25 February 2005

Beating All Around the Watchtower

OK, so it's actually a Dylan song… but it's a better inspiration than is "Crosstown Traffic."

A hometown hero of mine—or, rather, his estate—has struck another blow for artists in the struggle between artists and patrons for control of music copyrights. In Experience Hendrix LLC v Purple Haze Records Ltd., Justice Hart of the England and Wales High Court essentially decided that hypertechnical alternative interpretations of a badly drafted retroactive copyright statute did not act to divest the performer of his copyright. More details in the IPKat's cogent analysis (and certainly better written than the statue in question… or, sadly, the opinion interpreting it).

In any event, there is a much larger issue lurking here—an issue that courts and legislatures have been desperately evading for years now: What is the proper role of a "patron" in the copyright system? In functional and economic terms, that is what a "production company" is in the context of audio and audiovisual materials. This is perhaps most apparent with CDs; movies and TV are far too much a true group production, with all of the hairy considerations that implies (particularly given the unshorn directors and crews after a few weeks on location…). Since Jimi Hendrix's performances all predate the critical dates, I'll grab a more-recent CD off the shelf for my example here. Mark Knopfler's CD Sailing to Philadelphia (2000) bears the following copyright notices:

  • The CD itself, on the outside, is © 2000 Mercury Records Ltd (London)
  • The songs themselves (but not the performances) are each © 2000 Straitjacket Songs Ltd PRS
  • The photographers for the CD packaging each get their own copyright notices
  • Each of the "guest performers" (who appear on less than all of the tracks) gets a specific acknowledgement, as do the recording companies to which they are contractually bound ("James Taylor appears courtesy of Columbia Records")—but does not get a copyright or performance right acknowledgement

That is, the "master" copyright on this particular CD is the record company's. Not Knopfler's individually, nor his own holding company, nor a collective of the actual performers. Studio-recorded music is an easier case for another reason: Although the recording engineer certainly provides important input, as does the editor, ordinarily the performer is closely involved in the editing process… and it's a lot more like a book's editor than a film production, anyway. In other words, the "originality" necessary for copyright protection may be lacking. There sure as hell isn't anything "original" in most CD packaging or marketing efforts, either!

It's hard not to note the contrast with the explicit change in practice represented by the Statute of Anne—which, after a ten-year effort, transferred the copyright from the publisher (and Company of Stationers member) to the author—and explicit language of the IP Clause in the US Constitution with this "default" situation. Something isn't right here; and once I finish that other article, perhaps I'll be more specific. Just note for the nonce that the public-perception problem with music and film, and hence the "acceptability" of piracy, is much greater than that for textual works (or at least books, as opposed to articles).

All of this vanishes in a purple haze of confusion after reading Mr. Justice Hart's opinion, which implicitly questions whether that default condition is a correct or reasonable policy.