It really is your music

Copyright considerations for music professionals

Volume 116, No. 12December, 2016

David Newhoff

Copyright and the protection of intellectual property in the digital age are priorities for Local 802 and the AFM. Over the next four months, copyright expert David Newhoff will contribute this guest column, which will discuss the history and importance of copyright law in America, as well as introduce readers to the stakeholders who are involved in amending and reforming it.

– Political Director Christopher Carroll

Photo: Northern Stock via

Photo: Northern Stock via

I’ve always considered music the purest art form because it allows such a broad range of expression without requiring literal or representational elements. That a particular arrangement of sounds or an interval between specific notes can trigger visceral responses in the listener is pure magic to me. Music makers are the coolest alchemists in the world, and I don’t say this solely because I sing off key and play guitar like I’ve got hooves.

We need only glance at the outpouring of emotion in response to those we’ve lost this year to recognize that most of us feel in some way that musical artists are rare gifts to the world. Just to consider the contributions of David Bowie, Prince and Leonard Cohen alone implies such a diverse anthology of cherished works that I remain baffled by – and concerned about – the cynical devaluation of music in the digital age. The “free culture movement” that began with outright piracy spawned a larger rationale among many that artists are somehow arrogant or greedy to consider their works a kind of property. This is wrongheaded, both functionally and philosophically. Copyright is traditionally viewed as an incentive, a bargain between creator and consumer, in which temporary exclusivity is granted to the author in order to provide an incentive to distribute his or her works. This premise has been undermined in recent years due to the fact that newer artists are clearly willing to distribute their music on free platforms and are often resigned to the fact that recordings of their music are no longer a viable source of sustainable revenue.

It is certainly true that copyright law does not fully serve the independent or new musical artist today. Legal enforcement via the courts is cost-prohibitive for most individuals, and extra-legal enforcement through mechanisms like DMCA takedown requests do little other than to waste an artist’s time. But these are the conditions of the moment. There are people trying to work on the problem. For instance, the idea of a copyright small claims court has been in discussion for the past few years. Although the fight to fix the DMCA to protect creators online is not an easy one – corporations like Google that benefit from the status quo have almost unlimited resources – it is still not impossible.

In the meantime, musical artists should not allow the pundits, the academics, and the corporate interests to undermine the first principle of copyright – that your music really is yours. For years, I have listened to non-creators misrepresent the intentions of artists in order to undermine the property right aspect of copyright. Perhaps more than any other kind of creator, musicians readily admit that they feel an imperative to compose and perform – that they do it because they must, regardless of any financial reward.

As consumers, we can choose to be grateful recipients of the works produced by that imperative or we can be cynical abusers. And despite all the rhetoric that seeks to normalize the latter, I believe most people instinctively understand that it is your music – that it must be yours before it can be ours. If this were not the case, we wouldn’t appreciate the many distinctions among Bowie, Prince and Leonard Cohen or between Slava Rostropovich vs. Yo-Yo Ma playing the same work by Bach. The differences in expression are exactly what copyright is meant to protect and even to inspire.

Optimistically, I believe copyright law can once again be reshaped around the contours of new technologies and new market forces in order to protect creators, but the challenge is real. The last copyright act was more than 20 years in the making, and today technology drives market change much faster than it did in the middle of the last century. Meanwhile, artists themselves must continue to insist upon the fundamental right of ownership in the fruits of their labor. It is the underpinning of all labor rights that if your mind and body are your own, then what you produce with mind and body must also be yours. Nobody should doubt that for a minute.

David Newhoff is a writer, copyright advocate and blogger for The Illusion of More, a blog that is part original editorial, part investigation into the world of copyright protection and the digital ecosystem. The blog is essential reading for people particularly interested in copyright and intellectual property, and can be found at