Allegro

Copyright: Defending the Most Fundamental of All Artist Rights

Volume 125, No. 6June, 2025

Ken Hatfield

This is one of two articles in this month’s Local 802’s A.I. series. The article below is by Ken Hatfield, a member of Local 802 since 1977. See also Harvey S. Mars’ article elsewhere in this issue.

When Twitter (now X) co-founder Jack Dorsey recently proclaimed we should “delete all IP law” and Elon Musk replied: “I agree,” they were echoing a sentiment that has been prevalent in the tech world for decades.

To be clear, copyright is among the Intellectual Property (IP) laws they want to “delete”.

Like the human rights enumerated in the preamble to the Declaration of Independence, copyright is one of those “unalienable rights” “endowed by our creator”. Copyright is a moral right. If you created it, you own it, and you alone have the inherent right to determine who can make copies of your creative work.

Article I, Section 8 of the US Constitution grants Congress the power “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

Copyright was among the first laws enacted by the first US Congress. It’s been foundational to the laws governing US commerce ever since.

So, what is copyright? Precisely what its name implies: the legal right to make copies!

Copyright is essentially an extension of property rights. With tangible physical property ownership is relatively easy to prove because ownership can be equated with possession. We’ve all heard the expression “possession is nine-tenths of the law”. For disputes over ownership civilization developed means of adjudication. For example: you own your car. If someone steals it, our society has created methods of proving ownership by means such as vehicle id numbers and state registrations. But for something as ephemeral as an idea, a story, or a song, it can be harder to prove ownership. Ownership of such intellectual property belongs to the creator of the idea, story, or song as a basic moral principle. But how does one prove ownership of a song? That is the purpose of copyright registration, a means of proving authorship and ownership of intellectual property.

The easiest way to secure your copyright is to register your works with the United States Copyright Office (USCO). To register a work with the USCO, one must submit three things: (i) registration application; (ii) deposit copies of the work, (iii) application fee.

The Copyright Office recommends registering your work as soon as possible. When, and how a copyright owner registers a work depends on whether that work is published under the law. The “under the law” phrase is important here because what you consider to be publication does not necessarily correspond with the USCO’s definition.

The Copyright Office’s definition of publication includes: the distribution of copies of a work to “the public by sale or other transfer of ownership, or by rental, lease, or lending,” or offering to distribute copies “to a group of persons for purposes of further distribution, public performance, or public display.” A public performance or display of a work alone does not automatically constitute publication. In the online environment, this can become confusing.

You can get copyright registration forms @ https://www.copyright.gov/registration/

You should also join one of the Performance Rights Organizations (PROs) like ASCAP or BMI and register your music with them, so you’ll get paid for performances and broadcasts of your works.

A history of copyright

Copyright began as protection for books. Before Gutenberg’s invention of the printing press in 1436, all books were copied by hand. The advent of movable type (Gutenberg’s innovation) caused a proliferation of books across Europe. It’s estimated that before Gutenberg’s printing press the number of books in all of Europe was only a few thousand. Within 50 years that number approached ten million. Such explosive growth created the need for protection of the rights of authors and publishers from the earliest literary pirates.

The world’s first copyright law, the Statute of Anne, was enacted in England in 1710. For the first time in human history, this law introduced the concept that the author of a work is the owner of its copyright.

Legislation based on the Statute of Anne gradually appeared in other countries. In 1790 the first US Congress exercised its power under the newly adopted Constitution to secure the rights of authors and inventors by passing an act almost identical to the Statute of Anne as the first American copyright law. But copyright legislation remained uncoordinated at an international level until the 19th century, and it only protected published works.

Significant US copyright revisions

The Association of Research Libraries’ website contains a comprehensive “History of Copyright in the United States”. A quick examination reveals that the number of actions and revisions has accelerated over time. From 1790 to 1909 there were only 7 acts or revisions. From 1909 to the end of the 20^th century there were 30. From 2000 to 2014 there were 74. This acceleration mirrors the growth of tech innovations from 1790 to 2014.

1831

revision of the Copyright Act: gives American authors the same protections as European authors and extends the term of protection for copyrighted works to twenty-eight years with a possible fourteen-year extension.

1870

revision of the Copyright Act: moved the administration of copyright registrations from district courts to the Library of Congress Copyright Office (now called the USCO).

1886

Berne Convention: introduced mutual recognition of copyright between nations and promoted the development of international standards for copyright protection. The Berne Convention does away with the need to register works separately in individual countries. Though it took the US 102 years to formally adopt it in 1988, it now covers almost all major countries (including over 177 of 195 nation states of the world).

1891

International Copyright Treaty: Because nineteenth century American copyright law applied only to American publications, European authors were unable to profit from publication and sale of their works in the US. In the 1880s cheap books (not protected under US copyright) flooded the American market. By 1890 authors, publishers, and printers’ unions joined together to support an international copyright bill.

1909

Revision of the US Copyright Act: broadened the scope of categories protected to include all works of authorship (including music) and extended the term of protection to twenty-eight years with a possible renewal of another twenty-eight.

1976

Revision of the US Copyright Act: addressed technological developments and their impact on what might be copyrighted, how works might be copied, and what constituted an infringement of copyright as well as the anticipated adoption by the US of proposed revisions to the Berne Convention. It extended the term of protection to life of the author plus 50 years (and to 75 years for works for hire). This revision, codified for the first time the fair use and first sale doctrines, while extending copyright to unpublished works (in the US). It also established the following four parameters of fair use: (1) purpose and character of use, (2) nature of the copyrighted work, (3) the amount and substantiality of the portion used in relation to the whole, and (4) the effect of the use on the potential market.

1988

Berne Convention: The USA became a Berne signatory in 1988, providing greater protection for creators, new copyright relationships with twenty-four countries, and elimination of the requirement of copyright notice for copyright protection.

1992

Amendment to Section 304 of Title 17: Congress amended Section 304 of Title 17 making copyright renewal automatic.

1996

World Intellectual Property Organization (WIPO): Conference (comprised of Delegates from 160 countries) adopted a statement ensuring two treaties would “permit application of fair use in the digital environment.”

1998

Sonny Bono Copyright Term Extension Act: extended protection from life of the author plus fifty years to life of the author plus seventy years.

1998

Digital Millennium Copyright Act (DMCA): implemented the WIPO Internet Treaties; established safe harbors for online service providers; permitted temporary copies of programs during computer maintenance; made miscellaneous amendments to the Copyright Act, including amendments which facilitated internet broadcasting, aka “streaming”.

2006

Copyright Office Report on Orphan Work: (An orphan work is a work whose owner is unidentifiable.) Responding to a 2005 request from Senators Orrin Hatch (R-UT) and Patrick Leahy (D-VT), the USCO undertook a review of the orphan works problem and issued recommendations based on its review. The USCO report proposed requiring a Copyright Timeline, a reasonably diligent search before designating a work as orphan, limitations on remedies available to plaintiffs upon showing a reasonably diligent search by defendants, and an attribution requirement when using works reasonably believed to be orphaned.

2008

WIPO Broadcasting Treaty: In June 2004, WIPO began deliberating a Broadcasting Treaty that afforded broadcasters economic rights akin to copyright protection for up to 50 years. A revised draft was issued in 2006, when various countries (including the US) sought to exclude webcasting from the treaty. After postponing discussions in 2007, the treaty became the focus of the WIPO Standing Committee on Copyright’s 2008 meeting in Geneva.

2018

The Music Modernization Act: aims to help songwriters earn fairer compensation for performances of their work through three key provisions:

(1) Reforms rate court by replacing a single rate court judge for each PRO with different judges randomly assigned to each rate-setting proceeding.

(2) Amends Section 114(i) of the Copyright Act allowing rate court judges to consider royalties paid to recording artists when determining what streaming services will pay songwriters for the same performance.

(3) Replaces the bulk Notice of Intent (NOI) process with a Mechanical Licensing Collective (MLC) to collect and distribute mechanical royalties for digital downloads and interactive streams, by adopting a “willing buyer, willing seller” standard for mechanical royalties. The MMA also creates federal public performance rights for pre-1972 recordings (CLASSICS Act) and allows SoundExchange to pay record producers directly (AMP Act).

Today’s struggle for artist rights is not unique. It’s just another in a long series of conflicts between those who create things and those who want to profit from the creations of others.

During our lifetimes we’re witnessing the most extensive technological change in history. In today’s environment the proliferation of digital copies, as well as streamable and sharable versions of musical works dwarfs the spread of books in 15th century Europe that led to the world’s first copyright law.

Copyright and technology are inextricably linked. US copyright laws are frequently revised in response to technological changes. Now we must deal with AI generating derivative works at unprecedented rates. Tech innovations are disruptive. Techies proudly refer to themselves as disrupters. AI is the most disruptive technology yet developed. If history is any indication, this is an era in which broader, more secure copyright laws are essential to protect the rights of thinkers, writers, visual artists, musicians, and visionaries! For the foreseeable future we will need the most extensive copyright protections humans can devise. The last thing we need is the “deletion” of IP laws!

If you are interested in the Local 802 A.I. committee, please send an e-mail to Local 802 Recording Vice President Harvey Mars at hmars@local802afm.org and A.I. Committee Chair Jerome Harris at jeromeharr@aol.com. Ken Hatfield has been a member of Local 802 since 1977. Send feedback on Local 802’s A.I. series to Allegro@Local802afm.org.