IASPM 2014: Take It or Leave It! Copyright, Creators and Commercial Decision-Making


Kenny Barr, University of Glasgow

Pub gig

Many unsigned bands covet the ‘badge of honour’ of signing a deal, regardless of how unfavourable its terms may be.

ABSTRACT:

This paper scrutinizes the role of copyright in the commercial decision-making of Popular Music creators. UK copyright law confers an exclusive ‘basket of rights’ on musical creators. Theoretically at least, this privileges creators as the key decision makers in copyright transactions. However, scholars have questioned whether most creators wield meaningful influence in these negotiations. Instead, they have argued that creators find themselves in extremely weak bargaining positions largely due to the ‘take it or leave it’ terms offered by commercial investors.

Perhaps as a consequence of these critiques, the nuance in the ‘lived experience’ of creators’ commercial decisions has been largely overlooked in academic research. Drawing on data gathered from in-depth interviews with contemporary creators and investors, this paper probes the complex interplay between these key stakeholders.

The paper argues that copyright transactions are not simply reflective of a predetermined and predictable power dynamic between creators and investors. Rather, creators’ commercial decisions are the result of a complex and fluid dialogue with investors. Moreover, copyright negotiations are shaped, not only by economic factors, but are defined by divergence in expectation, experience and access to information among these key stakeholders.

Kenny takes the position that copyright’s reach may have become excessive – in scope and term. He speaks of a ‘bundle of rights’ to copy the work, issue copies, rent or lend, perform or communicate the work, and the right to make an adaptation. He reminds us of the term – a musical work is Life+70yrs; a sound recording is 70yrs.

He reminds us of two of the fundamental principles of the CDPA (Copyright, Designs and Patents Act 1988).

  • The author of a work is the first owner of any copyright in it.
  • Copyright is a property right… an exclusive and assignable legal right.

Next we see an overview of collectively negotiated rights (in the musical work – PRS and MCPS – and in the sound recording (PPL). Constrast with Individually negotiated rights – where individuals negotiate with publishers (for the composition) and record companies (for the sound recording).

He has interviewed four categories of creators:

  • A – no copyright transactions
  • B – experience of collectively negotiated rights only
  • C – collectively and individually negotiated transactions
  • D – collectively and multiple individually negotiated transactions

The sample size is small – 25-30 – so he states he will make no claims about the overall picture, but he will direct us to some significant themes. He talks of the ‘badge of honour effect’, the role of advisors and managers, and of assignment of copyright representing the price of admission into the perceived closed shop of the music industry. For early career musicians (category A&B), these agreements symbolise having ‘arrived’ in career terms; for more experienced creators, the agreements are perceived differently. Kenny has spoken to investors – publishers, major labels, independents etc, active in both publishing and sound recording investment.

Kenny points out that the long-term nature of copyright means that when the ‘badge of honour loses its lustre’ creators are in many cases left with agreements that are not necessarily in their favour. He further observes that there is a mismatch of understanding of copyright law between investors and individuals, the latter being substantially less copyright-aware, with an incorrect assumption that they own their own IP, even after it has been contractually assigned or part-assigned to investors. This ‘asymmetry of understanding’ is alarming, and Kenny notes the increased use of the ’life of copyright’ deal – that is, rights are assigned to the investor for the full term. This is contrasted with the short-term success of the majority of created works, especially in a climate when many artists are ‘dropped by the label’ in the early days.

Kenny’s point is that these imbalances have partly prevented true democratisation of the music industry. It’s not about access to capital – it’s about access to audiences.

[JB note – a very lucid and well-research presentation, with an impressively inbiased methodology. The ‘badge of honour’ effect of ‘getting a deal’ is a phenomenon that many of us at the conference recognise from our experience working with early career artists and songwriters, and it was much discussed in the Q&A afterwards. I like Kenny’s work a lot and the crossover between this and my own paper (later today) would be interesting to explore further.]

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