Kanye West does not shrink from controversy, and he recently took to Twitter to lend his voice to what he perceives as the unfairness of record publishing deals, and to share his vision about what such deals should look like going forward.
At the heart of West’s tirade against the music industry, which comes amid his own ongoing legal battle against record labels, is a demand that artists gain greater control over their music copyrights.
In a series of tweets titled “NEW RECORDING AND PUBLISHING DEAL GUIDELINES,’” West listed seven guidelines that labels should follow vis-a-vis their contracting practices with artists. The first two guidelines in particular address the economic implications of West’s proposal:
- First, “artist owns the copyright in the recordings and songs and leases them to the record label / publisher for a limited term.”
- Second, “record label / publisher is a service provider that receives a share of the income for a limited term. The split can be 80/20 in the artists favor.”
This framework is distinct from current contracting practices, in which record labels own copyrights and masters and pay artists royalties based on negotiated terms. While Twitter’s 280-character Tweet constraints hardly allow for a robust discussion of the complexities of music copyright law, West has ignited a discussion and debate that may reshape how artists negotiate their contracts within the music industry and whether record labels retain the bargaining power to keep artists at the table. In fact, this debate is well underway, as high-profile copyright disputes between artists such as Taylor Swift and record labels play out in courts of law and public opinion.
The Basics of Copyright Law in the Music Industry
There are two distinct components to music copyright: the sound (also referred to as “master”) recording, and the composition.
- The composition is a musical work, such as a melody, which may—but does not need to—include lyrics. For a composition, copyright begins at the moment of fixation, such as when the music has been put down on paper or stored on a computer hard drive
- The master recording is the recorded performance of the composition. According to the U.S. Copyright office, the copyright for master recordings is created as soon as “a sound recording is fixed, meaning that the sounds must be captured in a medium from which they can be perceived, reproduced, or otherwise communicated”. This may be “in a digital track, disk, tape, or other formats.”
In some cases, the copyrights for a composition and related master recording belong to the same person—if, for example, one person writes and records a song.
However, in the real world of the competitive music industry, it is almost always record labels, and not artists, that control copyrights to master recordings, which is the issue that has drawn West’s ire.
Traditionally, when an artist signs a record deal, the artist assigns the copyright of their recordings to the label via their contract. This means they no longer own them and only have a right to royalties per their contract. Even if an artist leaves a record label, the copyright stays with the label. West suggests a new standard in copyright ownership, pursuant to which the artist maintains copyright ownership and leases the copyright to a label for a defined term.
Of course, the complexities of music copyright law aren’t best addressed on social media networks. However, by surfacing issues via Twitter, West has catalyzed a conversation.
Although the basics of music copyright law may not change anytime soon, contracting practices between record labels and artists may start evolving—with the balance of power shifting to artists, especially for artists like West who have considerable clout. For example, Taylor Swift struck a new deal in 2018 with Republic Records / Universal Music Group in which she reportedly will own her master recordings for all time. As the music industry continues to be disrupted by streaming services and live-performance cancellations due to COVID-19, perhaps Kanye West raises a fair point to revisit the baseline for these negotiations as the industry (and profitability) evolves.
It is notable that the Section 203 of the U.S. Copyright Act that went into effect in 1978 offers hope for artists with considerable staying power, providing that recording artists can, under certain circumstances, send notices of termination to record companies in order to regain ownership of their copyrights 35 years after their release. Two class action lawsuits are currently underway in which artists are suing Sony Records and Universal Music Group, alleging that, despite termination notices having been sent, the record labels have refused to relinquish copyrights.