The Denial of a General Performance Right in Sound Recordings: A Policy that Facilitates Our Democratic Civil Society?

Abstract

John Coltrane, as a musical performer, is not granted the right to exclude others from performing his recording of 'My Favorite Things' on the radio, television, or at a public setting such as a restaurant or hotel. Under the Copyright Act, only Rogers and Hammerstein, the composers of 'My Favorite Things,' are granted the right to authorize the analog public performance of the composition. But musical performers can claim the same royalties granted to composers by simply writing their own songs. Congress and legal scholars have failed to realize that, over the last six decades, performers have responded to the denial of a general performance right by increasingly composing their own repertoire: 7% in 1950; 22% in 1960; 50% in 1970; 60% in 1980; 64% in 1990; 68% in 2000; and 88% in 2004.

This article contends that the Copyright Act's denial to performers of the right to profit form the public performance of their recordings has facilitated our democratic civil society by inducing changes in the content produced by the music industry. When performers compose their own songs, they produce music that is more politically and socially forward-leaning, diverse, and averages 40.5 seconds longer than when they play material written by a professional songwriter. This article asserts that the Copyright Act creates social benefits, through not proportionately rewarding musical performers for their contributions, by focusing creative practices in a way that facilitates democratic discussion.

Keywords: Copyright, Performance Rights, Digital Performance Right, John Coltrane, Beatles, Buddy Holly, Charlie Parker, Jazz, Music, Composing, Law, Musicology, Intellectual Property

JEL Classification: 34, L82, K00, K30, O31, A12