Advice from a Lawyer: Legal and Biz Issues for Indie Artists
Is Your Music on MySpace Still Yours? (Mighty 1 Music)
By: Jeff Brown
Is Your Music on MySpace Still Yours?
My name is Jeff Brown, and I?m an entertainment lawyer in Portland, Oregon. I?ve been a roadie, played in bands, and managed a band that toured regionally, recorded with a well-known producer, and got a few bites from mid-major and major labels. I met Alex Steininger through his position at CD Baby, and we decided that I should write about business and and legal issues for the In Music We Trust website.
The timing couldn?t be better.
The pace of change, innovation, and exploitation in the music industry has never been more rapid than it is today. The digital music revolution is changing the way in which the complex laws, procedures, and customs that make up the music industry fit together.
Nowhere is that more apparent than in the recent controversy regarding the terms and conditions that applied to My Space users? content. You may have received the following e-mail:
"SUBJECT: Copyright repost! IMPORTANT FOR ALL ARTISTS/MUSICIANS!
BODY: Someone was bright enough to read the small print of the MySpace terms and conditions and found that once an artist posts up any content (including songs), it then belongs to My Space (AKA Rupert Murdoch) and they can do what they want with it, throughout the world without paying the artist.
Below is the offending clause. We are hoping to start a small revolution to try and put a stop to this. You can do your bit by posting out a bulletin to all your friends, esp artists, and badgering Tom with e-mails letting him know how unfair this clause is.
Thanks for your help and support. The amazing thing about My Space is how fast we can all communicate so if we all do our bit we should be able to change this.
?TERMS: (as of 17th March 2006)
By displaying or publishing ("posting") any Content, messages, text, files, images, photos, video, sounds, profiles, works of authorship, or any other materials (collectively, "Content") on or through the Services, you hereby grant to MySpace.com, a non-exclusive, fully-paid and royalty-free, worldwide license (with the right to sublicense through unlimited levels of sublicensees) to use, copy, modify, adapt, translate, publicly perform, publicly display, store, reproduce, transmit, and distribute such Content on and through the Services. This license will terminate at the time you remove such Content from the Services. Notwithstanding the foregoing, a back-up or residual copy of the Content posted by you may remain on the MySpace.com servers after you have removed the Content from the Services, and MySpace.com retains the rights to those copies.?
Important Update - May 3rd, 2006 It looks as if the terms have changed yet again. New Terms dated 1st May 2006 have removed all reference to their clause to retain back-up copies. I hope this is a step in the right direction."
Or perhaps you saw an article like this one from Aversion.com:
"Billy Bragg?s Complaints Change MySpace
June 28, 2006
His guitar might not exactly be a machine that kills fascists, but Billy Bragg's blog sure causes some concern for massive social-networking sites.
?I am very pleased to see that MySpace have changed their terms of agreement from a declaration of their rights into a declaration of our rights as artists, making it clear that, as creators, we retain ownership of our material,? Bragg said in a statement on his website. ?Having been adopted by the biggest social networking site on the block, I hope their recognition of the right of the artist to be sole exploiter of their own material now becomes an industry standard because there is much more at stake here than just the terms and conditions of a website.?"
When I read the MySpace terms and conditions listed in that e-mail I instantly recognized the driving force behind their creation: an overabundance of caution that is instilled in lawyers by professional training and custom. Put simply, the lawyer that drafted those terms and conditions was probably trying to capture every way in which music could possibly be disseminated from MySpace users? sites. After all, much of the site?s popularity (and its value to potential advertisers) is due to its rapid rise as a music-breaking force, in addition to a popular social networking site.
Unfortunately, in order to accomplish his or her goal, the MySpace lawyer had to use wording that could be interpreted to deprive artists of the right to sell their music. This is in part because many of the terms in U.S. copyright law are a product of the pre-internet era, and do not translate well to the internet era. Terms such as "public performance", and "reproduce." In the pre-internet era, a "public performance" was relatively easy to identify ? the broadcast of a song over the public airwaves via radio, or playing a song over the PA system at a sports arena, as opposed to listening to a compact disc in one?s home alone, or with family members or a small number of friends. Everybody knew what to "reproduce" a song in the pre-internet era meant - the copying of a song by making a physical or tangible recording of it (by taping it, for example), which allowed the person who owned the recording to listen to the song multiple times without buying a copy of the song.
The application of those terms to the internet era is problematic. Is streaming a song over internet radio a "public performance?" Streaming is similar to a radio broadcast in that it makes music available to a large number of individuals, but it does so by way of transmission over the internet, not over airwaves which under U.S. law are owned by the public as a whole. When a song is streamed to my computer, the copy of the song is created in the computer?s random access memory. The copy is ephemeral, meaning that the computer can (and probably will) overwrite it at some point; the copy does not allow me to listen to the song again so that I can avoid purchasing a copy of the song. Does my computer therefore "reproduce" the song by making an ephemeral copy of it?
The answers to these questions are unclear; the lawyer that drafted the MySpace content terms and conditions probably decided to include the terms "publicly perform" and "reproduce" in the list of uses of content that MySpace users granted MySpace in order to ensure that MySpace could continue to use music in the way that fueled its rise as band-breaking force and internet music destination. It took an astute artist to notice that the inclusion of those terms could give rise to an interpretation that, by agreeing to them, an artist gives up his or her right to two of the most significant revenue streams (public performance royalties, paid by ASCAP or BMI, and proceeds from the sales of CDs or downloads).
The lesson is that the careful drafting and use of legal and music industry terms in agreements is critical if artists are to reap the benefits promised by the digital music revolution. The change to the terms and conditions for the use of content on MySpace appears to prevent a legal interpretation that would deprive MySpace artists the most obvious of those benefits. However, the fundamental question posed by the MySpace controversy remains, and will remain continue for the for seeable future: how do you allow the use of your music in any way imaginable across the multi-media landscape of the internet to create exposure while retaining the ability to exclude people from your music (so that you can charge them for access to it) at some point in the unknowable future?
I?ll continue to explore the answers to that question in future columns - stay tuned.
This column is nothing more than commentary, and does not constitute legal advice. If you have a question about a music law/biz issue, e-mail me: firstname.lastname@example.org.