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Music Borrowing and Copyright Law: A Genre-by-Genre Analysis

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Introduction to the chapter:

The political-economic practices of commercial music production may be plausibly analogised to a relation of plunder and redistribution, clothed in and (legally) legitimated by recording and publishing contracts. For African Americans, this was particularly true during the pre-Civil Rights era. During that time, entrepreneurs and companies that offered recording, song writing and publishing contracts to African Americans were able to take advantage of social-structural contexts of considerable societal racial exploitation and violence targeted at African Americans. Further, for all artists prior to (and even during) the digital era, the realities of the commercial recording industry have left open few alternative paths to a recording career other than those largely determined by recording companies. For many artists, this lack of alternatives meant that taking a bad deal was generally preferable to no deal at all.

The US commercial recorded music industry has long been a socially extractive industry with racial characteristics. Here, varied experts, including recording scouts, industry executives and other intermediaries, have frequently operated as seekers after and discoverers of rich seams of unrefined music: they secure rights of exploitation through contracts; and they extract, refine and market uncountable varieties, seizing on and pumping as much value as possible out of the most productive and marketable sources. In a 2004 interview, Marshall Chess, son of Chess Records founder Leonard Chess, recalled his experience of the Chess Records headquarters when a new Chess record became a hit: ‘The excitement of a hit was the closest thing I’ve seen to looking at those old movies where they get the oil gushers.’1

That’s how it used to be when you got a hit. It was just amazing; it would be going like a wave going across the country. Records would break, and the phones would start ringing. We’d yell up and down the hall, like ‘Detroit 13,000!’ I mean, you’d be running and running trying to get the pressings, and it would just roll across the country.2

Chess Records was one of several independent music labels that exploited a vacuum left by major recording companies. Between 1945 and 1955, these indie labels specialised in commercial music made by African Americans, with marketing targeted at African American communities.3 The development of this ‘race’ record market segment led such companies to record African American artists in varied genres, including blues, R&B and rock ‘n’ roll, with a focus on recording artists performing genres categorised as ‘black’.

Marshall Chess’s ‘oil gusher’ metaphor highlights the prospecting/extraction dynamic that can be seen at work in several phases of the commercialisation of African American music. In this chapter, we focus on the controversies that can erupt when a creator or bearer of valuable music – a performer or composer – questions the legitimacy of an extracting agent – a record company owner or music publisher – or resists their terms. For example, Little Richard recalled confronting Don Robey about his treatment as an artist contracted to Robey’s Peacock Records: ‘He jumped on me, knocked me down, and kicked me in the stomach. It gave me a hernia that was painful for years. I had to have an operation. Right there in the office he beat me up.’4 Years later, according to James Salem, Robey’s partner Evelyn Johnson called Little Richard’s allegations ‘“flat, bald-faced lies”, but she does remember Robey slapping him once’.5 In 1985, a television news reporter doing a story on royalties asked singer Hank Ballard (writer of ‘The Twist’ and other hit songs, long under contract to King Records) ‘What happened to your publishing rights?’ Ballard responded ‘publishing rights? At that time, they didn’t allow blacks to have publishing. If you went to a record company and even mentioned publishing, out the door you’d go.’6

Many African American artists have pursued restitution by contracting with ‘royalty recovery’ experts. Yet this tactic has often had perverse results: these experts work for a piece of the action, typically 30–50 per cent, in some cases not just of royalties recovered but of all royalties owed the artist after the royalty recovery contract was signed. For many of these experts’ clients, this relation exchanged one extractor for another. Further, much royalty recovery litigation has been between royalty recovery experts and their clients. We contextualise this form of redress to contribute to a historical account of previous restitutive efforts on behalf of African American artists, as well as to highlight potential booby traps in contemporary plans for reform.


This chapter was published in the book Music Borrowing and Copyright Law: A Genre-by-Genre Analysis, edited by Enrico Bonadio and Chen Wei Zhu and published by Bloomsbury Press. Further information about the book is available at:

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Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License
This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.