Copyright, Music, and Race: The Case of Mirror Cover Recordings

Abstract

Has copyright law in the United States ever aided discrimination on the basis of race, or exploitation of or prejudice against racial minorities? Copyright legislation in the United States has never explicitly incorporated racial categories. However, particular features or doctrines of copyright law may arguably facilitate racial discrimination or exploitation, or disadvantage racial minorities, in a more focused manner. K.J. Greene, Candace Hines, and others have argued that copyright doctrines such as the fixation requirement, the idea/expression dichotomy, and the requirement of locating individual authors, as well as former doctrines such as notice and registration requirements and the requirement for written notation of music, have disadvantaged racial minorities, and African Americans in particular. This essay follows in those footsteps, and investigates another set of copyright doctrines that operated to the disadvantage of minority creators. Those doctrines concern copyright protection of musical works and sound recordings, and operated to deny composers and musicians rights in what they added to songs during the process of recording versions of them. One goal of this essay is historical recovery. I will show that copyright doctrines that are facially race-neutral were formulated in a racially-charged context in which it was clear the doctrines were going to disparately impact African-American composers, musicians, and vocalists. And disparately impacted they were. Many record companies made dozens of commercially successful “mirror cover recordings” that featured white vocalists and musicians who copied without permission, compensation, or attribution music created by African-American musicians and vocalists. This recovery of this history also confronts us with the question of what we should do when adoption of a rule in copyright law facilities discrimination against or exploitation of racial minorities, or by extension, discrimination against or exploitation of other minorities or vulnerable groups. Should we leave matters of discrimination to general anti-discrimination law, or is there a place for considering disparate impacts when formulating facially neutral doctrines in copyright law? I will argue that there are good reasons for taking disparate impacts into consideration when formulating copyright policy. Part I provides an introduction to the historical and doctrinal context necessary to understand copyright, music and race in much of the twentieth century. Those details include the construction of the racial categories that were used in the marketing of sound recordings, and the operation of the mechanical compulsory license. Part II introduces the phenomenon of white “mirror covers” of songs originally recorded by African Americans – covers that were not just recordings of the same song, but also copied some or all of the musical arrangement and stylistic elements introduced on the original recording. Part III focuses directly on the litigation of and decision in Supreme Records, Inc. v. Decca Records, Inc, a landmark case concerning the protection of initial recorded versions of songs against “mirror covers” of those songs. It also describes the impact of the Supreme Records decision, both as judicial precedent and as a model for legislation adopted as part of the Sound Recordings Act of 1971 and the Copyright Act of 1976. Part IV describes the treatment of covers under current law. Part V discusses whether there are policy lessons to be drawn from this history. Part VI concludes.