COPYRIGHTS IN THE MUSIC INDUSTRY

MASTER THESIS

COPYRIGHTS IN THE MUSIC INDUSTRY:

An Inquest into the Background and Importance of Copyrights in Music, Copyright Laws and Copyright Infringement Case Studies

A Dissertation Presented in Partial Fulfilment of a Masters Degree in…………………

PRESENTED BY:

SUPERVISED BY:

EXECUTIVE SUMMARY

The findings of this study confirm that copyright protection has been significant in the development of the music industry. For instance, in the discussion of the historical background and perspectives of music copyright it can be seen that modern music copyright has undergone tremendous changes since inception. Moreover, an evaluation of the importance of music copyright confirms that without the music copyright music industry would not be in existence since the stakeholders such as artists, songwriters, musicians, music publishers and record companies would not have returns for the investments they have made in terms of time and money. It has also been seen that there are various creations that qualify for copyright protection as well as different forms of copyright ownerships.

Furthermore, the five cases of music copyright infringement discussed in this study clearly shows that copyright infringement is a diverse and complex issue which requires a sober approach in order to ensure key issues are addressed. It is also essential to note that music copyright has been facing significant challenges from inappropriate use of internet and new technologies to facilitated music copyright infringement. Moreover, it is important to note that the four hypotheses proposed at the beginning of this study have been all confirmed.

CHAPTER1: INTRODUCTION

Nowadays, we are in the periods of the greatest growth in creative expressions through art. Key to this growth are the tremendous technological advancements experienced over the last two to three decades that have made it easy as well as cheap the process of production and distribution of creative works globally (Bernstein, 1998). However, creative expression mostly through music and literary works is not new with mankind and civilization experienced an explosion of these creative expressions after the invention of the printing press in the eighteenth century while continued development of the print publishing industry in conjunction with other technological advancements have contribute to further growth of creative expressions to their current status. However, a more intense explosion in creativity and means of creativity products’ distribution was experienced towards the end of the twentieth century due to widespread use of the Internet and further advancements in digital technology (Lehmann, 2005). Moreover, despite the opportunities presented by these technological advancements, there are also imminent challenges as well. For instance, these new technologies have eased the practice of copying and distribution of creative works. In addition, it has nowadays become much easier to infringe copyrights at the expense of creative works creators and owners as a result of these new technologies. In particular, music has been one of the creative works that have been subject to immense copyright infringement after the emergence of Internet coupled with continued technological advancements (Liebowitz, 2004). This has been attributed to the ease at which people can access copyrighted creative works online, download, copy and distribute them resulting to copyright infringement. This has led to a drastic increase in the numbers of copyright infringement lawsuits.

Copyright laws have always led to tensions between two significant groups of people with interests that compete. On one hand, the general public envisages easily accessible creative works for the benefit of the society. On the other hand, artists, authors and publishers of those creative works who invest their resources in the generation, marketing and distribution of these creative works in terms of money and time should be handsomely compensated for their efforts (Lehmann, 2005). However, the foundation of many nations is entrenched on the principles of liberty and justice where the former suggests that creative works should be freely accessed by the people while sometimes the latter imposes some extent of limitations on liberty. This implies that irrespective of the fact that the principle of justice suggests that there should be readily accessible creative works for the benefit of the society; it isn’t fair for creative works created by some members of the society to be accessed by others without payment or permission (MacQueen, Waelde and Graeme, 2007). Therefore, copyright laws aimed at protecting creative works artists and authors across the world attempts towards striking a crucial balance between the principles of liberty and the principles of justice which in this case are competing through provision of the compensation rights to authors and artists of creative works thereby encouraging them to create more new creative works that are then availed to the public (MacQueen, Waelde and Graeme, 2007).

Despite our realisation or not, out daily lives are virtually affected in one way or the other by copyright laws. For instance, it is not possible for a day to pass without turning on the television; listening to an MP3 or a CD; reading a book, magazine or newspaper; surfing the web; watching a movie; or running software on a computer. Since these are things we do on daily basis; then often access materials that are copyrighted (Lehmann, 2005). Hence there no need to take for granted the availability of all of these materials since if it were not for protection by copyright laws they would not be available because their creators and publishers would not be benefiting from their efforts. Thus, copyright laws and the ownership of intellectual property constitute a crucial part of economies and are of significant necessity to creative works authors and producers where music is the most significant of all. This implies that most of entertainment industry businesses are founded on the basis of ownership of intellectual property and copyrighted works use (Bernstein, 1998).

Furthermore, while there was existence of music long before copyright and its existence would also continue without copyright, the music industry would not be in existence without copyright. This is attributable to the fact that sounds recordings and songs, the main music industry assets are forms of property that are copyright protected (Liebowitz, 2005). Thus, without copyright protection, there could not be ownership and profitability to songwriters or artists and music publishers or record companies from songs or sound recordings respectively. This would have discouraged them leading to the collapse of the music industry as a whole (Bernstein, 1998). However, copyright protection has contributed to the continued growth of the music industry despite the uncountable incidences of copyright infringement that divert a considerable amount of finances since by the end of the day the ownership and benefits of songs and sound recordings cannot be take away from songwriters, artists, music publishers, and record companies (Varian, 2004).

This dissertation explores various aspects of music copyright which have been explicitly discussed. It begins by general introduction of the copyright phenomenon involving different issues regarding to copyright laws and copyright infringement. The introduction chapter also presents the aim and objectives of the dissertation as well as the problem statement and justification. The second chapter discusses the history and development of copyright where pre-copyright era, history of copyright in UK and US as well as international development of copyright has been discussed. The third chapter discusses diverse issues and characteristics of copyrightable materials such as originality, expression and fixation. Moreover, various components of copyrightable music such as lyrics, harmony, melody and rhythm have also been discussed. The fourth chapter discusses different types of copyright ownership. The fifth chapter discusses the methodology adopted in conducting the research in this dissertation. Furthermore, the sixth chapter discusses various case studies that are associated to various concepts and principles discussed in the dissertation. The analysis and discussion of the chosen case studies is also provided in this chapter. Finally, the seventh chapter of this dissertation provides a conclusion and recommendations. This structure is aimed at ensuring that the dissertation achieves the set aim, objectives, research questions and hypotheses.

Study Aim and Objectives

Aim

The aim of this study is to discuss the music copyright basics, laws and infringement cases in order to determine whether protection of music industry stakeholders has been achieved.

Objectives

This study had three main objectives to achieve such as: to discuss historical background and perspectives as well as basics of music copyright in order to that they contribute to the modern copyright laws; to evaluate current music copyright laws and copyright infringement cases in UK and US in order to determine how copyright laws have been applied to resolve the cases; and the last objective is to determine whether protection of music industry stakeholders has been achieved through music copyright since it is generally believed copyright laws have led to improved protection.

Research Questions

Has the historical background and perspectives of music copyright contributed to modern music copyright?
What are the current music copyright laws in UK and US?
What are the landmark music copyright infringement cases in UK and US and how was copyright laws applied to resolve them?
Is there any substantial protection of music industry stakeholders that has been achieved through music copyright?

Study Hypotheses

The historical background and perspectives of music copyright has significantly contributed to the modern music copyright.
The current music copyright laws in UK and US are diverse and effective.
There have been numerous landmark music copyright infringement cases in UK and US.
Substantial protection of music industry stakeholders has been achieved through music copyright.

Problem Statement and Study Justification

Nowadays the significance of music copyright has been heightened because of the tremendously increasing cases of music piracy or music copyright infringement incidences through illegal copying, distribution, sale and performing of copyrighted music (Lehmann, 2005). Artists and songwriters as well as the music industry as a whole have continued to suffer as a result of music copyright infringement incidences, most of which go unnoticed as a result of music use without paying royalties or obtaining their permission from the artists. Moreover, a number of the music copyright infringement cases are perpetuated by people who are unaware that they are engaged in an illegality; especially when someone borrows a copyrighted CD from a friend to copy which constitutes a music copyright infringement, but still very common.

Therefore, it can be stated that copyright infringement is increasingly becoming a challenge to the music industry as a whole; hence the need to conduct studies on this topic in order to make appropriate recommendations on how to address this menace has also become inevitable. This justifies this study which seeks to check for measures that can be recommended to counter music copyright infringement in order to abate music piracy. Furthermore, since the other problem noted when it comes to music copyright infringement is the overall lack of awareness, this study is thus justified since it aims to create awareness concerning the significance of music copyright in protecting the rights of artists and other music industry stakeholders. This is essential in facilitating the development of the music industry as a whole and cannot be underestimated. Moreover, since copyrights have been there for quite some time, the problem is that why have thy not yet managed to fully protect artists and their works? In order to evaluate the stated problem, this study seeks to evaluate the protection given to artists by music copyright laws through analysis and discussion of some copyright infringement cases and how they were resolved.

CHAPTER 2: HISTORICAL BACKGROUND OF COPYRIGHTS IN MUSIC

Introduction

Copyrights in music have undergone various changes in order to attain their current status. However, initially music copyrights changes were characterised with redundancy, but after invention of printing and digital technology, the need to protect works of authors and artists became imminent making copyright protection inevitable.

The World before Copyright

Before the invention of printing press in the fifteenth century, copyright was not important because it was not possible to easily reproduce works done by other people. Thus, before the fifteenth century, a significant number of creators were considered as craftsmen working toward product creation. This is mainly because fixing creative works into physical forms involved a cumbersome process. For instance, at the onset of the first millennium, a book trade was developed in the Roman Empire through a very tedious process (Rimmer, 2007). Due to the cumbersome involved in the process of fixing creative works in physical forms during early times, many artists used to communicate their creative works orally through reading or performing their works at public gatherings (Bernstein, 1998). Hence during this period the need for copyright was not that important. Therefore, since there were no copyright laws for the protection of creative works during this period, Greek states used to rely on the sponsorship of the government on artistic creations instead of any form of commercialization and private ownership of artistic creations. However, even at these pre-copyright times, some idea about the right of an author to control how their creations had to be used. This implies, despite the fact that copyright laws did not yet exist; there were indications for recognition of the need to protect authors’ creative works that would then be treated as some form of property.

Copyright’s English Origins

Due to book publishers competition after the printing press was introduced in England, there was increased concern by the English Crown concerning the possibility to publish books that would advocate political dissent and religious heresy. Thus, in 1534, measures were taken by the Crown towards preventing such dissent by passing a law referred to as the Licensing Act, which imposed a requirement for anyone interested in publishing written works to obtain a license first. The Licensing Act monopolised publishing by a group of English printers and Stationers’ Company booksellers (Mehta, 2009).

In 1557, Licensing Act was revised and passed and it required registration of all books with the Stationers’ Company, which kept a record the “copy-right” owners (i.e., the right for printing copies of the original work). As a result Stationers’ Company was effectively given the authority for monopoly on printing by the Licensing Act (Mehta, 2009). Furthermore, the Stationers’ Company had the authority for searching out, seizing, and destroying any works deemed to be offensive, thus it operated as a government mechanism to control printed works. This implies that this precursor to copyright eventually turned out to be a means of censorship instead of protection authors (Bernstein, 1998).

Copyright in the United States

In the U.S’s early history, many areas of copyright laws were basically founded on the basis of the British law. Hence before the United States was founded, most of the colonies in America enacted copyright laws using British law as a blueprint. However, even political independence of U.S’s had been established from England, the leaders of the new nation continued to heavily rely on British law as the model for its legal system. Thus, the first copyright law in U.S. was in most areas very similar to England’s Statute of Anne. Hence copyright law development in the UK evolved in a very similar way to that of England (Bernstein, 1998). However, there were campaigns by several authors for copyright protection in the United States’ colonial states, including Noah Webster and Thomas Paine. Moreover, Connecticut State was the first state to pass a copyright statute in 1783 and by 1786; similar copyright laws had been passed by 12 out of the 13 colonial states (Liebowitz, 2004).

International Developments

The copyright we have nowadays has undergone tremendous shaping where during the nineteenth century, there general refusal by the U.S. for extension of any copyright protection to foreign works, this led to free piracy on English books by many American book publishers (Rimmer, 2007). Similarly, there was also rampant piracy on French book publishing industry in Belgium up to a point where the French government issued a threat on trade reprisals. Eventually, a treaty was entered by France and Belgium into in order to provide copyright protection of works from each other (Bernstein, 1998). This led to other treaties between countries between various nations in Europe, a move which resulted in a network of laws that provided copyright protection for works by authors among nations.

With increased market for copyrighted works internationally, there was tremendously reducing sense of bilateral treaties signed between individual countries. Instead, there was a beginning of the realisation by many countries that some type of uniform body to bring together as many countries as possible together in attempts of promoting copyright protection. After years of negotiations and deliberations, the Berne Convention was formed by a small group of countries in 1886 (Liebowitz, 2005). Under this Convention, there was agreement by each member country to works by foreign authors same degree of copyright protection as provided for domestic works by the law. Over the next century, there was gradual joining of more countries into the Berne Convention, but the U.S. had totally resisted joining the Berne Convention until 1989. Nowadays, various mechanisms exist that ensure copyright protection is assured to all authors irrespective of origin at international levels.

CHAPTER 3: CREATIONS THAT CAN BE PROTECTED BY COPYRIGHT

Introduction

There are many different creations types that are capable of copyright protection. This is partly attributable to the fact that copyright laws in many countries have settled for a broad definition of authorship, in recognition of the fact that new ways are constantly developed by authors to express their ideas, views or opinions (Liebowitz, 2004). Generally, all forms of musical, visual, literary, and other artistic works are capable of copyright protection if they meet the copyright protection requirements in particular countries. However, works that are copyrightable include, among others books, scripts, computer programs, speeches, magazines, newspapers, personal and business correspondence, musical compositions (without or with lyrics), motion pictures, product packaging, sound recordings, videos, drawings, photographs, paintings, and sculpture (MacQueen, Waelde and Graeme, 2007).

Requirements for Copyright

In order for a creation to be capable of copyright protection it must meet three basic requirements such as: originality, expression, and fixation.

Originality

Originality is usually the first and most important requirement for a creation to be copyrightable. This requires that the creation be original. However, despite that fact that this requirement may seem straightforward, it is an often source of confusion. This is mainly because very little is creations are usually totally original since virtually all creativity works draw ideas from elements that are already existing (Bernstein, 1998). For example, music composers undertake a selection and arrangement of musical rhythms and notes that have been in existence for centuries while the words used by literary authors have also been in existence since immemorial (Liebowitz, 2005). Therefore, originality does not mean that creators of creative works have create everything on their own, but they can borrow from elements that are already existing in a way that portrays originality through an overall rearrangement of the elements to suit the intended purpose.

Expression

Original expression of the author’s ideas is a very crucial requirement for a creative work to be copyrightable rather than mere presentation of ideas irrespective of whether they are totally original. This is due to the fact that all songs are made up of rhythms, chords, and notes that exist apart from the actual work by the author and that have in use for many years. Also words and ideas used to write books that have been in existence apart from and predating the book. However, a distinction exists between ideas and how such ideas are expressed in alignment with the copyright law (Bernstein, 1998). One of the criticisms that are most common about copyright is perpetuated on the basis of the misconception that copyrighting allows ownership and monopolisation of the use of ideas. However, in actual sense it is not possible to protect ideas by copyright, but an author’s original way of ideas expression may be protected by copyright (Lawrence, 2004). This means that if an idea is expressed by an author in an original manner followed by subsequent fixation of that expression in a form that is tangible, then the expression by this author will be capable of copyright protection.

Fixation

Fixation is the third requirement to copyright protection where the creative work must be fixed in a form that is tangible. At first glance, this may seem odd considering that only intangible property is the one protected by copyright, while copyright protection requires creative works to be fixed in a form that is tangible (Liebowitz, 2004). However, upon keen consideration, this concept becomes clear. For example, a song is intangible, but for it to be capable of copyright protection it must be produced in a tangible form such as sheet music or recording. This makes the reasoning behind this requirement practically simple, since if a work that is intangible was not availed in a tangible form, proving its existence would be very difficult.

Categories of Copyrightable Works

There are various categories of copyrightable works including: literary works, dramatic works, musical works, sound recordings, pantomimes and choreographic works, motion pictures and other audiovisual works, pictorial, graphic, and sculptural works as well as architectural works (Liebowitz, 2005). However, this study will only focus on musical works since it is the selected category of creative works.

Musical Works

Musical works together with all accompanying words or lyrics are capable of copyright protection it they meet the requirements discussed above such as originality, expression, and fixation in a tangible form. Generally, musical works consist of a combination of rhythm, harmony, and melody, irrespective of the material object of its embodiment. However, musical works include songs that consist of lyrics and music as well as instrumental compositions alone (MacQueen, Waelde and Graeme, 2007).

The Originality and Expression Requirements for Musical Works

Various elements usually comprise musical compositions and they generally include melody, lyrics, harmony, and rhythm. However, not all musical compositions will contain all of these elements, and there will be variance in the extent of expression and originality present in any of the used elements from one musical composition to another (Lawrence, 2004).

Lyrics

Both lyrics and music are sometimes contained in some musical compositions. However, independent writing of music words without any intention of creating music at the moment, such kind of work is regarded as a literary work. However, a creation in combination with music, then the words becomes part of a musical work constituting to lyrics. Lyrics are capable of copyright protection as long as original expression is contained in them. However, individual notes or words are not subject to copyright protection, this also prevents copyright ownership to simple and short phrases (Bernstein, 1998).

Melody

A melody is a pleasing arrangement or succession of sounds or single notes that are rhythmically organized in a sequence in a way such that each note is related to the other in order to make up a particular idea or phrase. Melody in its simplest form consists of the duration of these notes, the musical notes, and the arrangement or order of notes. However, melody is the most recognisable element for most musical compositions, and originality is a requirement for a melody to be copyrightable, but the melodic composition components are very limited (Einhorn and Rosenblatt, 2005).

Harmony

Harmony is the other originality and expression requirement for musical compositions and it is defined as the progression, structure, as well as relation of chords. However, progression of the chord that makes up a harmony is defined as a structure based on the melody (Mehta, 2009). Therefore, since the melody generally dictates the harmony, on its own, the originality of harmony will rarely be sufficient original for copyright protection. However, despite the fact that harmony by itself will rarely be copyright protected, it can sometimes play a crucial role in facilitating musical composition copyrightability as a whole.

Rhythm

Rhythm is the other basic element of musical composition that constitutes to musical works originality and expression and it is defined as a regular pattern that a series of notes form in differing stress and duration. In simple terms, rhythm is the beat followed by a musical composition. Most of the rhythms in popular musical compositions are usually steady and unvarying. Moreover, as it is the case with harmony, rhythm alone is most cases not sufficient in originality to make it capable of copyrightability (Lawrence, 2004).

CHAPTER 4: OWNERSHIP OF COPYRIGHT

Introduction

Copyright ownership is in many ways similar to ownership of other types of property, even though some differences do exist. Copyright ownership has a similarity with other types of property ownership because it can be owned by more one person and is also transferrable from one owner to another (Einhorn and Rosenblatt, 2005). Also a copyright can sold just like any other type of property can be sold. However, a major difference exists since when a copyrighted work is sold by the author or artist, a contractual right is retained by the author or artist to receive income generated from uses of the work. Therefore, in many situations, for generation of considerable income from copyrighted works, many artists and authors usually transfer the copyrights to producers or publishers for commercial exploitation of the work. However, considering that copyright is intangible property, stringent rules exist that regulate the transfer of copyrights whose adherence is inevitable (Liebowitz, 2005). As a result of these situations, various copyright ownerships exist and are subject of discussion in this chapter. They include:

Initial Ownership

The ownership of a copyright arises from and begins after an artist or author creates a work. Often, there is confusion by many people between copyright registration and copyright ownership and assume that in for a creative work to be copyrighted one should apply for or register the creative work (Depoorter and Parisis, 2001). This is not true since any creative work automatically protected by copyright since the moment of creation, as long as it satisfies copyright requirements. However, even though copyright registration provides other important benefits to the owner of a copyright, copyright registration is not a condition to ownership of such copyright (McLeod, 2005).

Joint Ownership

Since long ago, more than one person have been collaborating to create a creative work which means they all claim ownership to the copyright of that work because of their individual contributions. Thus joint copyright ownership results from more than one company or person who shares copyrights ownership. For instance, it is a matter of fact that, copyrights most published songs are rarely owned by a single entity or individual in entirety (McLeod, 2005). The main reason which attribute to this is that, in most cases songwriters collaborate in the process of creating songs (Liebowitz, 2004). For instance, if a band of consisting of five artists composes a song with each member of the band contributing to the song’s authorship, the copyright to such song is usually split among all the five members of the band who co-authored that song. Further split of the copyright may occur if the copyright ownership is transferred to a music publisher by the song authors (Oberholzer and Strumpf, 2004).

Works Made for Hire

There are situations where a person who has created a work is not considered as the author, hence not entitle to the initial copyright ownership of that work. Such situations occur when creation of a work by an entity or a person is done on behalf of another (Mehta, 2009). This implies that works made for hire is an exception to the copyright ownership general rule which vests initial copyright ownership to the work’s creator. In this case, the party or person on whose behalf the creation of a work is done is regarded as the author and claims initial copyright ownership (Liebowitz, 2005).

Transfer of Copyright Ownership

Copyright ownership is transferrable just like most types of property. However, a transfer of copyright includes: exclusive license, an assignment, mortgage, or any other alienation, conveyance, or hypothecation of a copyright, but a nonexclusive license is not included. This implies that a contractual right is retained by the author or artist to receive income generated from uses of the work (Lawrence, 2004).

However, transfers of copyright ownership can be terminated due to the unique nature of copyrights since the law provides the copyrighted works authors with the right for terminating certain copyright transfers. This means that an author has the right to take back a copyright ownership that had been previously transferred. This may sound strange, but it is entrenched on the fact that compared to other types of property, copyrights are in some ways very different (Depoorter and Parisis, 2001). The rationale behind this is to ensure that authors are protection from copyright ownership transfer deals that turn out to be bad deals directly affecting the author. In case of this occurrence, the author has the right to terminate the copyright ownership transfer (McLeod, 2005).

Orphan Copyrights

sometimes it can be very difficult or even not possible to undertake the process of determining if a work is currently under copyright protection or, on the assumption that a work is still copyright protected, who the copyright owner (Lawrence, 2004). For instance, there are circumstances where a person might not be aware of his or her copyright ownership, especially when such ownership was acquired through unaware inheritance. In other situations, a company may have gone out of business which claimed a copyright ownership and the considerable time has lapsed making it difficult or impossible to determine the person or entity to which the transfer of the copyright ownership was done (Depoorter and Parisis, 2001). These works for which it is difficult or impossible to locate or contact the copyright owner are referred to as “orphan works,” and can be used without paying the author or obtaining permission from the author. However, the need to amend provisions allowing has in the recent past become imminent in order to ensure the issue of orphan works is appropriately addressed by copyright laws (McLeod, 2005).

CHAPTER 5: METHODOLOGY

Introduction

This chapter outlines the research methods used to carry out this study. The research design adopted is also discussed in this chapter in addition to sources of information used. Moreover, a discussion of the research model used has been done in this chapter in order to ensure that all aspects of the study are succinct and clear.

Research design

This study adopted a case study research design, particularly the descriptive and exploratory research designs that sought to find out and describe the phenomenon of music copyright from the perspective of a real world context through a careful examination of the scenario. Thus, the case study research design adopted was both descriptive and explorative to enable succinct description and evaluation of music copyright scenario (Yin, 1993). Case study research design allowed description, evaluation and discussion of complex issues concerning various aspects of the research topic by through a review of past studies’ reports and online databases. Thus, it can be regarded a robust method of research especially when an in-depth and holistic investigation is required as in this study. The other importance of a case study research design either descriptive or exploratory is that it allows inclusion of qualitative data as shown in this study, and thus it is a very helpful research design to explain a phenomenon’s processes and outcomes through complete observation and evaluation of the case study aspects (Feagin, Orum and Sjoberg, 1991).

This implies that a combination of these case studies in this study was essential to ensure that sufficient information concerning music copyright was collected followed by sufficient description and evaluation through descriptive and exploratory case study respectively in order to establish a succinct understanding of the music copyright phenomenon (Yin, 1993). This is mainly because these research designs enabled an empirical inquiry to investigate the contemporary phenomenon of music copyright, particularly in UK and US. Moreover, these research designs enabled collection of qualitative secondary data that was also explorative and descriptive in nature to facilitate description and critical evaluation of the collected data regarding various aspects of music copyright. This was essential to ensure that the objectives of the study were achieved (Yin, 1993). This means that the use of both the exploratory and descriptive research designs in this case study was appropriate to ensure accurate and succinct descriptions and evaluations of various aspects of music copyright phenomenon in the contemporary world were carried out (Feagin, Orum and Sjoberg, 1991). Furthermore, a combination of these research designs facilitated a discussion of the historical background and perspectives of music copyright phenomenon as well as an evaluation of music copyright laws and music copyright infringement cases in UK and US. Additionally, an evaluation of the extent of protection provided to music industry stakeholders by music copyright laws has also been enabled by this appropriate combination of case study research designs (Hamel, Dufour and Fortin, 1993).

The case study model

In order to facilitate successful completion of this case study the traditional approach model of the case study research design was adopted to enable a succinct understanding of the music copyright phenomenon through a systematic method of collecting empirical data. This model was adopted to ensure more emphasis was directed towards making sure that the research evidence gathered from various secondary sources was accurate and unbiased (Yin, 1994). Therefore, this resulted to a considerable part of the case study report being spent in providing descriptions, evaluations and justifications of the specific methodological decisions made as well as providing elaborations on detailed findings of the case study (Hosenfeld, 1984). This model involved a process of rigorous collection of evidence as well as accurate observation of the gathered information. However, this model consists of various variants which include: illustrative/descriptive case study, exploratory case study and explanatory case study. In this study two of these variants such as illustrative/descriptive case study and exploratory case study were used (Yin, 1993). For instance, the illustrative/descriptive case study was used to provide a descriptive account of the basics and historical background and perspectives of music copyright for the clarification of ideas or reinforcement of arguments. Secondly, the other variant of this model that was used is the exploratory case study whose role was to enable attempts of understanding music copyright laws, music copyright infringement cases in UK and US and the extent of protection provided to artists by music copyright by looking beyond descriptive features of the music copyright phenomenon (Stake, 1995).

Sources of information used

In order to carry out this study, a specific process was used that involved a step-by-step procedure where the first step was the planning of the study schedule and determination of the study objectives, hypotheses and research questions as well as identification of the potential sources of information and methods of collection (Yin, 1994). The next step was to identify the elements of the case study and documents needed for review. Collection of the relevant qualitative and secondary data required for this study was conducted by reviewing various online databases such as the UK Copyright Service, UK Intellectual Property Office, The Clute Institute, Music Copyright Infringement Resource, Sound Rights, among others. Other secondary sources of data such as books, journal articles, reports and websites were also reviewed for additional information. The collected data was then subjected to keen and critical evaluation to enable dissemination of the collected information in a meaningful manner upon testing of the study hypotheses which facilitated making of conclusions and recommendations (Hamel, Dufour and Fortin, 1993).

Furthermore, in order to ensure that the study objectives were achieved appropriate information was gathered from the above mentioned sources. This was only achievable through identification of appropriate sources of the needed information. However, the data collected for this study was both secondary and qualitative from which meaningful discussions and conclusions were drawn upon critical evaluation (Stake, 1995). Moreover, adoption of an exploratory and descriptive case study research design enabled collection of secondary data which was deemed more economical due to the time and money saved as a result of ease and speedy access of the information compared to primary data. Furthermore, secondary data facilitated the collection of voluminous amount of secondary data which was sufficient for convenient discussion and evaluation; hence this helped in improving the understanding of the phenomenon under study since it availed all the required information (Yin, 1993).

However, evaluation of secondary data used in this study was significantly crucial in order to ensure that both the data and the data sources were credible and reliable. For instance, the secondary data collected for this study was evaluated to ensure it satisfied certain requirements such as availability where it was checked to determine whether the required information was available. The secondary data collected was also evaluated for relevance to make sure it was appropriate and relevant for the case study phenomenon by ensuring it was neither outdated nor beyond the scope of the case study (Feagin, Orum and Sjoberg, 1991). Furthermore, accuracy of the secondary data collected for this case study was evaluated by examining the dependability of the data sources used in course of the case study. Finally, the secondary and qualitative data collected for this case study was evaluated to check it for sufficiency where it was ensured that the available data retrieved from various secondary sources had to be adequate (Hamel, Dufour and Fortin, 1993). Evaluation of secondary data retrieved for this case study showed that it succinctly satisfied the above mentioned requirements (Tellis, 1997).

CHAPTER 6: MUSIC COPYRIGHT INFRIGEMENT CASES AND DISCUSSION

Introduction

At no particular time is anyone interested in being ripped off, especially among the musicians who invest immense resources in terms of time and money in writing and recording their songs. Hence, the copyright protection pays homage to musicians as they seek to abate copyright infringement incidences. However, because it has also been sometimes hard to pinpoint copyright infringement, history of music is characterised by numerous music copyright infringement cases that are notable. In the cases of successful music copyright infringement cases, this is an indication of the success of copyright laws in protecting musicians. However, there are several famous music copyright infringement cases in the both US and UK. Some of these cases have resulted to injunction of the culprits or compensation of the musicians to deter further perpetuation of music copyright laws infringement. As a result, some of the famous music copyright infringement cases are discussed in this study as shown below:

Study Results: Music Copyright Infringement cases in UK and US and Discussion

George Harrison vs. Bright Tunes Music Corp [1976]

The song ‘My Sweet Lord’ by George Harrison was released in 1971 and it was a hit because it dominated the charts for quite some time. However, a suit was filed against George Harrison together with his American and English companies (Fair Wage Lawyers, n.d.). The reason for the law suit involved a music copyright laws infringement by Harrison involving plagiarism on a song recorded by Chiffons in 1962 called “He’s So Fine” (HSF), but later in 1972 it was moved under the Bright Tunes label. The song by Chiffons did exemplary well in the US, but in the UK it received a luke-warm reception. Bright Tunes filed the suit in 10^th February 1971, but a settlement out of court was approached which never matured because of the small offer presented and the court case proceeded since the Bright Tunes wanted 75% of the royalties obtained from the song “My Sweet Lord” (MSL) by Harrison purported to have been plagiarised including surrendering of the song’s copyright.

Two phases were involved in conducting this suit, a move that can be regarded as making perfectly good sense in these types of litigation. This is mainly because it would be a mere waste of time for preparation and delivery of financial information by Harrison necessary in determining the amount due to Bright Tunes unless it had already been found by the court that Harrison had actually plagiarised the song HSF. Upon listening to the contentions by both sides, the judge found that Harrison had indeed infringed upon the copyright of the song HSF. For instance, the judge said that all the evidence provided indicated that the two songs were virtually identical.

Despite Harrison’s argument that he copyright infringement was subconsciously done, this did not convince the judges. The decision of the judges was entrenched on the basis that Harrison had totally violated the copyright ownership principles, by creating a song that was similar to another one which is copyrighted without seeking for authorization first. This is mainly because not only were the two songs similar in terms of lyrics, but the melody, harmony and rhythm was considerably the same. This was an indication that this was a case of intentional copyright infringement through plagiarism since Harrison also confirmed to have previously heard the plagiarised song. Hence since Harrison’s song was found to lack originality and its expression in terms of lyrics, melody, harmony and rhythm were based on another song, he was found liable of copyright infringement.

However, Harrison appealed the decision of the court terming the incident as subconscious plagiarism, but the previous ruling was upheld even though the judge found that it was necessary to re-set the case for a trial on the issue of damages. The arguments of Harrison in his appeal were that subconscious copying was not supposed to be treated as plagiarism terming it as an unsound policy because he did not copy the melody of HSF purposely, but the appellate court maintained that showing of “intent to infringe” was not a requirement under the Copyright Act in supporting a finding of infringement. After the judge found Harrison guilty of copyright infringement, he was ordered to pay $587,000.00 plus interest after which the judgment was dismissed in 1981 upon full payment of the money.

However, the complexity of copyright cases was evident in this case when it came to the calculation of the damages. This is mainly because in order to determine the earnings for MSL (Harrison’s plagiarised song), the court had to look at four key sources of revenue in order to compute the final amount such as: performance royalties, mechanical royalties; sale of folios and sheet music, and the Apple Records, Inc. Records. Accurate calculations of the damages whenever it is deemed necessary after a court ruling is a very challenging task that needs to be soberly approached in order to make sure there is fairness to the parties involved in the lawsuit as a result of accurate determination of the damages required to be paid. In addition, this case served another role of showing that, there is no way through which intentional or deliberate plagiarism can be termed subconscious plagiarism upon provision of substantial evidence to prove intentional copyright infringement. Furthermore, the two phases set out in this case are also important since you cannot determine payable damages prior to determination of whether the accused is guilty of copyright infringement. Hence, this is a clear indication of the remedies that are likely be used upon copyright infringement. Thus, compensation after copyrights have been infringed is the ultimate remedy in most music copyright infringement cases.

John Fogerty vs. Fantasy Inc. [1985]

This case brought to limelight the question of whether somebody can plagiarise himself. This is due to the fact that John Fogerty was the lead singer of Creedence Clearwater Revival (CCR), a popular rock group where in 1970 as part of this group Fogerty wrote the song “Run Through the Jungle,” whose exclusive publishing rights were later acquired by Fantasy Inc. however, after the disbandment of CCR in 1972, Fogerty left and began his solo career with a different label. In 1985, Fogerty published a song called ‘The Old Man down the Road’ which was the leading track in his album, which Fogerty released on Warner Bros. Records. In the same year, Fogerty was sued by Fantasy Inc. for copyright infringement claiming that that the two songs were same with only slight variations in the used words between the initial and latter song. Essentially, this case brought another angle of the suit was where Fogerty was under accusations of plagiarizing himself (Fair Wage Lawyers, n.d.). Therefore, a striking perspective of copyright infringement was presented this case necessitating the need to ask an interesting question of whether somebody can plagiarise himself. This is mainly because this case involved a suit of CCR against Fogerty after he had left the CCR to start a solo career concerning Fogerty’s hit song “The Old Man down the Road” in his first album claiming that Fogerty infringed the copyright of CCR’s song “Run through the Jungle,” which was incidentally sang by Fogerty himself while he was still at CCR.

Moreover, throughout the trial stage of this case there was a strong consideration of whether it was possible for a creator of a copyright to infringe his or her own work. This was attributed to the fact that on the basis of copyright ownership principles, Fogerty and the CCR group had transferred the copyright ownership of the alleged song to Fantasy Inc. this mean he longer owned the song copyright, but he was entitled to beneficial ownership of the song and was supposed to continue receiving royalties for the song. Therefore, based on the terms and conditions of transferred copyright ownership, it is not possible for a legal copyright owner to infringe his own copyright, and also the co-owners cannot bear any liability to each other over copyright infringement. However, this principle was not followed in this case as Fogerty had asked the court to do, and the court denied this request arguing that it would lead to copyright infringement against third parties in his attempts towards protection of his economic interests, but he needed authorization in order to exercise the legal owner’s rights. This allowed the lawsuit to continue since Fantasy Inc. had alleged that Fogerty’s song was a creation based on an unauthorized derivative work arguing it was created on the basis of his own original song, the copyrights ownership to which had been transferred to Fantasy.

Considering the principles that govern copyrightable music, it is evident that there are originality and expression requirements for musical works. These requirements involve specific components of a song such as the lyrics, melody, harmony and rhythm. Despite the two songs been different in terms of lyrics, Fantasy claimed that they were similar in terms of melodic, harmonic and rhythmic components. However, Fogerty used a guitar in court to proof that the songs were not the same. Upon hearing the songs been played for jury in court by Fogerty and after seeking expert’s involvement, a decision was made that the songs were not the same, because the only thing these songs shared was the style indicating it was not a plagiarism or copyright issue thereby ruling in favour of Fogerty (Fair Wage Lawyers, n.d.). This confirms that even if a song’s lyrics are different, the similarity may be traced in the melody, harmony or rhythm all of which are copyrightable components of a song, hence under copyright protection.

After the dismissal of this case by the court, Fogerty sued Fantasy Records in order to be awarded attorney’s fees spend during the copyright litigation as provided by the Copyright Act of 1976 in the United States, something that was not granted by the district court. Upon Fogerty’s request was denied by the district court through the conclusion of the jury that the suit was not brought by Fantasy Inc. in bad faith, meaning that the suit was not frivolous. However, this indicated an affirmation by the Ninth Circuit refusal to abandon its standards that differed when it came to the issue of successful defendants seeking attorney’s fees in copyright cases compared to successful plaintiffs. As a result this situation which is a clear indication of double standard, it was a matter of course for prevailing plaintiffs to generally obtain attorney’s fees, while for prevailing defendants to obtain attorney’s fee they had to show that the suit was brought to court in bad faith or was frivolous. However, since these double standards did not exist in other courts of appeals to award attorney’s fees in this context, Fogerty decided to appeal for the payment of attorney’s fees at the Supreme Court in United States which agreed to review the decision by the Ninth Circuit and he was granted attorney’s fees.

This case is an example of how copyright cases can be complicated, considering that it took the use of guitar to determine whether the two songs were similar. This implies that music copyright not only involves the lyrics, but also the rhythm and notes of a song are also subject to copyright protection. For example, Fantasy Inc. claimed that despite the two songs been different in terms of lyrics or words used, they were actually the same in all other aspects such as the beat, rhythm and notes. However, Fogerty had to use a guitar in court in order to prove to the jury that the two songs were actually not the same as claimed by Fantasy Inc. The jury’s ruling in favour of Fogerty was a big achieved to the role of copyright laws in protecting artists against other music industry stakeholders or people with malicious intentions. This is one of the music copyright cases that show the importance of copyright laws in protecting the rights of artists.

Therefore, this was a landmark music copyright infringement case since it reiterated on the significance of artists’ protection from other people or entities that would take advantage of them. However, considering that this case was a unique one, the court ruling in this case has been subject to considerable criticism because it did not provide an elaborate explanation of whether it was possible for someone to plagiarise himself. This is mainly because, despite the fact that Fogerty was accused of plagiarism which amounts to copyright infringement by Fantasy, Inc. which was not true, the court did not consider that the two songs had been composed the same artist. Thus, irrespective of the fact that, the court ruled that the songs were not the same, it didn’t give a guideline on whether somebody can plagiarise himself as the case seemed to portray. Therefore, since this was a landmark lawsuit it would have provided a guideline on whether it is possible for an artist to continue using his or her own style after the rights to their creations have been signed by a different label. This was something this case did not achieve, thus opening a lee way for criticism.

Michael Bolton vs. the Isley Brothers [1992]

In this case, Michael Bolton was accused by the Isley Brothers of plagiarising their song. The song under question was “Love is a Wonderful Thing”, released by Isley Brothers 1966 followed by a subsequent release by Bolton in 1991. Unfortunately, the two songs share the same name and some parts of Isley Brother’s song were lifted into Bolton’s song. A suit was then filed by Isley Brothers against Bolton for plagiarising their song. The court found Bolton guilty of infringing copyright laws and ruled in favour of the Isley Brothers resulting to the largest award for plagiarism in the history of music. An award of 5.4 million dollars was given to the Isley Brothers where the award calculation was done on the basis of 66% of past and future royalties (Fair Wage Lawyers, n.d.).

However, proof of copyright infringement particularly involving music is often highly circumstantial, mainly because a copyright plaintiff must be in a position to prove the copyright ownership and infringement the same copyright through copying of protected elements of a song by the defendant. This is very important because direct evidence of copying in order to proof copyright infringement involves a fact finding process to show that it was possible for the defendant to “access” the plaintiff’s song and that there is “substantial similarity” between the two songs. Despite Bolton’s denial to have ever heard the song by Isley Brothers which had been written and recorded almost 25 years prior to his song, his earlier demonstration that he admired Isley Brothers’ music totally undermined his claim that he independently created his song. However, the court found Bolton guilty of subconsciously copying Isley Brothers’ song, and he was not relieved the liability of copyright infringement.

This was mainly because the evidence presented before the court not only found Bolton liable of copying the lyrics including the song title, but also he had copied the melody, harmony and rhythm of Isley Brother’s song. This meant that Bolton’s song lacked originality and expression requirements for a copyrightable musical work. This was found to be a blatant copyright infringement case making it to attract a very large fine. However, despite Bolton’s argument that he intended to purchase the song copyrights from Isley Brothers, his claim was unfounded since he went ahead and reproduce the song before acquisition of authorization.

Therefore, since there was enough evidence to show that Bolton had plagiarised Isley Brothers song, a substantial compensation was awarded despite persistent claims by Bolton and affiliate music labels such as Goldmark and Sony Music that the case lacked evidence to show that Bolton had infringed Isley Brother’s song. Furthermore, this case is an indication that copyright laws have been essential in protecting unpopular artists from the incumbents who are likely to use their financial resources to take advantage of them. However, when an artist has signed more than one contract with a plagiarised song it may become complex to accurately determine the actual damages that should be paid.

Summary of the cases discussion and hypotheses evaluation

Considering the three music copyright infringement cases considered in this case study it is clearly evident that copyright laws can be effectively used to protect artists, songwriters and music industry as a whole. This is due to the fact that despite the copyright infringement cases been diverse, universality is observable on how they were all resolved. For instance, various aspects of music copyright infringement such as illegal copying and plagiarism have been addressed in the considered cases (Cooper, 2005).

Moreover, the most observable thing in all the three music copyright infringement cases considered is that songs copyrighting, especially chords and musical progressions has never been an easy task, and the determination of infringement of copyright has been a murky area of law which requires effective cooperation between all the music industry stakeholders (Cooper, 2005). The necessity for this is that copyright issues cannot be taken lightly when it comes to artists and music industry stakeholders since music is their source of livelihoods. Therefore, it is always advisable to obtain permission for music or any other creative works prior to use as well as ensuring that you abide to copyright laws when using music produced by other artists. Furthermore, people should pay for music prior to using it as well as making sure that trusted sources of the music (in case of online outsourcing) are used for the avoidance of copyright laws infringement (Deazley, Kretschmer and Bently, 2010).

An evaluation of the study data shows that all the four hypotheses proposed prior to the study are confirmed. For instance, the first hypothesis that sought to discuss and evaluate whether the historical background and perspectives of music copyright has significantly contributed to the modern music copyright was confirmed. This is mainly because the introduction and discussion of the basics as well as historical background and perspectives of copyright confirms that the practice has undergone tremendous developments since its inception. This is attributable to the fact that all the changes that have occurred in the music copyright have contributed to the modern music copyright.

However, an evaluation of the hypothesis whether current music copyright laws governing music use in UK and US are diverse and effective was also confirmed. This is mainly because music copyright laws in UK and US cover diverse aspects of music use and are effective in regulating music use, copying, performing, distribution and hiring. Moreover, the third hypothesis that sought to evaluate if there have been numerous landmark music copyright infringement cases in UK and US has also been confirmed where a small sample of three cases has been considered both in US and UK out of numerous cases of this nature in order to enable explicit and succinct discussion and analysis of the pinpointed cases. Furthermore, the fourth hypothesis seeking to evaluate whether substantial protection of music industry stakeholders has been achieved through music copyright has also been confirmed. This is mainly because the remedies offered for music copyright infringement culprits such as injunctions and compensation awards have to a greater extent contributed to the determent of music copyright infringement incidences (Deazley, Kretschmer and Bently, 2010).

CHAPTER 7: CONCLUSION AND RECOMMENDATIONS

Conclusion

From the discussion and critical evaluation of the information retrieved in course of conducting this study, it is clear that copyright has been significant in the development of the music industry. For instance, in the discussion of the historical background and perspectives of music copyright it can be seen that modern music copyright has undergone tremendous changes since inception. Moreover, an evaluation of the importance of music copyright confirms that without the music copyright music industry would not be in existence since the stakeholders such as artists, songwriters, musicians, music publishers and record companies would not have returns for the investments they have made in terms of time and money. It has also been seen that there are various creations that qualify for copyright protection as well as different forms of copyright ownerships. Furthermore, the three cases of music copyright infringement discussed in this study clearly shows that copyright infringement is a diverse and complex issue which requires a sober approach in order to ensure key issues are addressed. It is also essential to note that music copyright has been facing significant challenges from inappropriate use of internet and new technologies to facilitated music copyright infringement. Moreover, it is important to note that the four hypotheses proposed at the beginning of this study have been all confirmed.

Recommendations

It is undoubtedly evident that significant gains have been attained through music copyright which has led to substantial protection of all stakeholders in the music industry. This protection is attributable to the significant growth of the music industry observed in the recent past. However, despite the current copyright laws being considerably effective in abating music copyright infringement, it is necessary to come up with more recommendations for newer and more effective measures that would significantly deter music copyright infringement. Some of the necessary recommendations include:

Copyright laws should be made stricter by addressing all the loopholes in the current music copyright laws as well as making sure stun remedies for copyright infringement are provided for by the copyright laws. For instance, injunctions and compensation awards for copyright infringement should be significantly increased to make sure potential copyright infringements are deterred.
In order to win the online music war involving illegal downloading, copying and distribution of music more stern legal enforcements are imminent. This would provide a guideline in the control of online music in order to ensure artists; songwriters and musicians obtain the optimal benefits from their work. This would also require the Internet Service Providers (ISPs) to effectively play their role in monitoring possible signs of copyright infringement and reporting them for appropriate measures to be taken.
Copyright education is also necessary in creating awareness among users of music and other creative works. This is essential because many users engage in copyright infringement incidents without knowing such as illegal sharing and copying of music which is among the most rampant forms of music copyright infringement. This would involve informing the users about the legal actions that would follow infringement of music copyright for significant determent.
Ensuring that copyright laws regularly updated in order to address challenges presented by rapidly changing technologies in an effective and timely manner. This would ensure the menace of copyright and digital technology is countered at onset.
Measures to promote international copyright protection need to be devised which involves improved international relations particularly on this issues as well as signing of treaties that would ensure music copyright infringements are significantly deterred for continued growth of the music industry.

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