Music Print License Approval vs Antitrust Law

[MDC29]

While compiling research data, I discovered what appears to be an extremely unfair discrepancy in the section of the copyright statutes that addresses a music publisher's right to deny permission for a musician to produce derivative arrangements of copyright protected song(s). I would be most appreciative of a response or any other definitive information and/or direction as to the issues and questions cited below.

Any musician, whether a celebrity or unknown, may legally record a CD, Tape etc. of his/her arrangements of nearly any copyright protected song(s), simply by procuring an easily obtained mechanical license with an application for a compulsory license and payment of the statutory fee. This process is easily accomplished through the Harry Fox Agency, which is essentially a clearing house for rights in New York.

However, if that musician then decides to self-produce print versions (perhaps based on public demand) of the arrangements he/she has recorded, the publisher or print rights administrator of the subject songs will, in nearly all cases, summarily deny permission to allow that musician to print and sell his/her arrangements. In essence, a musician can make a recording of a copyright piece of music, but he/she is not permitted to produce and sell a written or printed copy of the recorded arrangement.

The FAQS Section on the website of one major publisher actually states that they will generally deny permission for a musician to self-produce and sell arrangements, if they feel that person may produce a product that is similar or competitive to existing arrangements of the same song already being sold by that publisher.

From any reasonable business and/or legal perspective, such a denial certainly appears:
1) to deny the original songwriter or actual copyright owner of a new revenue stream.
2) to deny the consumer of a choice that is solely predicated on the consumer's decision as to product quality and merit.
3) to deny permission as an effort to directly or indirectly eliminate competition. That practice is clearly inconsistent with the spirit of the United States Antitrust laws, as those laws were supposedly enacted to maintain economic liberty and eliminate restraints on trade and competition.

I sincerely believe the above described publisher practice is monopolistic, in direct conflict and an egregious violation of the antitrust laws that perhaps, has not yet been challenged in the appropriate court of law. As yet, I have been unable to locate any reference data or existing cases that embody or address the above circumstances.

I would be most appreciative to anyone who can provide informative/definitive information or perhaps direct me to any available case law regarding the obvious intersection of the anti-trust laws and copyright and copyright statutes.

Thank you,
Dax

 

[divgradcurl]

I sincerely believe the above described publisher practice is monopolistic, in direct conflict and an egregious violation of the antitrust laws that perhaps, has not yet been challenged in the appropriate court of law. As yet, I have been unable to locate any reference data or existing cases that embody or address the above circumstances.

Of course it's monopolistc -- that's what a copyright (or a patent) IS -- a temporary monopoly granted by the government. The monopoly is limited -- there is fair use, there is that section that requires the copyright holders to sell a compulsory license in certain cases (that's what Harry Fox does), etc. -- but it is still a monopoly, and anything that is not restricted by statute, well, the rights holder can determine how and if he or she licenses those rights to others.

Because copyrights and patents are monopolies created and sanctioned by the government, there is no antitrust issue when people simply assert control over their copyright or patent. There can be antitrust problems when people misuse their government-sanctioned monopolies -- but simply refusing to license a copyright or patent is NEVER sufficient, in and of itself, to give rise to an antitrust complaint.

From any reasonable business and/or legal perspective, such a denial certainly appears:
From any reasonable business and/or legal perspective, such a denial certainly appears:
1) to deny the original songwriter or actual copyright owner of a new revenue stream.

Why do you say that? There is no law that says the copyright owner COULDN'T license the work such that someone could create a derivative work or publish their arrangements. The fact that the copyright owner, or their exclusive licensee, decides that they do not WANT to grant such a license is their decision. Maybe they think they can make more money in the long run by not licensing.

2) to deny the consumer of a choice that is solely predicated on the consumer's decision as to product quality and merit.

Nobody has a right to buy music. If an artist or record company produces an album you like, you may buy it -- but you don't have the right to tell them that you want to buy, say "Hey Ya," but sung by Bruce Springsteen instead of Outkast. If you don't like the music, don't buy it -- but you don't have a right to "have it your way."

And by right I mean legal right -- you can't go to court and force the artists and record companys to produce the music you want -- you can only vote with your wallet.

3) to deny permission as an effort to directly or indirectly eliminate competition. That practice is clearly inconsistent with the spirit of the United States Antitrust laws, as those laws were supposedly enacted to maintain economic liberty and eliminate restraints on trade and competition

As noted above, of course this is the whole point of copyright and patent laws to begin with -- to give the creator a limited monopoly in exchange for their sharing their work with the world.

Don't confuse copyrights as a whole with the compulsory license that the Harry Fox Agency sells. Congress has required that any songwriter who allows one artist to perform his music must allow all artists to purchase a license to perform the work -- thats the compulsory license, and it's found in 17 USC 115. But other than this statutory requirement (and a few other statutory limitations), the copyright holder is the owner of his rights, and may license them or not, to whomever they want or not, as he or she sees fit. That's just the way copyright law works. See 17 USC 106 et seq. for more on the rights of copyright holders, and the limitations on those rights.