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

Abstract

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.