Compulsory Licensing & Chilling Effects

This morning, music industry attorney Dina LaPolt and Aerosmith front man Steven Tyler submitted written comments to the USPTO on the subject of compulsory licensing for remixing and sampling musical works. At issue is a green paper submitted by the US Department of Commerce Internet Policy Task Force that copyright reform could include a measure that would effectively mandate artists license their works whether they want to or not.  In short, any entity from a creative, young upstart to the Ku Klux Klan could legally sample and/or remix these works, and the original creators would have no say in the matter.  The compulsory license strips one of the fundamental properties of copyright, the right of choice, from the artist; and this is why Tyler and LaPolt were supported with letters from other creators including, Don Henley, Joe Walsh, Sting, Ozzy Osbourne, and Mick Fleetwood.

All of the artists who wrote letters made the central point that collaboration and licensing among creators is and has been working very well to the benefit of both creators and the public; and they insist that no change to copyright law in this regard is required.  It seems fundamental to the concept of fairness and decency that an artist should have the right to deny the use of his or her work in a form that he or she feels betrays its initial purpose or meaning.  If the artist creates from a place that is deeply personal or politically motivated, it is easy to see — indeed we have seen — how a permissionless environment invites degradation that is a disservice to cultural diversity.  A black artist writing about black issues could not stop a racist hate group from appropriating his music as long as they paid the license.  A politician who opposes everything an artist ever stood for could turn that artist’s work into his campaign soundtrack.  Or, on the simplest level, as we’ve seen in the case of GoldieBlox and the Beastie Boys, artists who simply don’t want their works used to sell products or services would lose this basic right.

LaPolt offers a compelling analysis that the potential misuses I refer to above can amount to a chilling effect on artistic expression; and those who consider copyright anathema to free speech should consider what she’s saying.  Steven Tyler and other artists who wrote letters confirm that money is not the issue.  If an artist doesn’t want his or her work used in a certain way, no amount of money will matter.  What would instead happen, suggests LaPolt, is that artists will likely choose not to produce certain works, knowing that they can be lifted and used in contexts that betray their message or meaning. I would certainly agree that the more powerful material — work that might confront a serious social issue, for instance — would be the stuff an artist would reconsider in such an environment. By contrast, the counter-argument we often hear is that artists unwilling to license their works for certain derivative uses has a chilling effect on free speech; but I happen to think that’s stretching free speech to coddle opportunists who are either too lazy or not talented enough to create their own thing.

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