The following is a presentation of a legal case most relevant to the current operations of the Wixen Music Publishing company. Though the case of White-Smith Music Publisher Co. v. Apollo Co was tried in 1908, its outcome still affects the music industry. Apollo Co, a mechanical piano manufacturer, was accused by White-Smith Music Publisher Co of violating its exclusive rights by supplying instruments with perforated rolls for playing songs (White-Smith Music Publishing Co v. Apollo Co.). The Supreme Court then took the defendant’s side, concluding that the perforated roll was not a copy of a musical work. Thus, the decision was unfavorable for music producers and publishers.
Later, however, in adopting the 1909 Copyright Act, US Congress sought to provide at least some compensation to copyright holders for works that were mechanically played. Unlike musical works (objects of copyright of the composer and the author of the lyrics) that received legal protection in 1909, sound recordings were protected only in 1971 under the Sound Recording Act of 1971. Before that the creation of sound recordings was considered a mechanical, non-creative process) (Mathieu, 2019). However, the protection granted to sound recording rights in 1971 was not complete.
Firstly, the producers of sound recordings did not have the exclusive right to reproduce their phonograms publicly (only the consent of the copyright holder to the musical work was required). Secondly, the exclusive right was limited to such an object as “actual sounds fixed in the recording,” (Sound Recording Act, 1971), which significantly narrows the range of violations against which protection is provided (Sound Recording Act, 1971). Finally, after the 1908 case of White-Smith Music Publisher Co. v. Apollo Co, the concept of automatic licensing was introduced for musical works.
Today, the ruling from the White-Smith Music Publisher Co. v. Apollo Co (1908) case still directly impacts the relationship between producers of mobile ringtones and music publishing companies. Ringtones, derived from popular songs, are now in great demand as most owners of mobile phones prefer customized ringtones rather than default sound. On the way to becoming a ringtone, a musical piece goes through the following chain: publisher of the original musical work – producer of the sound for a ringtone – mobile company – consumer. However, it is debatable whether companies converting music to ringtones and selling them to mobile phone companies should negotiate with copyright holders, or if these cases fall under the automatic licensing mechanism (Peter, 2016). Automatic licensing provides for fixed royalties and stipulates that the base melody or the essential character of the work cannot be changed.
Wixen Music Publishing, being one of the best music publishing companies, will sooner or later be forced to deal with the ringtones based on its music. Presently, most ringtones fall under automatic licensing, ringtone makers enter into negotiations with music publishers in order to obtain the rights to create ringtones and sell them to mobile phone companies. Fortunately for music publishers, the cost of such licenses is much higher than the legal requirement for automatic licensing (Adewopo, 2017). If the ringtones are legislatively defined as derivative works, it would mean tens of millions of dollars of lost income for music Wixen Music Publishing, as automatic licensing does not apply to derivative musical works. To sum up, the conflict between music publishers and derivative use of their work that started at the beginning of the XXth century is still not resolved.
References
Adewopo, A. (2017). Analysis of copyright in digital music: Implications for new media licensing for ringtones under the Nigerian Copyright Act. The Gravitas Review of Business & Property Law, 8(1), 1-23.
Mathieu, J. K. (2019). “The Injustice of the Thing”: Negotiating the song market in the US copyright debates of 1906-1910. Popular Music and Society, 1-14.
Peter, K. Y. (2016). The copy in copyright. In J.C. Lai & A.M. Dominice (Eds.), Intellectual property and access to im/material Goods (pp. 65-94). Edward Elgar Publishing.
Sound Recording Act, Pub. L. No. 92-140, 85 Stat. 391 (1971).
White-Smith Music Publishing Co. v. Apollo Co., 209 U.S. 1, 28 S. Ct. 319, 52 L. Ed. 655 (1908).