the Idea that Copyright Protections Limit Musical Creativity Strikes the Wrong Chord

By Michael Reinert ‘82

Michael Reinert  ‘82  is a Partner at Fox Rothschild LLP, and is one of Billboard Magazine’s Top Lawyers in the Music Industry.

I am writing in response to the position taken by Prof. Buccafusco in his article, "The Blurred Lines of Copyright Law are Limiting Musical Creativity" in the Fall edition of Cardozo Life (included below). There are many points he has raised which give rise to strong counter­arguments that should and need to be addressed. What dismays me the most, though, is that this line of thought is in keeping with a growing number of so-called copyright scholars who believe that virtually all copyright protection is unjust and that all creative efforts should be free and available to all with no restrictions. This position is currently being put forth in a "Restatement" being prepared by the American Law Institute and which is authored in part Christopher Sprigman

(mentioned in Professor Buccafusco's article as a colleague with whom he agrees) who has argued in the past that protecting a creator's copyright is harmful and who has downplayed or dismissed the devastating effects of piracy. This position, as well as that set forth in Professor Buccafusco's article, is a serious threat to creativity, and I speak as someone who has spent 35 years practicing law in the music business, both as a senior legal counsel to some of the biggest record labels in the world and as private counsel to some of the biggest artists in the world.

Let's examine the professor's argument.

The most disturbing point that he puts forth is that "pop musicians simply may be running out of creative space." He describes an "innovation space" that seems to be a place where creativity has boundaries and gets "filled up".

He further writes, "The scope of musical creativity likely isn't infinite."

My personal surprise at such a statement is only equaled by the sincere fear it instills in discouraging creativity at all. You might as well turn to every young songwriter today and tell them "don't bother because it's all already been done and you can't possibly come up with something new and original, you'll only get sued."

Part of the problem here is that the Professor ignores the very premise he puts forth when he says that "certain kinds of music that would have been unthinkable a generation or two earlier now fall squarely in the mainstream." As if Rock and Roll and Hip Hop were the first musical genres to defy their earliest critics and blossom into popular music. And he further denigrates the creative process in popular music by saying it has to apply to the lowest common denominator of musical taste, so therefor it cannot possibly be innovative in order to be "appealing." There's a "sizable share" of consumers (according "new research" that the professor neither quotes nor names) that just simply seem to want the same old thing, the comfortable shoe, the recognizable melody. They don't want new and innovative, they want familiar and safe. Perhaps there is some element of truth to that, just as vanilla is still the most popular ice cream flavor. But just because you want to please the masses, that doesn't give you a license to steal. There may be a finite number of notes on the scale, but to suggest that therefore there is a finite scale of creativity is to close one's ears to reality. We see and hear every day new innovations in music that do not tread on the rights of others, even though they may be utilizing the very same notes.

But what is most disconcerting is when he puts the blame for this supposed limited creative space squarely on the shoulders of "legacy" artists who, according to his definition, have nothing to lose by making a claim because they are either dead or no longer creating new works, so therefore they do not run the risks of being infringers themselves. And since he sees them as "beneficiaries of being at the right place at the right time," he is basically saying that they are merely opportunists who are just out to make a buck regardless of their supposed creative outrage when their works are misappropriated (a position espoused by Mr. Sprigman and other "copyleft" scholars).

Does anyone else besides me hear the chorus of rolling dead bodies?

First, I suggest that his definition is tainted so as to limit the types of plaintiffs to a specific sub-class of "legacy" artists. Dead or "inactive". I wonder if he would consider any of these artists to be considered "legacy" - Elton John, Paul McCartney, Stevie Wonder, Robert Plant, Rod Stewart, Berry Gordy. All of them had enormous hits from the time frame Professor Buccafusco sets out in his article (Marvin Gaye, The Hollies, Spirit) yet all continue to make new music. But theirs are amongst the most covered catalogs of all time, with generation after generation paying homage to their music by interpreting it in their own way, typically respectful, often unique and always within the terms of the law (compulsory licenses).

But then there are the instances where new artists want to take their own creativity and respect for the past a step further, so instead of a straight cover they create something with a sample, or perhaps a full derivative work. Obviously, these types of uses are not automatic by simply following a set of rules. These uses require the permission of the original copyright owner, something Professor Buccafusco sees as the very heart of the problem. Why should there need to be permission asked if there is not even a definitive taking, but only a substantial similarity? Why handcuff the creative flow of new music from new artists, just because you may have done so first? Why? Because the very nature of innovation and creative adventure is based on the basic concept that if you create something, you have certain rights in and to that creation from the moment of inception. Common law copyright. Some of those rights are enforceable, some are not. But it is impossible to argue that no rights vest in a creator. And every creator I know has the respect for the process to understand the need to respect the rights of other creators, just as they would want for themselves. Again, speaking with the personal experience I have in the industry, I have seen literally thousands of proper requests made by new artists to older artists who came before them to ask permission to embellish, re-interpret, mash, or utilize their original work in such a way so as to create something new and unique - a combination of prior and new creative thoughts, a collaboration of artists - and to be sure it is properly credited and recognized for what obvious contribution it makes to the new work, including proper financial remuneration. I have also seen many such requests denied, for multitudes of reasons but almost always rooted in a creative decision at heart. This is the same right we extend to songwriters when someone wants to use their song in a TV commercial, or movie, or political ad. There may be an association they disagree with, there may be an artist they dislike, or there may simply be a creative disagreement about the use of the underlying song in the proposed context. Regardless, the rights of each of the creators should be protected and respected above all else. Even if it means the new work never sees the light of day. But the Professor's position would eliminate such protections because it does not recognize that new creators still have a vast universe of music to explore and create, so therefore they must instead be given the opportunity to take from others. And to further imply that these rights should not be transferrable especially under estate laws is to devalue all intellectual property, not just music. Every creator of any type of property - intellectual or real - which generates incomes during their lives has the right to pass that income stream to his or her heirs for as long it is sustainable. And with that goes the right and responsibility to properly protect that property that the original creator held dear from both creative misuses and financial devaluation which that creator sought to share with his family.

Believe me, the vaults are filled with songs that never got released because they could never get cleared. And while some may see that as undue restriction, I ask those same people to put the shoe on the other foot - if they had created something special to them only to see it misappropriated by a third party without permission in an unacceptable way, would they still take this position?

Now, I will agree that there have been some frivolous suits brought with virtually no basis in fact or musicology. This is the truth, however, in all areas of litigation. We suffer the deceptions of the unscrupulous in order to preserve the process that protects the just. And another truth is that for as long as I have been in the business and far before that, copyright infringement suits were being brought against popular artists. Some just and some not, but I do not see that there is a new, greater proliferation of these types of suits that should give us cause to legislate against them. Is there a run on the courts that I've missed? I work with some of the top entertainment copyright litigators in the country and while there is frustration to an extent regarding the uncertainty of prevailing in such a suit, they all agree that such suits are still more a rarity than the norm. There have been some extraordinary high-profile suits in recent years, including the not so subtle reference the professor makes in his title to the "Blurred Lines" decision which has been debated heatedly from both sides, both in the courts and out. These are cases that capture the attention of the public because of their notoriety and the familiarity of the materials. Plus, in this day and age we all have access to the information surrounding these cases in virtual real time, anywhere we are, so their place in the collective spotlight gets even more enlarged. But these are cases that are few and far between given the number of new songs that hit the charts every week. Yes, there are some truly innocent players in this, who never had any intention of misusing someone else's work, and while they have the right to defend theirs as original, they must also accept the reality of their unoriginality when confronted with it.

To limit the rights of creators will achieve the exact opposite result that Professor Buccafusco and his colleagues profess will happen - creators will be reluctant to put their works out to the public for fear that they will never have any control of their works again. As someone who has spent my entire career working to protect the rights of creators and also as someone who has had the good fortune to have my own creative works published, I hope that all creators out there and their representatives will stand up to this form of restrictive enforcement that only serves those who use and consume but do not create.

Lastly, I feel CSL needs to provide a platform for rebuttal to the positions staked in Professor Buccafusco's article. At the very least I would have hoped that there be some disclaimer that the position was that of the Professor's and not the school's. But the manner in which the article is presented, "Faculty With Impact", leads the reader to believe that the school supports Professor Buccafusco's position and implies it is having an "impact" which somehow puts the school in a favorable light. I feel to leave it out there without a fair and equal response is a disservice to the Cardozo community and the creative community at large.

Thank you for your time and attention.

The views expressed herein represent the personal opinion of the undersigned and do not necessarily represent the opinion of Fox Rothschild LLP or any other member of its workforce.

Sincerely, Michael Reinert ’82

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The Blurred Lines of Copyright Law are Limiting Musical Creativity 
By
Professor Christopher Buccafusco

Sometimes it seems as if today’s musicians spend as much time defending themselves against copyright infringement lawsuits as they do writing new music. Reading about suits against Ed Sheeran, Nicki Minaj, Pharrell Williams, Robin Thicke, and a host of others, one might be tempted to think that contemporary pop artists are just uncreative copycats. 

The real issue, however, is that pop musicians simply may be running out of creative space. And this problem is being exacerbated by the behaviors of what we might call “legacy” interests—parties who own copyright interests in already-created songs but who won’t be making any new music. 

I have argued, with my colleagues Stefan Bechtold and Christopher Sprigman, that any field of creative production has a certain “innovation space.” This space represents the world of possible solutions to a given creative problem. At the beginning of a field, whether sonata form or smartphone design, the innovation space is wide open. Anyone is free to do almost anything. Over time, however, portions of the innovation space get filled by intellectual property rights. The earliest creators fill up the innovation space with their copyrights and patents, limiting the options for newcomers. Newer creators are faced with a dilemma in which they must either find a portion of the innovation space that hasn’t been claimed or pay a license fee to one of their predecessors. 

 The available innovation space for popular music has changed substantially over the last 75 years. Some innovations, most importantly rock and roll and rap, have dramatically expanded the areas of available musical creativity. Certain kinds of music that would have been unthinkable a generation or two earlier now fall squarely within the mainstream. 

But there are reasons to be concerned. The scope of musical creativity likely isn’t infinite.  New research applying social science methods to aesthetics suggests that people’s musical preferences are more limited than was previously believed. So while it’s possible that we’re on the cusp of another major evolution in musical taste, it’s also possible that we’re getting close to exhausting the varieties of music that people find appealing. 

Moreover, whatever is happening at the boundaries of musical innovation, the innovation space at the core of popular music is becoming as crowded as a Tokyo subway car. Finding a pleasing melody that hasn’t already been used by another artist is likely to get harder and harder. While innovations will create demand for new kinds of music, there will always be a sizable share of consumers who want new music that lies close to the center of traditional pop. Discovering ways to satisfy that demand is becoming increasingly difficult. 

Unfortunately, the behaviors of some copyright owners are making this problem worse. The available innovation space depends on the scope or breadth of the rights granted to copyright owners. Copyright law doesn’t just prevent exact duplication of a work; it also prevents “substantially similar” copies of work. Lately, the scope of musical copyrights seems to be expanding. 

Active creators will typically have conflicting interests. They want copyright laws that are broad enough to give them strong rights against competitors but narrow enough to ensure there is always room in the innovation space for their next song. One day, they are potential plaintiffs with grievances against copyists, but the next day they could be potential defendants on the hook for millions of dollars. 

But legacy interests - those parties who are no longer making music or who have inherited rights from previously active musicians - do not face these competing concerns. Since they’re not creating any new music, they don’t run the risk of being hauled into court. The statute of limitations will have run out long ago for any copyrights they or their parents may have infringed. 

It’s not surprising, then, that many of the recent lawsuits have been brought by legacy interests. Plaintiffs like Marvin Gaye’s estate or older bands like The Hollies and Spirit will always prefer broader copyright protection, because they never have to worry about being defendants. They can push for copyright law to protect more than just a song’s melody, but also its rhythm, feeling, or groove. 

Many legacy interests from the 1960s and 1970s are the beneficiaries of being at the right place at the right time. Thirty years earlier, many of their contributions would have failed to gain recognition or copyright protection, as the stories of the many black progenitors of rock and roll indicate. Yet 30 years later, these artists would have faced a much more crowded innovation space and much greater risk of copyright infringement. 

It’s possible that overcrowding at the core of musical creativity will encourage artists to push the musical boundaries even further. But it’s also possible that expanding music copyrights will simply make it harder (and more expensive) for newer artists to produce the kinds of music we want to listen to. Then, all we’re likely to see is a massive wealth transfer from future consumers and artists to the heirs of those who lived and worked at just the right time. If older creators and their descendants are unwilling to stop the barrage of lawsuits, Congress and the courts should step in and determine the appropriate scope of copyright law. Leaving to a jury the open-ended question of whether two songs are “substantially similar” could end up hindering musical creativity. 

Christopher J. Buccafusco is the director of the Intellectual Property & Information Law Program at the Benjamin N. Cardozo School of Law at Yeshiva University.