1.) In making and posting the YouTube video, it is quite possible that I am breaking the law. The determining factor will be whether or not the songs that I use are in the public domain. Although these songs are most likely in the public domain, based on their age, the recorded copy that I used most likely is not in the public domain. This is because, while song is free to use, the actual recording of it is the intellectual property of whoever made the recording. In order to use the songs legally I would need to get authorization from the party that made the recordings of the songs that I actually used in the video. Depending on the actually versions of the song the parties I might need to contact in order to gain authorization include one or all of the “Big Four” music publisher, or maybe even an individual songwriter who created his own version of the song and uploaded it to the internet (Hull et al., 2011). The most likely type of authorization or licensing that I would need to get from the producer of the recording would be either synchronization license, if the video I made is deemed an ad; or a sampling license. Upon consideration, this regulatory framework seems fair. While the songs are public domain, the records do actually involve the intellectual creativity and action of the recording producer. I should not be allowed to use his/her work for my benefit. In the alternative, there may be some recording of the songs in which the producer allows for it to be used without the need for a license such as if it was release under a Creative Commons license. In other words, I little more effort on my part might have resulted in a perfect legally video for grandma that did not require me to first obtain authorization.
2.) One argument for the fairness of the system used by ASCAP is that, ASCAP performs a vital service for all songwriters and publishers, namely, tracking the performance of a song and see that the performance is paid for reasonably (Hull et al., 2011). This is a service that would be almost impossible for a smaller songwriter or music publisher to do independently and on their own. Naturally, in providing that service ASCAP must expend a certain amount of resources and funds. It makes those funds back mainly from a percentage of the licensees that it sells to the end-users such as radio shows or television programs and the commissions generated from the performance of those songs. If a song if not played often, it will not generate revenue. Accordingly, it would seem like ASCAP would nevertheless be supporting that song, via its monitoring of it performance, even though the song is not generating revenue. Under that consideration, it would seem reasonable that only those songs that actually generate money should actually have a say in how ASCAP pays out its commissions. One way to make the royalty distribution system more equitable, might be to allow songwriters and publishers have the ability to also negotiate their own license and commission agreements with the end-users. In this way, even if they would be provided with the protections of ASCAP along with the ability to make money from whichever end-user that the songwriter or publisher actually contacts directly to use their songs/music. Once those a songwriter or publisher is able to make a certain amount of money, they would be required to pay a flat see to ASCAP for their general monitoring and enforcement services.
Works Cited
Hull, Geoffrey P., Thomas Hutchison and Richard Strasser. The Music Business and Recording Industry, 3rd ed. New York: Routledge, 2011. Print.
