called the music industry. How did rock, or any kind of music for that matter, get commodified in the form of a sound recording and distributed in the first place? What legal and economic mechanisms were put in place so that musical artists would be able to reap the benefits of their creations—their intellectual property—and thereby devote their lives to making music? How did technological developments in sound recording and storage media transform the production, distribution, and consumption of rock? What role did radio, television, and print media have in the explosion and sustained presence of rock, making it an essential part of U.S. culture? And how were technological advances in musical instruments, including synthesizers and samplers, catalysts for new musical sounds, ideas, and styles? We will explore the answers to these questions and more in this chapter.
COPYRIGHT
The foundation of the U.S. music industry is based in copyright law, which gives the exclusive right to the composer and recording artist to reproduce and sell music; they may then assign that right to a publisher or record label in return for payment called royalties. Every sound recording has two sets of rights associated with it: (1) the musical composition (the abstract melody, chords, and lyrics) and (2) the recorded performance, that is, the sound captured in a vinyl single or album, cassette, compact disc, or other digital format (see figures 1 and 2).
If the Beatles record the Chuck Berry composition “Roll over Beethoven,” then Chuck Berry should receive a royalty payment for each copy of the Beatles record that is sold (two cents until 1978; 9.1 cents in 2019). Berry, the composer, would typically split his royalty payment with his publishing company, the organization that registers his composition with the U.S. Copyright Office and looks after collecting the royalties. The Beatles version is called a cover. Chuck Berry does not have to give his permission—the Beatles can use a “compulsory license,” which still requires that Berry receive royalty payments (called mechanical royalties).
If Jay-Z records his composition “Can I Live,” consisting of him rapping over short looped excerpts (called samples) of Isaac Hayes’s recording of “The Look of Love,” then Jay-Z must get permission from Hayes (or more probably his record label) and negotiate payment, either a flat fee or a royalty per record sold. Hayes (or his label) has the right to refuse. (The owners of the rights to Beatles recordings—Sony/ATV, eventually reverting to Paul McCartney—do not allow samples.) Additionally, because Isaac Hayes’s recording was a cover version of a composition by Burt Bacharach (composer) and Hal David (lyricist), Jay-Z must also share composer credits and royalties with them.
Bacharach and David registered “The Look of Love” with ASCAP (American Society of Composers, Authors and Publishers), one of the two major music performance rights organizations (the other is BMI [Broadcast Music, Inc.]), which licenses compositions for public performance, which is protected by copyright law. These performance rights organizations collect fees when works by their composers are played on the radio and TV, or at bars and other live music venues, and they distribute those fees as royalties to their artists. ASCAP lists four writers for “Can I Live” who would capture those royalties: Jay-Z (Shawn Carter); his producer, Irv Gotti (Irving Lorenzo); Burt Bacharach; and Hal David. ASCAP also lists three publishing companies, meaning that the various writers registered their songs (“The Look of Love” and “Can I Live”) with different publishers to look after the benefits of copyright.1 Separate from composer’s royalties, record labels negotiate with their recording artists for the royalty percentage that they will earn as performers per recording sold, and they also control permissions to sample the recordings of their artists.
A musical arrangement—the style in which an abstract composition is rendered in performance by instrumentalists and vocalists—is not copyrightable. A federal court decision in May 1950 set the precedent for the rock and roll era, ruling that Evelyn Knight’s nearly identical cover version of “A Little Bird Told Me” (on Decca Records) did not violate the copyright of the original version recorded by Paula Watson (on Supreme Records). The composer Harvey Brooks received the usual royalties from the cover version, but nothing else was due to him or anyone else involved in the original recording, including vocalist Watson, the arranger, or Supreme Records (Billboard 1950).
There is an important distinction between musicians reproducing or imitating a musical arrangement (or vocal style), on the one hand, and sampling a recording, on the other hand. (The original reference is to a process of digitally sampling an analog electronic signal.) The former (reproducing), as in the guitar introduction on the Beach Boys’ “Fun, Fun, Fun,” which was a close reproduction of Chuck Berry’s introduction on “Johnny B. Goode,” did not require permission or royalty payment; Berry’s solo would be considered as part of the arrangement and not the composition. If reproducing a guitar solo were a matter of copyright, then Berry would in turn owe something to Louis Jordan’s guitarist Carl Hogan, whom Berry has credited as his influence (e.g., the introduction to Jordan’s “Ain’t That Just Like a Woman”). Sampling, on the other hand, requires explicit permission from the copyright holder of the recorded performance and negotiated payment.
Because composers (and their publishers) control the right to broadcast and publicly perform their music, and because they do not have the time or means to monitor such usage themselves, they register their compositions with ASCAP (formed in 1914) or BMI (formed in 1939). Typically, ASCAP and BMI would offer blanket licenses to the various businesses (radio stations, concert venues) so that the outlet would pay a single fee for the right to play music by any composer registered with ASCAP or BMI. Based on radio playlists and concert lists, ASCAP and BMI would distribute parts of their licensing fees to the various artist copyright holders.
Article 1, section 8, clause 8, of the U.S. Constitution (1789) gives Congress the power “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” The Copyright Act of 1790 was the first law of its kind enacted in the United States, granting protection to authors of books, maps, and charts for fourteen years, with the possibility of renewal for another fourteen years. The act has gone through many revisions to keep up with the times. The first general revision (1831) added printed sheet music and extended the protection period to twenty-eight years. The second general revision (1870) added artworks and centralized registration at the Library of Congress. Composers gained limited protection for the public performance of their music (primarily in music theater) in 1897. The third general revision (1909) extended the renewal period to twenty-eight years and added two provisions that would have a major impact on the industry: public performance for profit, which would become a major source of income for composers of copyrighted music; and compulsory licensing, which allowed anyone to make a new recording of a copyrighted composition (at two-cents royalty per item sold). Up until 1972 musical works had to be registered in the form of printed sheet music. In 1972 sound recordings became eligible for submission.2
THE RECORDING INDUSTRY
All sound-recording devices are based on the principle of capturing sound waves. In the acoustic era (until 1925), sound traveled into the wide end of a horn and set a stretched membrane at the narrow end of the horn into motion, transmitting the vibrations to a small needle (called stylus) attached to it, which drew traces into a malleable form (at first tin foil, then wax coating on a cylinder or disc) in concentric circles. This is analog recording: a continuous direct trace of the sound waves. For playback the captured traces were tracked by the needle, which set the membrane in motion, which in turn sent out sound waves through the wide end of the horn. Initially, cylinders, and then discs (in the 1890s), were the storage media sold by record companies, which also sold the machines to play them back.
Before sound recording, music was sold as a material commodity in the form of sheet music (containing music notation and lyrics).3 Consumers would purchase and play the music on their pianos at home, singing along. In the mid-nineteenth century hit songs by songwriter Stephen Foster were selling between 50,000 and 130,000 copies. By the late nineteenth century a hit could sell a million or more copies; Charles K. Harris’s “After
