Marsha Cadogan is a Ph.D candidate at Osgoode Hall and is taking the Intellectual Property Theory course.
Personality interest in Music Copyright – Commentary on Professor David D. Troutt’s article “I Own Therefore I Am: Copyright, Personality, and Soul Music in the Digital Commons” (Professor Troutt’s article is forthcoming in the Fordham Intellectual Property Journal.)
Troutt’s article critiques the failure of U.S Copyright laws and dominant players in the music industry to protect the personality interest of the American music author. Drawing heavily from the experiences of African-American musicians from the late nineteenth century to present, the article chronicles how authorial personality is undermined; even in the advent of the 1909 Copyright Act, its subsequent version in 1976 and is continually subverted by musical intermediary interest and music copyright jurisprudence. He argues that the digital commons has the potential of recognizing and rewarding both the music authors’ personal and utilitarian interest (economic motive). The general thrust of Troutt’s commentary is applicable to the ongoing music copyright debate amongst calls for reform.
Hegelian theory on personality forms the base of Troutt’s reasoning on the importance of recognizing the personality interest in musical works. Personality, according to Troutt’s interpretation of Hegelian theory, is that which struggles to give itself reality. Intellectual property is a manifestation of one’s personality; this justifies the compensation of authors for the “expression of their personality”. Recognition of the author’s personality interest is however missing, he argues. Personality interest includes the dignity lost to exploitation but also, as he argues, the emergence of resistance and resourcefulness in the artist.
Central to Troutt’s argument is the prominence of the utilitarian interest in the U.S music copyright experience which has facilitated “appropriative harm” to music authors. Appropriative harm is defined throughout his commentary by reference to historical and current observations on the plight of music authors. Inclusive in his references are, the misappropriation of ownership of composition to white artists, the repackaging of African-American jazz, blues and other musical forms to suit the mainstream tastes of the white music audience, minstrelsy, the misappropriation of African-American spirituals to white authors, the non-recognition of performance and sound recording rights until the 1976 U.S Copyright Act and the continual lack of creative control in one’s musical work. Troutt also points to copyright formalities in the 1909 Copyright Act such as the registration requirement, which led to many musical works being unprotected due to lack of know-how in obtaining registration and/or illiteracy – a requirement that existed until 1976 when the U.S Copyright Act was amended. The control of copyright in the author’s work by record companies (via work for hire contracts), low fees for live performances, denial of opportunities to record to black musicians all served, Troutt argues, to an undermining of the personality interest of the African-American musician by appropriating as property the copyright in their work to others. The article also identifies digital sampling and peer to peer file sharing between consumers as evidence of a loss of control over the music authors’ copyright (inclusive of the personality interest). Loss of dignity and exploitation through appropriation and lack of freedom to control the creative direction of one’s musical work are all central themes within Troutt’s assertion of authorial personality.
Read critically, the article chronicles the grievances of many musicians in U.S music copyright through an articulation of their personality interest – that aspect of the author’s expression which fails to be adequately recognized in the music industry. Arguably, the African-American experience parallels that of many other music artists who have insubstantial bargaining leverage in the music industry. A reasoned argument can therefore be made that musicians who lack leverage in the music industry often see their personality interest un-elevated. Troutt cites many jazz and rhythm and blues musicians who were not credited for their work or whose compositions were siphoned off as someone else’s. Across all music genres and irrespective of race, there continues to be many artists who, despite copyright legislation, lack control of the copyright (and emphatically the personality interest) in their work – an issue exacerbated through standard recording and music publishing contracts that favor the latter companies’ interest at the expense of the musician.
The increased importance of the digital commons and the rise of “entrepreneurism” in the artist (as a resistance to exploitation from record companies and other music intermediaries) is posited by Troutt as significant factors capable of elevating the personality interest to the same platform as the economic interest. A number of artists have either started their own record label or have bypassed distributive intermediaries and released their albums directly on line. According to Troutt’s article, copyright reform proposals that give the music author control over the production and digital distribution of his music should be encouraged as by doing so dignity, recognition and creative control – all of which are elements of the artist’s personality interest, will be recognized along with the utilitarian component (economic incentive).
How feasible is it to strike a balance between elevating the personality and utilitarian interest of the artist and the dissemination of music to the public in the current digital arena? This continues to be debatable given unauthorized peer to peer file sharing networks that may thwart the promotion of the personality interest (as identified by Troutt) of the musician. Also, if peer to peer file sharing is legally monetized as is the current trend (Apple ITunes for example), is the personality interest recognized – who benefits? Is it the author or the record companies, music collective societies and music publishers? For musicians who own their own record labels and use the digital commons, recognizing the authors’ personality and economic interest may seemingly be more plausible than for those who are wholly dependent on music intermediaries. Troutt’s argument bears much credence, the pragmatics however remain unclear. No logistics is provided on a music copyright reform that can promote both the personality and utilitarian interest in a musical work. Even the entrepreneurial independent artist who bypasses a reliance on the five major record labels and uses the internet to promote his music still require intermediaries to manage, distribute (inclusive of licensing rights to his musical work) and market his music and merchandise; therefore losing some form of control over his work. Given the diverse players and interest in the music industry it remains doubtful whether the personality interest of a musician can be promoted to the level articulated by Troutt, notwithstanding technological changes and the rise of entrepreneurism amongst musicians. Perhaps this explains why music copyright reform proposals that seek to legitimize music downloads on a standard basis fail as Troutt acknowledges, to fully recognize the personality interest in music copyright.