee, Judy Garland, Ella Fitzgerald; the list is endless. What changed? What caused this? Money, most likely. What else? Is it a good thing? Probably not. I think it all has to do with ownership of copyrights and big business.

George Washington signed into law the first American copyright and patent laws, which established the period of 17 years for a patent and 28 years for a copyright, after which the works would fall into the public domain. Since 1800, they were both changed somewhat to allow a renewal, which for patents meant a total of 34 years, 56 for copyrights. Even Xerox corporation was unable to prevent its 1947's photocopy patent from expiring in the 1971. The Copyright Act of 1976 made some big changes in the previous (1909) law, and enabled copyrights now to be in effect for 50 years after the death of the last-surviving author, and for a special renewal term of 47 years for works (rather than the 28 year period allowed before) that were under copyright before 1978. Copyright was also modified to go into effect at the moment of creation, and registration of the copyright, though recommended, is no longer a requirement to prove ownership. The recording industry didn't really get going until the late 1920's, so this means that virtually all of the music that has ever been recorded is still copyrighted. Not much music in our lifetimes has ever fallen into the public domain. Scott Joplin's music is the only significant example I can think of.

What all this means is that copyrights are easy to get, cheap ($20), and can earn money for their owners for a long time; as compared to patents, which are hard to get, expensive to obtain and defend (requires a lawyer and usually several thousands of $), and which expire quickly. A look at the legal history of the two finds many stories of people who were unable to defend their patents, usually for financial reasons, and many cases of tolerated infringement. Copyright law seems to have sharper teeth, and anyone with a valid registered copyright can bring General Motors lawyers to their knees. And when you look at the way the music business doles out its money, you will see that owners of copyright get the largest and most reliable chunks of the pie. When a record is cut, the royalty, or mechanical as it is called (getting close to 6¢) must be paid to the owner of copyright for each copy that is manufactured. This, incidentally, is why major label albums only have 10 songs, and no medleys, to keep the costs around 50¢ per record. The artist royalty, which is part of the record contract, will be far smaller than that, and is only paid on new copies that are sold. ASCAP and BMI, the mysterious licensing agencies, only pay the owners of copyright for radio and TV airplay. So when you listen to the golden oldies station pumping out the hits of yesterday, only the owner of copyright is collecting money- not the artist or the record company. If a song becomes part of the voice of a generation, the amount of royalty airplay money it can generate is substantial. An all-pervasive hit song can literally provide hundreds of thousands of dollars a year for life for its owner, while the artist who performed it might be driving a taxi. A lot of those mansions in Bel Air are paid for with ASCAP checks.

Once you have been around in the music business for a while, you learn that owning of copyrights is the oil well and the gold mine. Owners also have the sometimes extremely lucrative option of licensing the song to movies and TV commerials, which make more money and even increase record sales and airplay, which make more money. The Rolling Stone Magazine "Where Are They Now" articles are full of tales of woe of the artists whose performances no doubt made many of those songs popular, but who are sitting back and watching other people make a fortune from them. The record company owner who controls the entire Creedence Clearwater catalog, (they are among the best-selling artists of all time, world-wide) reputedly has collected close to $500 million! Entertainment is becoming one of the United States largest exports. We cannot bring ourselves to punish China for torturing its political dissidents and killing its own people in Tianemen Square, but a serious trade war just heated up over the issue of ownership of musical copyright. That should give you a clue how much money is at stake.

If the ownership of the copyright (or publishing) is the oil well, then young artists who write songs and who are eager to become famous are the acres of Texas land the oil companies snap up in the land rush. Record companies generally are far more likely to sign artists who write songs. Big record deals do not often go to skilled musicians, or those who play traditional music, simply because part of most "standard" record contracts involved transfer of the "publishing" (half of the royalty money; the remaining half is known as the writer's share) to the record company. This is a big part of the payoff for a big record company. If a major label artist sang one of your songs, the record company would have to pay you full mechanical rate; however, most record contracts to songwriters only pay 75% of statutory rate-- they just routinely screw an artist/songwriter out of 25% of the royalty supposedly set by the RIAA. (They also have all sorts of clauses to reduce the amount of artist royalties they pay because of book club deals, foreign sales, sales to military bases, etc. etc.) If you look at the popular hit-making singers who are among the few who don't write songs, you'll find a frenzy of activity behind the scenes to determine whose songs they cut. If you own a song on a million-selling record, you will collect over $50,000 just in pressing mechanicals, and if the song becomes a hit, possibly hundreds of thousands more from airplay. If you had written one of the songs on Thriller, you would have collected almost $1.5 million just in mechanicals.

The orchestra and the piano dominated certain periods in musical history; we are now in the Era Of The Copyright Owner. It began in the post-war record industry boom. Elvis Presley was one of the first artists whose name started showing up on the copyrights; reputedly he did not write them, but obtained ownership or part ownership as a pre-requisite to recording the song. When rock records in the 60's started to sell in truly gigantic numbers, people figured out that they would make a lot more money playing their own music, and that is when the original artist thing really got rolling.

In the 1950's, there was a brief interest in folk and public domain music, (which may well have been some record companies' idea of a good way to avoid paying mechanicals to songwriters), but many of the record companies got burned badly when they found out that many things that were assumed to be public domain were not. Tom Dooley was a #1 hit for the Kingston Trio, and the record company lost an expensive lawsuit because the family of banjo player Frank Profitt had a claim to the copyright. Dueling Banjos was also very costly to the record company and the Deliverance movie company, since the supposedly traditional tune was owned by someone. A large body of American traditional music was copyrighted by some savvy people in the early days of country music, and so much of what should be in the public domain is not. Add this to the fact that BMI pays 20% as much and ASCAP 10% as much in airplay royalties to owners of arrangements of public domain works as it does to owners of original works, and you begin to see why major labels do not bother with folk music anymore. (Unless it is from some place like Africa, where the copyrights on traditional music have not been registered, and are thus a fresh source of money for modern copyright carpetbaggers) If you go on network TV and sing a folk song instead of your own composition, you essentially throw away thousands of dollars of royalty money.

What society ends up with is an entertainment world with an over-emphasis on original music. Because the people who are in positions of power in the top-heavy music industry very often make huge sums of money by owning copyrights, they have succeeded in created a world where non-original music is getting uncool. And we have to listen to a lot of songs that should never have been written. Wouldn't it be a better world musically if people could just sing songs they liked? Spending years practicing and studying to become a brilliant player often just leads you to a job in the backup band; the guy who can barely play the guitar gets all the money and attention because he writes the songs. If you are a bass player you can get extra pissed off-- only the authors of the words and melody get royalty money. The rhythm section who invented the groove get nothing, even though their parts might have been crucial to the song or to its becoming a hit. When members of a band find out the singer/guitarist is making 5 times as much royalty money as they are, many problems arise. (This was a big problem in the band Nirvana recently, for example.) What is happening is that the centuries-long tradition of entertainment coming from skilled musicians who play good songs is being subverted, and it is cheating audiences, and instead giving them less skilled musicians performing their own songs.

A grasp of the relationships between music, copyrights and money will help you understand much about the entertainment industry in general. These relationships do not appear likely to change soon, so get used to them. And heaven help you if you play or like traditional music, because it is totally getting lost in the maelstrom. It is simply financially irrelevant. So are skills, for that matter. Why bother learn to play guitar? It's hard. And financially irrelevant. Just write songs. Everybody else does. Some people are cashing in big time. Why not you and me? And carrying around your guitar is much cooler than just buying a lottery ticket, though they are financially similar. It looks to everyone like you are being an artist and expressing yourself, while at the same time you are wisely opening yourself to the possibility that you might some day receive large quarterly royalty checks without ever having to do anything except stay alive. How American. Speaking of American, it's very funny that our own national anthem is such a hard song to sing. I wonder how many pop-chart songwriters (or singers) could even get through it. Or how many could figure out the chords on their guitar, for that matter. (Although it does make me wonder if Jimi Hendrix or his heirs registered an arrangement of public domain work with the copyright office and/or receive royalties for the version he did at Woodstock.) There are some among us who do appreciate skill foremost in our musicians. Too bad so many of the skilled players appear to make more money selling instructional videos than they do playing music. As long as they don't put copyrighted music in their instructional videos or books. Their publisher will no doubt ask them to only use public domain or original material.

Harvey Reid has been a full-time acoustic guitar player, songwriter, traditional musician, and free-lance minstrel since 1974. He has recently released his 11th solo recording on Woodpecker Records. He lives on the coast of Southern Maine, though he did live in his car for over 5 years, which made him philosophical.