Rewind to the first semester of the final year – I instantly regretted not taking part in more of the societies and other activities that the university had to offer during the earlier years. The next thing I know, I'm sitting in a class full of music-law enthusiasts. Taking me back to my music days was the discussion of music segments. I was introduced to the interplay of copyright in music, as well as cross-border disputes. The introduction to music law was a reminder that the road to law is not the end of your non-legal passions. In this introduction, I highlight some of the key themes that keep the music industry in tune.
What is music law?
Music law governs the activities of the music industry. The music industry is composed of many professions, including musicians, producers, music publishers and record labels. More commonly, music law prevents others from making copies of original work. The person, or author in law, who writes the music has a legal right to it. While it is possible to obtain assignment copyright or license, an agreement is necessary to ensure the author is not at risk of a copyright infringement claim.
To all you TikTok users out there, use your sounds with caution. Using unlicensed music could result in your video being taken down. In the UK, the Copyright, Designs and Patents Act 1988 (CDPA), protects literacy, dramatic, musical, or artistic works. For example, composers and songwriters share the rights to both the composition and lyrics. The good thing about intellectual property law is that the idea is expressed in a tangible form. In the case of sound recordings, protection is given for a duration of 70 years from publication or distribution to the public.
Use of any duration of a sound recording will constitute an infringement unless a license has been obtained. As fashion trends from the '90s and beyond have made a return, so too is the rise of sampling – with the rise of technology, this area of law only gets more challenging. Many lawyers advise their clients that the risk is just not worth it – owing to the increased costs to buy such rights, as well as the struggle to identify the rights owner. In situations where a client is alleged to have used or sampled others’ work, lawyers will be brought in to defend, commonly bringing a fair use defence.
Contracts will usually stipulate who has the right to publish and perform music. The role of a music lawyer will involve assisting clients to negotiate agreements for music publishing and various types of licensing. Equally, they can be responsible for drafting live performance agreements to allow the parties to agree on specific details to satisfy a live audience. This extends to the broadcasting of musical works. To illustrate, a radio will typically pay the owner for non-exclusive rights to their work. Such rights will allow the radio to broadcast the music to their listeners – a common way that artists get paid on music streaming platforms– ‘pay per play'. One positive is that the rise of streaming platforms drives consumers towards an ethical way of listening to music, instead of music piracy on torrent sites.
Late night dancing
The Licensing Act 2003 (specifically section 1(1)(c)) was introduced to ensure that entertainment (ie, the performance of live music and playing of recorded music) is licensed. As it stands, post-covid restrictions, nightclubs and other entertainment venues are due to reopen past 10:00pm and without the need for a scotch egg. Years before this, deregulations of the Licensing Act 2003 were introduced. The Live Music Act 2012 amended the Licensing Act 2003 to now allow venues to host live music performances between 8:00am and 11:00pm for parties of under 500 people, without the need for a license. Events that fall within the prohibitions of the act are often referred to as ‘unlicensed events’ or ‘illegal raves’. Lawyers in this field are responsible for advising businesses and individuals on how to obtain licenses and, where necessary, engage in disputes when licenses are refused or revoked.
The criminalisation of repetitive beats
Margaret Thatcher's well-known illegal rave ban has an important part to play in the music industry. The introduction of the Criminal Justice and Public Order Act 1994 (CJPO) characterised "the emission of a succession of repetitive beats" as the definition of a rave. Section 63(1) CJPO 1994 also refers to such unlicensed events "as a gathering on land...of 20 or more persons…at which amplified music is played during the night". If anything, it has redefined the way music is produced, played and the venues in which it is heard - it is the evolution of club culture that can go on for days. With this comes the challenge of sampling, as I previously mentioned, as well as the opposition to the Criminal Justice and Public Order Bill. To confirm the non-repetitive nature of electronic music under the act, the production of electronic music has developed to include varying patterns of drums and other percussive instruments in a single track.
That said, there are many other areas of law that apply to the business of the creation, sale, performance, and streaming of music – for example, contract, immigration, tax, and public health. Stay tuned to this series as I look closely at the music industry in a legal context.