Annie Kuo: Welcome back to Discovery, a UW Law podcast where we interview the law school’s distinguished guests and experts from around the world. On this episode, we welcome Kevin J. Greene, the John Schumacher Chair and professor of copyright law and entertainment law at Southwestern Law School in Los Angeles. He was recently on campus to deliver the Distinguished Shidler Lecture called, “The New Copyright Law Manifesto: A Roadmap for Racial Justice for Black Artists.” An outstanding talk that was not only entertaining but also disturbing as he recounted the stories of many artists like Jelly Roll Morton, Elizabeth Cotton, and Bessie Smith to George Clinton, and Lil Wayne, who are involved in the problem of expropriation of the creativity of marginalized peoples, not just an American problem, but a global one.
Professor Greene is a pioneer in the discussion around racial equity and intellectual property. He authored an article over two decades ago that now has spearheaded conferences on racial issues around intellectual property and has a whole cohort now of people working on these issues.
Welcome to the podcast. We're so excited to have you today.
Kevin Greene: Thank you, Annie. It's great to be here.
AK: Could you tell us about a metaphor involving Jelly Roll Morton? And how in your lecture abstract you mentioned this picture of him begging for royalty checks from his music producer and why that is a picture of the problem we're talking about today?
KG: Thank you so much—yes—and for that beautiful introduction. So, of course Jelly Roll Morton claimed with some justification that he actually created jazz. Now, of course, jazz wasn't created by one person, but he certainly is at the forefront of that. He played a lot of great music, including this song “The Black Bottom Stomp,” should we take a quick listen to it?
AK: Love to.
KG: So, that's a little bit of Jelly Roll Morton. And of course, I told you that I'm working on a novel actually about this whole issue because I'd like it to be accessible to people and not just people who read law journals that are very esoteric. And in the book, I have the ghost of Jelly Roll Morton kind of wandering around the streets of LA, where he ended up dying pretty much completely impoverished. This man who at the foundation, really, of jazz, was constantly writing his publisher, Mr. Melrose, for royalty checks that were due to him and those checks never did come in. And so he died of kind of ignominious debt there in Los Angeles as pretty much a pauper. He had worked at a nightclub and gotten injured there. And so this story repeats itself over and over again with these pioneers of the blues and jazz. And now even hip hop, right? If we look at the condition of people like DJ Kool Herc, and others who are at the foundation of hip hop, they also generally are not wealthy people. And so I say generally when you create a whole genre of music, when you create a whole innovation, you get lots of money, and you get lots of recognition. I'm thinking of all the tech people, your Bill Gates and your Musks and the like, who create and innovate these things. But that's not true of these African American pioneers in music.
AK: So, you raise the issue of a system that is like the title of your fantastical upcoming novel, “The Copyright House of Horrors.” Can you tell us a little about that copyright dynamics of the past that are unfortunately persisting here in the present?
KG: Sure. That's a great question. Copyright wasn't created in a way that really synced with the way that African Americans create. So black people come from Africa, obviously, and we're mixed with a lot of other things. But that was an oral tradition where, for example, things weren't written down, musical notation. It's an improvisational tradition going all the way back to Africa, all the way through jazz music, which is built on improvisation. And there are structural things about copyright law, which have made it a house of horrors, as I said for black artists, including the copyright requirement that works be fixed in a tangible form, they'd be written down of its musical notation, or recorded. The fact that the standards for originality are very low, which means that if you're highly innovative, like Jimi Hendrix, right, and I have a little Jimi Hendrix if you just want to hear two seconds of him here.
So, of course, copyright doesn't protect style. And so the style of playing in Jimi Hendrix is completely unprotected. Now, that's a good thing because other people can kind of go in his footsteps. But it's often a bad thing for the innovator, whether it's Bessie Smith, or George Clinton, or Jimi Hendrix. Styles are not protected. And so we see this now on Tik Tok with these teenage black young girls who are basically powering Tik Tok, the whole platform, in their dances. And so imitating their style of dances isn't protected, for example. And generally, copyright and black dance is a very poor equation for protection. So, those are some things.
We also have this notion of a compulsory license, which you might have heard of. And it basically says once anybody records a song and releases it to the public, anyone else can cover that song. Well, that's great, too, if we want more creativity, but it's often bad for the original composer and creator. So, Little Richard, for example, was very bitter that Pat Boone and others took his own “Tutti Frutti,” they sanitized it. He said they made it vanilla. And there's nothing he can really do about that. And the other thing I talked about in the piece, of course, is we don't have moral rights, which allow people to protect their personality interest in a copyright, which has caused all sorts of problems for performers. Copyright makes the distinction between the person who wrote the song and the performance. So, the person who sings on the record has very little rights under our system. And because black music production, cultural production, is really based on a performance ethos, it hurts them a lot. The performer often is completely cut out of any kind of royalty streams. So, that's been a massive problem for black artists over time.
AK: Right, there's so many of these modern copyright formalities are creating, as you mentioned, in your abstract a perfect storm for the re-disenfranchisement of black creativity today. You mentioned the collaborative nature of black music that is different from this romantic notion of there just being a single author. Elvis Presley came up in your presentation as a joint author on some of these copyright registrations. Could you tell us about the forced authorship credit that's part of those false copyright registrations?
KG: I can. Now this has been a continuing problem. But it's an ongoing problem in copyright law today. It's not just—I often tell people, I'm not just talking about something from the 1940s and 50s. I'm talking about an ongoing today problem. And also, it's all a today problem, even if it was 1930 because all those works are still under copyright. And all those works are still monetized and generating income for the peoples who are the rights owners, often not the people who created the music often, almost always, right? So of course, this is Elvis.
That's Elvis’s “All Shook Up,” one of his biggest hits. And of course, I want to say I think Elvis is a great artist. I mean, he's a phenomenal artist. However, there's nothing original about him, right, because of his compositions, because he wasn't a writer. He couldn't write music. And so Otis Blackwell is the composer of that song “All Shook Up,” and a number of his other big hits. And Elvis had a deal that if you were going to write songs for him, you had to share half the copyright. So, Otis Blackwell, who completely wrote “All Shook Up” and if you listened Otis Blackwell by the way, you'll see that Elvis completely mimicked his style of singing as well, which isn't protectable under copyright. Yeah, it's okay to do that under copyright laws.
How is that possible that somebody who didn't write the song actually is taking, you know, 50% of all the royalties and income from that song? Now for Otis Blackwell, while he might have said, well, that's a good deal because half of Elvis is still a lot. But it's not consistent with what the Copyright Act defines as joint authorship. It has to be two people who come together to create something that's inseparable. And that's clearly not what happened here. And of course, we see more iterations of this today with little Wayne, who had a deal with Cash Money Records—he's Young Money, all these monies are a little confusing. But we have Young Money who is Lil Wayne, Cash Money, and the songs were supposed to be 50-50 in terms of the copyright ownership, even though Birdman didn't write any of those songs. And the thing to understand about this, Annie, is the Copyright Office has a policy—it's in their compendium that they write—that says that we do not, we're not in the business of figuring out who's actual owner of the work, who was the author of the work.
This has caused all kinds of mischief for black artists. And that's why I believe that there should be a much stronger copyright vetting system, to make sure that the people who claim that they're on those copyrights, which I tell my students, by the way, is God. The copyright registration is God in the entertainment industry, right? And courts look at it and they say is prima facie evidence of ownership. And then you have to disprove that this person actually doesn't own it. So, you're already in the hole right in the beginning. And there's no mechanism, by the way in the law, to actually challenge these, what I call false copyright registrations. And I believe this problem is so severe when it comes to African American artists historically, that in my Copyright Manifesto, I call for an audit of the records of the US Copyright Office for all works that are currently under copyright for black artists so we can determine whether the names on those copyright certificates in Washington DC, are actually the true owners of those works.
Now, if we did this, it would be like taking a rock out and watching all the ants and the insects scramble, I assure you, right? Because I can give you so many instances where African American artists were deprived of their copyrights, someone else registered the copyrights. In one of the foundational cases for that if you if you have a minute, I can play you a little bit of this artist who was one of the early Motown artists, his name is Barrett Strong.
So that's “Money (That's What I Want)” by Barrett Strong, right around early 1960s. And of course, this is at the foundation of the Motown empire. And Berry Gordy was also known as a songwriter. So, I don't know how much he actually did on the song that's always difficult to figure out. Initially, the song was registered with the US Copyright Office as “Money (That's What I Want)” by Barrett Strong and Berry Gordy, the founder of Motown. Then, about a year later, after the song became a hit, one of Motown's first hits, big hits, somebody at Motown, went over to the copyright office, because you actually had to physically go to the copyright office in those days, there was no internet or anything, and they had the certificate changed. So they took Barrett Strong’s name off the copyright certificate. And for 20 or so years, he was receiving no revenue from the song, which if you understand music publishing and how music publishing works, if you own the rights to “Money (That's What I Want)” you could make a very nice living. You might not even have to work. So, he was deprived all those years. Finally, later, but right before he died, he reached a settlement and got some of those revenues. But this was part and parcel of the music industry. And we see it again and again. We see what Frankie Lymon and the Teenagers, one of the teenagers sued, saying that he was an owner, he was not on the copyright certificate. And when he went to the courts, they said it was too late. He waited 30 years. Why did he wait 30 years because the music business was infested by mobsters and Moe Levy, who was the manager and the controller of the group said if you come back again and ask me about these royalties, I'll have your kneecaps, you know, busted. And so we see this over and over again. And that's why I have no faith in the records of the US Copyright Office. And I don't think you should either.
AK: After listening to you, I'm with you on your belief that the US Copyright Office should and must take a leadership role in overturning these practices. You also mentioned that they should advocate for reparations. And we know that the Copyright Office is attending some of your talks. Could you tell us more about this stance that you have?
KG: Sure. Well, just about a year, a year and a half ago, George Floyd obviously changed a lot in America. And as I said in the talk, you know, a lot of people in my early years as an academic they completely discounted my work. I was blacklisted. I tell the story in the Rolling Stone where I was featured last year of how I was giving a talk in the early 2000s and all these muckety-mucks in intellectual property they just got up and walked out.
So, we've come a long way. And you know, I'm happy now that there’s such a great interest in this topic. But the copyright office, I think, has to take the lead on this, as you say. That there's this tremendous inequity. They have to actually understand what's going on. And I think they do at some level. And they did last year. They issued a statement saying we understand that there's this problem of copyright and so called marginalized people and we are going to take steps to address that. Now since then, I haven't heard much.
One of the things the Copyright Office did say in that statement was that they were going to hire an economist. And I'm like, well, who are you hiring? I mean, who's this economist? And what is this economist going to do? So, we don't have a lot of information about where it went from there. But I think they are increasingly recognizing that they're in an untenable position, as you would suggest in supporting a system which has done this, it's their job to protect everybody. And I always say in my work, yes, my work is about black people. But the reforms I propose will help every artist of every race, color and creed. And that's the vision of Dr. King. And it's the same as my vision that we want to have equality for everybody, every single human being.
AK: Right, and even the Copyright Office and their mission statement, it says that, you know, they are there to protect the creativity rights of all people.
KG: All means all.
AK: Right. Who was that in your presentation you mentioned who even named their boyfriend on the certificate?
KG: That happened more than once, first of all, but one of the people that that happened with was the great singer Jackie Wilson, who you might be familiar with, “Your Love is Lifting Me Higher Than Ever Before.” And so, his manager, Mr. Tarnopol, who also was associated with the mob, because almost everybody in the 1950s and 60s had mob associations in the music industry. That was part and parcel of the music industry. He put his kid on the copyright certificate, understanding that copyrights is measured by the life of the author. So, there would be a longer copyright term. Of course, the kid had no association with any of Jackie Wilson songs. And that's not the first time that had happened. So yes, we see that as well.
And again, the Copyright Office does no vetting, no investigation to say, okay, did you really write this song? You know, are you really a copyright owner. But yet, the registration certificate is critical to everything, to transactions to transfers of the work. Of course, now, I talked in the talk about all these massive catalog sales that are going on of all this old black music, which is incredibly valuable, even though it's old, even though doowop is old, from the 50s. Imagine all the things you can do with a doowop song, you could put it in a movie, you could put it in a TV commercial, you can use it on Tik Tok, there's just so many.
And that's why music is the number one asset that that Wall Street wants to buy. But as I said in the talk, I'm very disturbed that these Wall Street money men who I say for dramatic effect, but let's face it, they are mainly men. Wall Street has a huge gender problem. They are making hundreds of millions of dollars. And in these deals, there's no concern for the actual artists who created this, many of whom were never paid anything. And I saw a massive problem. And I think there should be a law by Congress that says if you acquire, you know, the doowop catalog from 1953 of Decca Records or whatever, you have to make sure that the artists who actually did this work were paid. I guarantee you'll find that they weren't.
AK: Yeah. And wasn't it Warner Brothers or Sony, who way back in what the 50s or something they went through and did research literally for the purpose of…
KG: It was Columbia Records, which is now Sony today. Yes. And they had a deliberate strategy going back even earlier into the 30s, to go into the black community, mainly in the south, and to listen to all the music they could, to transcribe that because remember, it has to be fixed. It was not written, nobody owns it. To transcribe that music and to acquire that music and put it in their music catalogs.
AK: Can you tell us, I got some numbers here, the seven deadly sins and then a 10-Point Plan? Can we talk about the seven deadly sins of copyright doctrine or some of them that you named in the manifesto?
KG: Sure. Well, we talked about fixation. We talked about originality, and how originality kind of penalizes people who are highly innovative like George Clinton, Bessie Smith, we could pick Little Richard, of course, Chuck Berry, right? All those. You know, DJ Kool Herc and the rap. It doesn't really give them their due like patent law does. Patent Law requires it to be novel to get protection, copyright has a very low standard of originality.
We also have, I told you the absence of moral rights, so that you can prevent uses of the song that you find disturbing under our US copyright system. But I think the big one on that list of the seven deadly sins is copyright formalities, and formalities are hoops you have to jump through to get protection. And there are two copyright acts that are enforced right now, the 1909 Act, which ended in 1978, with the 1976 Act being the current act. But under the 1909 Act, it was so full of formalities, it was almost impossible for the blues men and women of the Mississippi Delta to comply with. Too much paperwork, right? Most of these people were illiterate or barely literate. So, to ask them to jump through these hoops was really an impossible task. And they lost rights because of that.
Under the current act of formalities are less, but we still have two big ones. One copyright registration. So, our copyright law says that once you create the work and fix it, write it down, record it, draw it, you get protection, however, to enforce your rights, you have to have a registration, it’s nonnegotiable. You cannot go into federal court in any jurisdiction in the US, unless you have a valid copyright certificate in hand. Did I say it was not God? So many times, black people don't have that piece of paper. And so, they get deprived the rights today in 2022 because of that. And there's no reason for it. One of the reasons for registration, that is set forth is that, oh, it gives us a reliable record. But I already told you it’s not reliable at all, right? And it's actually chock full of fraud, and misappropriation. So, it doesn't do what it says.
Other than that, there's really no reason. Europe does not have a registration system, for example. They laugh at us in the United States like you need all this paperwork just to go into court and enforce your rights? The other big one, which I didn't get a chance to talk a lot about in the talk, of course, is copyright terminations. And I'm going to play you a little song of somebody that you know, and you can dance along if you want to it. Everybody on the planet knows this, right?
Of course, that is Victor Willis. He was the cop character in the iconic 1970s group, the Village People. He wrote that song, he told me. He wrote that song, and nobody else wrote it. But on the copyright certificate, they were three people on “YMCA” and “In the Navy” and “Macho Man” and those hits from the 70s. If you on the rights to “YMCA” you would never work a day in your life again, I promise you, and you could live in the fanciest area of Seattle or Los Angeles or San Francisco or wherever you want.
AK: Or your descendants.
KG: Yes. The revenues that are generated from that song are astonishing because you get paid every time it's played on the radio, every time it's used in the movie. Every time it's used anywhere in the public, the copyright owner is entitled to payment. After a trial, we found out that there were three people on the certificate, Victor Willis, Mr. Belolo, who was the kind of founder of the group, right—the mastermind of the group—and this other guy whose name I can't remember, who was Mr. Belolo’s lover. And only Victor Willis wrote that song, and at trial it came out that the third guy on there, the boyfriend, he didn't write anything. And the judge said, no, you're not a copyright owner.
But the reason that case came to court was Victor Willis was saying, I want the rights back to “YMCA.” This is back in 2013. Because there's a mechanism in the copyright act that is about equality and justice. It’s the only section of the copyright that mentions that there's inequality of bargaining power. It recognizes that artists in the beginning of their careers are going to sign bad deals, whether they're screenwriters or musical artists, etc. However, there's hope. Because under the copyright termination provisions, also called recapture, copyright recapture, after the statutory period, which is somewhere between 35 and 40 years after you sign that horrible deal signing your rights away, you can recapture that work. If you really think about it, that's a notion of equality. Right? You didn't have much power now. We're going to give you back later. And so Victor Willis had to sue the French producer, who claimed copyright in his songs to recapture those works. And he successfully did it. However, in order to do it, it is—I've written an article about that—it's one of the most complex processes that you can go through in the copyright system. You have to be thinking as a 20-year-old artist 35 to 40 years ahead. And you have to be taking steps during that time that make sure that you can enforce your rights. There's all sorts of windows where you have to send notices. So, it's extremely difficult to do. Victor well, as I'm told had about a million dollar investment behind him. So, somebody said, we're going to invest a million dollars for you to prosecute this case and recapture your rights, recognizing that song generates a million dollars probably every month or so or couple of months, right? So, it was a good investment for that angel who came in.
But can you imagine having to do all these steps and having the money to prosecute these termination claims? And I talked about in the talk the big labels, by the way, if they're small artists who try to recapture those works, a lot of them are just ignoring the notice. They just say, I don't care. And what do you do now? There's no mechanism to address that either.
AK: How would copyright terminations work out in reality?
KG: First of all, the copyright office, again, is not giving us any information about this. The copyright office should have a database that tells every artist when their rights are due. I know that that could be constructed. Right now, it is all on the artist, the screenwriter, the songwriter, to calculate all these dates. And just calculating the dates, Annie, as to when you can terminate is a very, very difficult thing to do. There's many permutations about even what that date is. If you get that date wrong, you have to start from ground zero. And the clock is ticking.
The manager of one of the most iconic hip hop duos called me about this a couple of years ago. And I tried to do the calculation, I said, as I calculate it, you have about a year to six months to do all these steps. I'm pretty sure they didn't do it. So, my thing is, why doesn't the copyright office, in conjunction with major labels and movie studios, why don't they collaborate? Give us a database. So, artists know, okay, great it’s January, whatever it is, today, you need to be filing that notice in the 10 year period, because there's a 10 year period, there's a two year period.
Could you imagine anybody really figuring this out? It's very, very difficult. The other thing is, and they were talking about this in South Africa, because I consulted with South African legislatures about this along with Sean Flynn, my good friend in Washington, DC and American University, they are trying to come up with a system where reversion or recapture is automatic. Right? And we can — we should — consider that in United States too. So, let the labels, let the movie studios, they're very good at figuring out these things. Let them figure that out. Don't put it on, you know, the artists who's not nearly as sophisticated or well financed.
AK: Right, let's let them do their art, and protect their art.
In your talk you mentioned that BMG, which is now based in Germany, in 2020 issued a statement that they were going to conduct a review of musical tracks.
AK: Yes, we’re awaiting an update from BMG.
KG: I haven't heard anything yet, but BMG at the height of George Floyd, you could see it, it was the president of BMG, and his message was very heartfelt. He said, look, we recognize that there was rampant exploitation of these so called legacy artists, these black artists, and we want to do something about it. So, we're going to do a full review of these contracts. They did a review. And that initial review showed that there were significant disparities in terms of what these black artists were paid and what their contemporary white artists were paid. Now, I joked in the presentation as black people, we don't need an audit or a big investigation about that. We know that they were not paid at the same rates, and we know that there was rampant exploitation of them. Since then, maybe they're still conducting a review, but I haven't heard anything else. This is not about demonizing record labels or movie studios. It's not a problem of individuals. It's a problem of systems in place, right? A mechanism in place.
AK: And tell us a little bit about that 10-Point Plan that you propose to begin to close this racial justice gap in copyright and entertainment.
KG: Sure. The 10-Point Plan does call for an audit of the records of the copyright office. It calls for either reform or elimination of the copyright termination provisions. It calls for rights for performers, which we could call moral rights, which Europe does. The United States doesn't. That's one of the major areas by the way, that performers are the odd personality in copyright law. It's all about the composer. And you know, it takes to two make a song, right?
I use “Be My Baby” by Ronnie Spector, Ronnie and the Ronettes, written by Phil Spector. But Spector couldn't sing a note. And that song is one of the most iconic songs in the rock 'n' roll pantheon. And yet, Ronnie Spector is completely caught out of the loop. Her and her sisters were paid a one-time payment back in the 60s. Again, if you own the rights to “Be My Baby” you would never have to work a day in your life. And this is just so wrong how we treat performers in the United States. So, that's a big part of the 10-Point Plan for that.
I also want the copyright office, as you suggested, to take the lead on these issues, and really to consult with the people that should be consulted. When they say they're going to hire an economist, who is this economist that they're going to hire, right? Is he from our community, right? Or is he or she sensitive to all these issues that we're talking about? So, I think that there has to be a lot more collaboration with the copyright office regarding that in the 10-Point Plan. And I think generally we have to try to get rid of formalities in our system. They don't really serve. They don't show any accurate records. And they exist just to hurt people as far as I'm concerned.
AK: Right. They're not working. They're not working for the folks who are making the music.
KG: That's right.
AK: Yeah. Thank you so much, Professor Greene—Kevin—for joining us. It was riveting to hear you talk to us here at UW Law and to speak with you today. Thank you so much for the music.
KG: Thank you, Annie, and thank you Greg for this. This is awesome.
AK: Kevin J. Green is a leading scholar and professor of copyright law and entertainment law at Southwestern Law School in Los Angeles. He is changing the industry and the academy on the issue of racial justice and intellectual property. His clients have included Harry Connick, Jr.; Bobby Brown; George Clinton and Public Enemy.