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In Defense of Copyright: Creativity, Record Labels, and the Future of Music

Brian R. Day

Orrick, Herrington & Sutcliffe, LLP

May 17, 2010

Seton Hall Journal of Sports and Entertainment Law, Vol. 21, No. 1, 2011

As music production and distribution has transitioned into the digital realm, music and legal commentators increasingly contend that the record label business model is unsustainable and unnecessary. Whereas labels were once critical to the promotion, manufacture, and distribution of physical albums, commentators suggest that recent technologies may have significantly undercut the traditional advantages enjoyed by major labels. In a world of Pro Tools, iTunes, and MySpace, some argue that artists are fully capable of recording, promoting, and licensing their own music.

The consequences that such theories might have upon the music industry and upon the U.S. system of music copyright more generally are profound. If labels are in fact no longer necessary to sustain a healthy music market, the fundamentals of music authorship and copyright ownership in the United States may soon undergo significant transformation. Today, recording contracts between record labels and artists weave a complex web of profit-sharing, recoupment, and upfront advances. In a post-label world, it is suggested that artists (and their management) would control all creative and business aspects of their music, including production, marketing, and distribution. Most importantly, however, artists would own the copyright in the music they record, along with the rights to any and all licensing royalties received therefrom.

This Article will evaluate the need for record labels in the digital age, and consider whether fundamental principles of copyright justify record labels’ continued ownership and control over sound recording copyright. The Article surveys the current legal music landscape, and considers recent challenges to the traditional structure of the recorded music industry, including the seminal "long-tail" theory of music distribution and consumption online.

Number of Pages in PDF File: 43

Keywords: Music, Copyright, Record Label, Termination, Digital Copyright

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Date posted: May 17, 2010 ; Last revised: August 8, 2015

Suggested Citation

Day, Brian R., In Defense of Copyright: Creativity, Record Labels, and the Future of Music (May 17, 2010). Seton Hall Journal of Sports and Entertainment Law, Vol. 21, No. 1, 2011. Available at SSRN: https://ssrn.com/abstract=1609689 or http://dx.doi.org/10.2139/ssrn.1609689

Contact Information

Brian Day (Contact Author)
Orrick, Herrington & Sutcliffe, LLP ( email )
1000 Marsh Rd
Los Angeles, CA 94025
United States
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