The Fringe Musician, the 360 Deal, and a New Look at Copyright and Competition in Music

This article is guided by two questions: (1) How well does the law actually protect musicians from market exploitation? (2) What new perspectives and legal strategies can better secure their bargaining power and financial wellbeing? Copyright and antitrust are not mutually exclusive in music or in any other industry, yet there are important lessons to be learned from comparing how the musician’s prominence in each doctrine does and doesn’t correlate to what its laws can really do for different members of that creator class. Stakeholders frequently cast copyright as an essential necessity for “everyone in the music industry,” but this article probes that ‘music needs copyright’ narrative with the more focused question of whether musicians need copyright—and, if so, which ones? Thanks to Donald Passman’s diligence updating his “industry bible,” All You Need to Know About the Music Business, it is possible to trace copyright’s function in musicianlabel negotiations over the past thirty years. Among other exploitative bargaining practices, these guidebooks chronicle how record companies actually deemphasized copyright in a sudden push for ‘360 deals’ demanding other pieces of musicians’ income. Ultimately, this article argues that antitrust, not copyright, could have been called upon to stop that anti-musician development, if regulators had only thought to clamp down on the record companies’ market power as purchasers of musical copyrights. When we remember that, we offer ourselves a means of monitoring and putting a name to any anticompetitive movements in musician-label negotiations—even if we can’t go back in time to stop the proliferation of the 360 deal.