Bob Kohn is the author of Kohn On Music Licensing, an acclaimed treatise that USA Today termed "the bible on legal issues in the music world." Kohn founded EMusic.com (formerly NASDAQ: EMUS), the pioneering music download service, and RoyaltyShare, Inc., a leading web-based royalty service provider for record companies, music publishers, and book publishers. He is the co-inventor of a patent covering a web-based royalty system and user interface. Kohn recently spoke with Wolters Kluwer about some of the music licensing trends and issues of the day, and those looming on the horizon, as technology and distribution methods evolve.
What recent trends in your field should people pay most attention to?
The transition from the physical distribution of musical recordings (e.g., vinyl albums and CDs) to digital distribution, and more recently from the permanent digital download of recordings to the streaming transmission of them, is nearly complete. It took some time for the Copyright Act to catch up with these changes, but the Music Modernization Act of 2018 was a major step in the direction of efficient music licensing for the digital era. As the 2018 Act takes effect, the industry will be looking closely to see how well it achieves its objectives.
What do you expect will be the biggest pain point for artists and licensors over the coming year?
While licensing the download and streaming of the songs underlying sound recordings to digital music services has been largely resolved by the 2018 Act, what remains to be addressed are how the sound recordings themselves are licensed. Although digital music services now enjoy an efficient means of licensing musical works, the licensing of sound recordings remains problematic. In addition, sound recordings still don’t enjoy the full protection of copyright law, as their owners have no right to collect fees for the broadcast of sound recordings on terrestrial radio. Moreover, the licensing of music and recordings in audiovisual streaming services, such as YouTube, could also benefit from standardization to better meet the needs of all concerned.
How has the day-to-day practice of music licensing changed since you started?
While the transition from physical distribution to digital delivery has dominated industry attention, many aspects of music licensing—such as licensing music in motion pictures and TV programs and in radio and television advertising—remain much the way it was 50 years ago. Likewise, the problem of "split copyrights"—copyrights with multiple co-owners—continues to make problematic many licensing negotiations.
Yet, digital technology has not only affected the way recorded music is distributed, but the way it is produced. The ability to take digital samples from one recording for use in another has caused heated disputes concerning both the sampled recording and the musical work embodied in the recording. Fair use of copyright, which is a safety valve that allows music to be used license-free for news reporting, commentary, and criticism—including parody and satire—has also complicated the licensing process, as automated systems are unable to distinguish between an infringement and a legitimate fair use of copyright.
What do you enjoy most about your work?
Solving music licensing problems and copyright disputes often requires a metaphysical approach to the understanding of copyright law. That understanding, combined with knowledge of customs and practices in the music industry, makes the resolution of these problems and disputes both interesting and rewarding.
What do you find most frustrating or tedious?
The book contains a wealth of information regarding what music publishers typically charge for various kinds of licenses. While keeping these common fees up-to-date can be tedious, many readers find this to be one of the most valuable aspects of the book.
What continues to surprise you about your clients?
I am continually surprised at how some of the biggest music licensing problems can arise from of the smallest drafting errors—in both contracts and legislation.
What mistakes do you see often repeated in your field?
The imprecise use of terms of art is the most common mistake. For example, misuse of the term "grand right" has clouded the licensing of music for dramatic performance on the musical stage, on television, and in motion pictures. By appreciating that a "grand right" is derived from a musical production once known as a "grand opera" much confusion can be avoided. A grand right is thus a right in a musical play, not in any of the individual songs in the play; the grand right rests, therefore, with the owner of the play, not with the music publisher who may control the licensing of the individual songs in the play. Accordingly, if you wished to perform several songs from the show Phantom of the Opera dressed in costumes from the show, you would need a grand performance license from the entity that controls the musical play. If instead you wished to use the song Music of the Night as background music in a television commercial, you would need a license from the music publisher of the song.
Ultimately, for either use, you may also need the songwriter’s consent, but licensing is facilitated, and disputes can be avoided, by the precise use of "terms of art" developed to distinguish different forms of use—such as grand performance, small performance, dramatic or non-dramatic performance, and dramatic adaptation. These important "terms of art" are defined not by copyright law, but by music industry custom and practice. I cover common problems like this and others in a chapter entitled, The Language of Music Licensing.
Can you name a small reform that would make a big difference?
Widespread and assiduous use of improved unique identifiers (e.g., ISRC, ISWC, ISBN, ISAN, ISNI, etc.) and better metadata management.
Best advice for new associates or new partners?
Read Kohn On Music Licensing and feel free to call me if you have any questions.
Anything else our readers should know?
When in doubt, license.
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