Binta Niambi Brown, Black Music Action Coalition Co-Founder & Attorney  

Binta Niambi Brown is an artist manager, music executive and former corporate attorney. A former corporate lawyer at Cravath, Swaine & Moore and Kirkland & Ellis (where she was a partner), Niambi Brown has advised global entertainment and media companies such as Time Warner, Universal, and HBO. She has since led Chance the Rapper’s record label and publishing operation as a member of his management team and was an independent contractor for Universal Music Group/Verve Records. She now represents Grammy-award winning, as well as up and coming, talent. She is currently a Board Member of The Black Music Action Coalition. BMAC was formed in the Summer of 2020 to address long-standing racial inequities in the music business, the financial impact of those inequities for both Black artists and executives, working urgently to solve these problems.

Kevin J. Greene, Professor & Music Attorney

A graduate of Yale Law School and a veteran of the United States Marines, Professor Kevin J. Greene’s scholarship in the areas of copyright, trademark and publicity rights has garnered national and international recognition in the intellectual property (“IP”) arena, particularly his pioneering work on African-American music and copyright law. In addition to his extensive academic work, Greene previously practiced law in New York with Cravath, Swaine & Moore, where he represented high profile companies such as Time Warner and HBO in litigation matters. He later joined a top entertainment law boutique firm, where he represented clients such as film production companies, including Director Spike Lee’s 40 Acres and a Mule film company, iconic music artists including Harry Connick, Jr., Bobby Brown and the seminal rap group Public Enemy.

Ronald Sweeney, Music Attorney

 A veteran of the U.S. music business, Sweeney has previously represented the ‘Black Godfather’, Clarence Avant, as well as Eazy E and Ruthless Records, Lil Wayne and Young Money Records, Irv Gotti and Murder Inc. plus Sean “Puffy” Combs and Bad Boy Records, in addition to James Brown, Public Enemy, DMX, JaRule, and many more. He joined Sony Music as executive vice-president of Sony Music in 1995 and was executive vice president of Epic Records.  He later became President of Epic Urban. He also served on the Senior Management Committee which ran Epic Records Group. Since exiting from Sony Music, he has continued to work on behalf of several entertainment entities, prominent artists and personal managers.

This panel was originally hosted by USC’s Music Law Society and Black Law Students Association in Fall, 2020 and was re-recorded for Spotlight in May, 2021.*

Blake Hazard: We have long heard that the music industry in this country was founded on the work of Black artists and that from the very earliest period of recorded American music, with “race records,” Black artists did not make the equivalent earnings or retain the same rights as their white counterparts. Professor Greene, in your excellent lecture for the IP Institute this summer at Gould[1] you laid out some of the real machinery that was behind this inequity in terms of copyright formalities and the resulting royalties, could you share some of those insights with us, to give us a foundation for our conversation today?

Kevin Greene: Sure, so I think it's this interaction with Contract law -- classic common law Contract law -- which is generally hostile to people who are at the bottom of society, like African Americans. For example, under doctrines like adequacy of consideration, courts won't examine whether parties made a good deal or a bad deal. Additionally, the parol evidence rule limits the deal only to the writing, and anything that’s said before doesn’t count. All of these mechanisms are disadvantageous to the position of African Americans and people similarly situated.

And then, of course, in Copyright doctrine itself, there is a dynamic I call the “seven deadly sins of copyright”, which have impacted African American artists in a negative way. Those include things like the fixation doctrine, because copyright says that works must be fixed in a tangible medium. And, of course, Black cultural production has an oral predicate. African-American cultural production is not really about a written composition, it's really more about the performance and improvisation. So, if artists weren't sophisticated, there was nothing to prevent [other, typically white artists] from just transcribing those [performed] songs and then copyrighting the works themselves, because the works weren’t fixed in the tangible form. Elvis would go to the honky-tonks in Memphis and he would listen to what was going on. I’m not saying he did this, but in theory, he could have. 

The idea/expression dichotomy is also something I talk about. Copyright only protects expression, not ideas. And of course, for African American artists that means that style, which is analogous to an idea in copyright, isn’t protected. So musical styles of artists from Bessie Smith to Jimi Hendrix to Tina Turner, the style of performances isn’t protected. And a lot of times in the era of discrimination, it was a white artist, Elvis Presley, Pat Boone, Led Zeppelin, who were able to monetize that style. And the African American artists didn't receive anything. 

The Copyright Act’s compulsory license provisions also hurt Black Artists. These permit “cover” recordings, and historically these provisions didn’t benefit African American artists, because the compulsory license says that once anybody releases a sound recording, anybody else can make a recording of that, and they have to pay the original artists, the composer, a fee.

But because of discrimination, [Black composers] couldn't really take advantage of that. You can name a whole bunch of people who were able to take songs. For example, Pat Boone with Little Richard. He used the compulsory license, and then people didn’t even know about Little Richard. Many believed that Pat Boone composed “Tutti Frutti,” because he actually covered [Richard’s] “Tutti Frutti.” And Boone made more money off the record than Little Richard.

And, of course, Copyright law is riddled with copyright formalities, the bane of Black artists. Formalities are mechanisms like copyright registration, copyright notice, and copyright terminations. These were effectively impossible for poor Black artists to navigate. Even seasoned copyright lawyers struggle with copyright terminations. They are devastating to artists at the bottom of society. I spent a lot of time talking about copyright terminations, also known as recapture. That’s the ability for a composer to recapture her work after the statutory period, under the current act, 35 years after they've signed their rights away in a bad deal. But the way that the copyright termination provisions are set up, only the wealthiest and most savvy and sophisticated artists will be able to take advantage of it. And those works which aren't recaptured, for example, old 80s hip hop, which is now in the termination windows, will just stay where it is, which is with major record labels and music publishing companies. This is in essence, copyright formalities facilitating reverse-redistribution. 

Blake Hazard: Ron, you've had extensive experience putting together deals for Black artists in your time as a manager and later as a music executive. Could you share with us a bit about the on-the-ground experience in negotiating those deals, and how that experience changed over the years from your earlier representations.

Ronald Sweeney: In my earlier representations as a young lawyer, I would get what was known as the “D contracts.” Record companies pretty much have “A contracts,” “B contracts,” “C” or “D.”

Depending whether or not you're in their country club -- the lawyers that they like, they sent the A contracts. Lawyers that they didn't know or didn't want to deal with they sent the D contracts, which meant you literally started looking through the weeds to try to pull out the right paragraphs, the right provisions that you want, and eliminate a ton of stuff that they leave in there hoping that you would miss it. 

Over the years, as I represented more folks, I started getting better contracts, but what stuck in my mind was that they were still doing that, with a lot of the Black lawyers. They hope that you don't figure it out so that later on, they could point it out to the artists to say, “Hey you really need a better lawyer. We've got a friend over here [you should work with].”

Over the years, these contracts provisions haven't really changed. The only thing that's changing are the names and the numbers. Artists now are trying to be a little more savvy: they say that they want their masters. But most of them really don't know what that means. They talk about ownership but they don't read the fine print. A lot of the artists do not want to take the time to read their contracts. And, quite frankly, a lot of lawyers focus on the advance. And that's all part of how the record business has been set up. Lawyers, for the most part, get paid on the advance up-front.

So, the client is impressed by the lawyer, and by the amount of money he gets them. But the client doesn't understand that to get that extra money, they're giving up rights. So, in my opinion, the contracts are worse now for new artists than before.

Now, the record company wants to participate in all of the areas where the artists earn revenue. And it's something that literally happened overnight. I used to say that the record company decided to have a cocktail party and invited all the lawyers, except myself. And the next day, every lawyer in town was okay with giving up 360 rights. It just came out of nowhere.

The same with retention rights on the publishing side. Those retention rights were never there for the longest time, and all of a sudden, say in the 90s, they just popped up. And all the lawyers in the record business just went along with the retention rights. And literally what that meant was: on the publishing side, you sign a contract for a certain number of years. You give them the right to, let's say, administer your copyrights for five years. Before, it ended in five years, and if you had control of your copyrights, you could move and go somewhere else, and let the companies negotiate against each other to get your catalog. Now, there's retention rights where they hold on to those songs from seven to 15 years, sometimes even longer.

And again, nobody's looking at that. I had a major client that I did an overall admin deal for, got them a ton of money: straight five years or until it recouped. This was shortly after the time that I went into Sony. So, they ended up using another lawyer to renegotiate. They got less money and the worst part of it all, there was a retention period in the agreement for 12 years, and [the artist] didn't even know it, until the end. And it's something that, in my opinion, makes absolutely no sense. But it sort of lets you know what the record companies and the publishing companies have done over the years to benefit themselves. And oftentimes lawyers, just out of fear of the companies, kind of go along with the program.

The guy that I worked for at Sony said, “Ron, why would we kill the goose that laid the golden egg?” It took me a moment to figure it out, but I'm like “yeah you don't want to modernize any of these systems.” They want to keep them just like it is because it's designed to fix it so the artists never make any money. If the artist does make money, it's designed so the label goes in and says “let's start a new record,” and then they use the artist’s money to do the new record.

Binta Brown: Part of the issue is that attorneys are on both sides: representing artists, and also representing the label. And they're ponying up and currying different favors and the person who loses, a lot of the time, ends up paying, is the artist. Particularly if the artist doesn't have sophisticated management that reads through deals and can explain what's in the deal to them, and why it matters. And particularly if they are just blindly trusting their attorney. To Ron's point, and I think Kevin would agree with this, too, unfortunately, there are some artists who say they just want the money. So, even if you explain it to them, it doesn't matter, because they just want the up-front money. They just want the cash. And that's very real, and the people who are most affected by that, to Kevin's point, are people who are the bottom, who have the least means, who are in maybe the most dangerous environments, and oftentimes those folks are Black.

So that creates inequity in the system for sure, because there are varying levels and degrees of access. You [may be] young [and thinking], “my attorney is a baller.” But people are on both sides of the deals. And there's no clear conflicts of interest to make it stop. I think that is a conflict of interest, but a lot of people just sort of look over their shoulder and don't really get into it.

Part of that is because of the exigencies on lawyers. If you're being compensated five percent, you’ve got to get that five percent. If your firm is putting pressure on you, and you're trying to survive yourself, you're trying to figure out all the different ways you can survive. So, there's a lot of stuff that's wrong in our system.

And the things that are wrong result in short-term decision making, oftentimes bad decision making. Short-term decisions made at the expense of long-term planning and strategy end up being really, really bad for Black folks, for people who have less resources, of any race, and so on.

Blake Hazard: Thank you so much for that. So now we’ll shift to the original topic of our conversation when we met this Fall, which had to do with the payments made by the labels to anti-racist causes. Early in the Summer, following calls from #TheShowMustBePaused and #BlackoutTuesday, and in response to the Black Lives Matter movement, a number of major labels pledged to make huge contributions to social justice and anti-racist initiatives. Notable examples include Universal Music Group for $25 million, Sony Music Group $100 million, Warner Music Group $100 million, paid for by the Blavatnik Family Foundation. These amounts are considerable. Apparently, Warner's contribution is equivalent to a third of its profit for last year. Binta, the Black Music Action Coalition, of which you are a founding member, has partnered with the women who launched #TheShowMustBePaused movement, Brianna Agyemang and Jamila Thomas, and others, to address these inequities. Did these payments feel like enough, or even an effective step, to address the inequalities highlighted by the movement and discussed so far?

Binta Brown: A lot of promises have been made. In terms of the Warner contribution: let's just be very clear. Warner itself is not giving any of its revenue. Lynn Blavatnik and the Blavatnik Family Foundation is giving money. The Blavatnik Family Foundation owns a company that is called Warner. 99.8% of that company is worth substantially more than the amount of revenue it's earning. So, respectfully, you’re not looking at the right point of analysis. You should be looking at the overall net worth of the Blavatnik Family Foundation, relative to the amount they've contributed, in order to determine whether or not it's a truly meaningful contribution.

It’s very easy for me to say $100 million is a meaningful contribution. But if somebody is worth $20 billion (and I don't know if that's true or not): is $100 million still meaningful for a family foundation that gets tax benefits that count against some of the revenues and the income that they're receiving from the company? It’s a nice thing for society and for the Community, but it's also a hedge. So you’ve got to make sure that you're looking at the right units of analysis, and dig deeper. Now with that said, I do think that $100 million is a lot of money, and I do think that it is the beginning of a very meaningful contribution.

And I'm inspired by the $5 million, give or take, that they've given to Howard for scholarships in the music business. But I would submit to you, with all due respect, that folks from Howard, Spellman, Moorehouse, don’t tend to have as much difficulty finding their way into the music business. There are other schools that really need the money. Schools like Jackson State, Alabama State, Xavier University of New Orleans, a whole bunch of other HBCUs, where you have young folks who are coming up, who want to work in the music business who still don't have access. That's where we could really make a difference.

So yeah they're starting to give some money, but I think that we need to have much more accountability. I am not sure where all the $100 million has gone. When you look at the announcements that have been made so far, those announcements don't necessarily add up to the pledges, at least by my calculation. And I find that to be very interesting because some people were saying it’s going to be $100 million this year and then it's going to be $100 million next year. People were really hyped up and enthused last summer.

The other thing is they've given a lot of money to civil rights organizations and things of that nature. You know that's fine, and I'm not saying that the civil rights organizations don't need money. But keep in mind, those civil rights organizations are getting money, and last summer, they got money from everybody. I don't know what they need all of the money for. But I'll tell you who does need money and what would really start to balance the scales: thinking about the circumstances in which we can repatriate royalties and zero-out accounts, and thinking about how we can invest in emerging Black artists and Black entrepreneurs who are working in the creative industry, specifically in music, and investing in those companies so that those people can scale and they can grow. Thinking about how we can put money into the more than 40% of Black businesses that closed during COVID-19. And keep in mind that almost every single Black artist, Black manager, every single Black label owner who's not part of a larger company: those are all small businesses, and all of them could have used investment. I think that there's a lot more money that can come back [to the community].

At BMAC, we’re talking about how [Black artists and executives] generate the lion's share, or a significant percentage of the revenues, for the music business. We want to make sure that we're participating in that revenue generation. Which means that we're equitized and the money is coming back. And I haven't seen that that's changed. You know I think it's great, and I don't want to pooh-pooh anything. I think everybody is doing their best. I'm happy to see Universal has paid internship programs, and I'm happy to see the kinds of movement and the kinds of changes that are beginning. But I still think that we're pretty long off and I’m not sure that [the contribution] solves and addresses the specific industry issues of systemic racism, and structural racism within the music business itself.

Kevin Greene: So, I agree with what Binta and Ron were saying in terms of the scope of [these payments]. And I think I look at it a little bit differently in terms of what I'd like to see happen. First of all, we have a society where these billion-dollar companies have all this money. Big record labels are in essence saying, “let’s do some charity and donate to the Black community.” This is an issue of injustice and expropriation of the works of Black artists, it’s not an issue of a charity, it’s one of fundamental justice. ONE group in America—Black artists, have created pretty much the entire American music industry. And everything, virtually, created by others is derivative from that group. The Rolling Stones, the Beach Boys, Led Zeppelin, the Beatles, their works are derivative from Robert Johnson, Howlin Wolf, Muddy Waters and Chuck Berry. The whole music industry is built on African American music lock, stock and barrel.

So that's kind of the starting point: not that the people need to be done a favor through charity. I think it's actually quite the contrary. Twelve years ago, I wrote the first, and I think still the only, article about how reparations would be most easily done in the music space.[2] And now I want to revisit that article, because when I wrote that article 12 years ago, people literally said I was crazy. And I was actually ostracized in some circles for suggesting that we could use the music business as a vehicle for African American reparations.

Every movement for reparations -- whether for Japanese Americans, Jewish Americans, you name the group -- starts with an apology. This is the work of Roy Brooks who's a professor down here at USD.

Binta Brown: And don't forget how white plantation owners got reparations after slavery, but we didn't get our 40 acres and a mule. The government actually paid them money as an apology for them losing their slaves.

Kevin Greene: That's right. So, we need to start out by asking: why is the music industry giving the Black community this money? First of all, the music industry and the entire American entertainment industry needs to say: “Here's why we're giving money to the Black community: because we recognize that, throughout history, going back to 1920s, the American music industry was basically built by two African American women, Bessie Smith and Mamie Smith, and we want to apologize for how [Black] artists were treated. We want to apologize for the unfairness in our agreements. We want to apologize for all these things that were done.” The music industry has never made an apology for rampant injustice. An apology would be step one.

Now, for some people on the reparations side, an apology is enough. I don't think Ron needs reparations, Binta needs reparations, or I need reparations, right?

Binta Brown: Let me speak for myself: I'll take reparations.

Kevin Greene: [laughs] You’re right. I shouldn't speak for Binta. So that's number one. Number two: I want to see deeper structural changes, both in contract and copyright law and in the structure of the music industry.

Blake Hazard: Each of you has worked on, or is working on strategies to create greater equity in the music industry beyond just the one-time payments we've been discussing. Could you please talk us through some of the changes for which you've advocated? Each would deserve its own article, no doubt, but if you could just walk us through the main ideas.

Ronald Sweeney: Yeah, you know when I sent that letter out last year,[3]4 it addressed what the real issues are. And the record companies, once again, ignored the elephant in the room. All of this money, these donations: right off the bat, I look at it and I cut it in half, because these people are getting a tax deduction. Then, after that you say OK, but what about the business? What are you doing in the music business? There, they've done absolutely nothing. They've maybe come up with a few programs. Sony has made some moves and brought in some people of color, so I give them credit for that. I haven't seen that at Warner. I have not seen that at Universal. 

Universal is about to do an IPO, and the company is going to be worth $36 billion, and they're the largest one out of all of them. So, they put up $25 million, and the reality is that they put all the Blacks in charge of the money in a sense, and then they just said, “okay y'all got it.” But the company's not addressing the racism that exists there and they have no intentions of it.

My issue with them is real simple. If you want [Black] folks at your company, put up some money and invest in Black businesses. In addition, zero out to those [Black artists’] accounts. Tell everybody about the money that’s sitting there and who it belongs to, so that they can get that money. Yes, there's a number of things, simple things that they could do, and it wouldn't cost them as much money as we all think. But they're not doing it, because they don't want to change anything. They basically have looked at the Black Lives Matter movement and said “OK, like everything else, this will subside.” It’s about doing business, and that's exactly what's happening there.

So, there's a couple of things that I’m doing. I launched my company, Digital Disruption. I created a new business model. The new business model is much better to the artists. It’s all digital, so the only time I have to talk to a record company is if I need to clear a sample, or if I use one of their featured artists. But otherwise I don't have to be bothered. What I'm hoping is that these artists will get away from a sense of needing that large advance, so that they can quickly get paid, and to really understand how much more beneficial it is, having less of an advance but you're owning more rights. That's where we need to go in this industry if the minority artists are ever going to have anything in the end. Because right now, if you look at a Warner Brothers or Atlantic contract: for very little money, they're taking everything.

Binta Brown: I want to see greater transparency across the industry. And I don't know that it's necessary or even safe for us to be disclosing the dollar size of deals, but what I do think would be very helpful would be to have more transparency around how the deals are being structured and the different forms of deals that are available, and when an artist is eligible for which structure. I also think that greater education around deals and what goes into deals is necessary.

I would also like to see a code of ethics and a code of conduct applied to the music industry: to artists, to managers, to music executives, to tour managers, to agents to everybody. In the legal profession, we have a code of professional conduct and code of ethics that we have to follow. As attorneys, we are required to follow these rules of the road and we can be disbarred if we don't. We can come before our committee and we can lose our licenses and be censured, or we can just be embarrassed and humiliated. And there's nothing like that in the music industry. But, for some reason lawyers in the music business have gotten away with all kinds of bad deals. I don't really know why that is.

I want to see people negotiating their splits and getting their splits done up front. I want to see performers and songwriters treated the same way at radio. And why that is important from an equity perspective is because you could have a situation where you have a Black performer who doesn't necessarily have songwriting or compositional credit, and they're doing great at streaming, but they're not doing as well at radio, because at radio, performers aren't compensated. And so you know, they don't get paid a royalty. So I don't know that there's a racial inequity there but there's definitely inequity in the industry. And it's something that needs to be addressed.

So I want to see more transparency, so that people can have an expectation as to what to trust. And I want us to start being more innovative in the way we negotiate. There’s the idea that you have to do something a particular way because it's the way it's always been done, it’s the most limiting thing ever. And the people who get hurt the most are Black folks and people who are new to the system. The people who benefit are people who've been in the system for a very long time.

So we ought to have more flexibility in the way we approach contracting. It should be a creative exercise. We don't need to disclose marketing strategies; we don't need to disclose anything around what music is coming. We need to preserve [confidentiality around] some things. Those are the things that are strategic and competitive, from my perspective. But the form of contract, the structures of contract: those are things that we should have transparency around. There just needs to be a lot more education in our business, and for artists. On the investment side, you say if a person doesn't have a certain pedigree or if they don't have a certain income, then they can't invest in a certain class of assets. You’ve got to kind of wonder why we don't have the same kind of safeguards in place for young artists. Which is to say, maybe people shouldn't be signing agreements if they don't really understand what's in them. Because it's a danger to people individually when they're put in a position where somebody says, “I'm going to pay you $50,000 or, in some cases, a million dollars, some cases more,” and you don't understand what you're signing, you don't understand what the person who you trust is trying to explain to you about what you're signing. So, those are the things, off the top of my head, where we could start to see some changes. I mean there's a much longer list. 

Blake Hazard: This issue of transparency brings me to the conversation about these recent, huge catalogue deals, about how, because of the lack of transparency, a lot of younger Black artists are doing catalog deals that are so bad, to the point of being exploitive, when people aren't aware of how they may be selling their assets off too soon. Kevin and Ron, would you like to speak to that?

Kevin Greene: So one thing is, in my next piece I'm writing about copyright registration, because I felt the Fourth Estate case[4]5 where they said, “You must have a completed copyright registration to protect your rights. You can't just have an application [for copyright protection].” I thought it was outrageous. And it was classist and it wasn't really thinking about how many artists operate. But beyond that, I’m contending that our copyright registration system is a sham and there is no reason for Black artists to have any confidence in it as it exists.

In the American music industry, motion picture industry, television industry, the copyright certificate is a God. It's a thing to worship. And yet there are no controls in the U.S. Copyright Office. Anybody can register anything. And particularly as to the issue of authorship. Are you really author of that work? The Copyright Office regulations specifically say: “we do not address issues of authorship.” The Trademark Office validates EVERY trademark registration and vets those registrations. Why can’t the Copyright Office? Remember, all works from 1926 up to this very day are under copyright. So, this isn't some old problem.

A lot of those old works are still valuable, by the way, and we're seeing that continuously. Primary Wave bought the Sun Music catalog. That was Elvis's label, but there were a lot of Black artists on there. So, these works are very, very valuable even though they’re old, and I have no idea who owns those copyright certificates.

Binta Brown: There were a lot of Black composers that Elvis covered, right?

Kevin Greene: Well Elvis worked with Otis Blackwell. Otis Blackwell wrote most of those songs. So now of course he sang in the style of Otis Blackwell. Go listen to Otis Blackwell. That's how Elvis learned to sing. He had to share songwriting credit, even though Elvis didn't write anything. And so, I would call for an audit of the records of the Copyright Office to make sure that people who are on those certificates are actually the owners. Particularly for African Americans, you'll find either they're not on the certificate and should be, or somebody else is on it and shouldn't be. 

And Ron knows, when Cash Money registered its copyrights in their joint venture with Young Money, they registered those copyrights in the name of Cash Money and it wasn't caught until litigation. They don't even realize: that’s why we don't own our copyright. That's number one. Number two, we need to have a better copyright termination system, maybe an automatic one.  Let the labels and the music publishers notify the artists, “Guess what? Your termination is up, and we're returning these rights to you.” That would be millions and millions of dollars. 

Blake Hazard: Do you think “let” them or do you think maybe “require” them to give notice?

Kevin Greene: Require them. The labels can do it. They can go to Congress and get things done. We can't.

But you know I've listened to what Ron was saying about these catalog deals. The problem that I have with them is that we know, particularly for those older artists, that they never got paid anything, many of them. Now someone's buying the whole catalog, for $100 million, $200 million, they're not thinking about [those artists]. So, in my mind these artists are being victimized all over again. And I'm not just talking about the big names. I'm talking about the little people who make up a record. This is a major issue, that this Black music is up for sale, and the money is not going to the community that actually created it. And I find that, quite frankly, disgusting.

And the other part: let’s see the deals! The guys who are doing the deals are telling me, “These are the most wonderful deals that are going to be great for these artists.” And I asked one of these guys at a conference to show me the deal. He said, “Oh that's private I can't show you that.” So, if they're so great and it's being touted that we're going to protect these artists’ legacies through these catalog acquisitions, then why can't we see the deals?

Blake Hazard: Absolutely. This gets back to Binta’s point about transparency. Is transparency a way to thwart this kind of exploitation in these kinds of deals?

Binta Brown: I’m sure you've taken a securities law course or maybe you will but when you take business organizations, you will hear this phrase regularly “sunlight is the best disinfectant.” Our securities laws in the United States are premised on that idea, and I think there's an argument to be made that intellectual property should be treated like a security, both in terms of who's qualified to invest in it, and who's qualified to sell it. And having transparency around the market. Because we only have trust when we can see [what’s happening]. Otherwise people are going to keep making it up. And there could be many more happy people if we created more trust in the system, if we had much better communication and transparency.

And I want to jump on the reparations point because I just want to make something very clear. And this will help you to explain, why I believe that I should be paid reparations and I believe Kevin should be paid reparations, and Ron should, too. And here's why. You know reparations, as we said last fall or last summer, comes from repairing an inequity, repairing an injustice.

Kevin Greene: Absolutely.

Binta Brown: Right. And so when you start from the root of what the word is, as opposed to some scary nebulous thing: it's not a gift, you know it's not a handout, it's not an entitlement. It is none of those things. Reparations is compensation for work you've done. So, when you have people who have been through institutionalized slavery, or through Jim Crow or, quite frankly, through the last thirty, forty years, where Black peers have been paid less than white peers. You have to re-balance that. It's compensating people for the work they've actually done. And the people who end up losing are oftentimes women, oftentimes Black folks, oftentimes non-white men. So when we talk about reparations: that's just paying something to somebody that they've already earned and that's overdue to them. It’s not a handout. It’s not making nice. It really is actually the responsibility of society and in particular of companies that were built on the work of Black folks. I mean the music industry is such an industry. It's an extractive industry. It builds itself on the backs of other people's creativity, ingenuity, and hard work and then all of the spoils go to the top.

Ronald Sweeney: Going back to the reparations for a second, I think that's a really good idea, because there needs to be a movement, where you talk about reparations. And every Black artist and every other artist would get behind that. And it could force the record companies to write a big check.  

But until we're forcing them, they're not doing it. Because they think that we're just going to come in, talk, and then we're just going to go away. You know for me, when we were talking about that nonprofit that I’m launching. I’m launching this because I want to scare the hell out of them. The idea that there's a nonprofit that’s putting up all the money for any Black artists to reclaim their copyrights. That's going to scare the hell out of them, and it might be used later on down the road as a way to try to negotiate with the record companies, to straighten out how all of this works. Because right now they're making deals. I'm in the middle of one or two deals where I'm getting the masters back. But it's being quietly done. My clients are older, so they're more concerned about the cash flow. And they're more concerned about the ownership. They're not concerned about the record company continuing to distribute or administrate the copyrights.

So that's been my way of resolving it. It's like “Hey, I'll let you continue doing this for X percent, but you have to give us back the masters, which gives the artists and their estate the ability, if one day they wanted to sell, they could. Or, if not, now they're getting real cash flow, as opposed to the fool’s gold royalty rates.

Kevin Greene: Right or they can grant exclusive licenses. A lot of things they could do.

Ronald Sweeney: And I just wanted to point out that the older artists are more entitled than anybody because they endured “race records,” in a system that did not allow Black records to even go to pop radio. So, the idea of Luther Vandross putting out his record: great record, goes gold, but pop radio doesn't work it. And then they end up not working it overseas. They say the record business is one-third North America and two-thirds outside of the United States. So Black artists, back in those days, were only probably participating in forty percent of that third, and forget about the rest of the world because of racism. They had race records, then they had Black music departments, but Black music departments were only allowed to work Black music to Black music stations. And no Blacks were allowed to go to the pop stations, and the truth of the matter is a lot of the pop stations said, “Don't send no Black people there.”

But at the end of the day, they were not even allowed to really participate in the real record business. Fast forward to today, 98% of the Black people in the record business are not in the real record business. They are in that segment of the business where the company says, “This is where we will let you dwell. And, by the way, you can only dwell in your particular area.” What happens is, as a result of that, nobody really learns the entire record business. They might know their area. But the area is just a small portion of the rest of the record business and 99.9% of the time it's never in the area where you count money and how the record business really works.

Blake Hazard: Just to sort of preempt a counter-argument, what would you say to the people who, when you talk about paying earlier Black artists and their descendants, say, “Oh, we can't find them?”

Ronald Sweeney: I would say to you bullshit. You know it's amazing: when I have a hit artist, and somebody wants to sign them, it's amazing how they find your number. All these record companies find your number, find where you live, because it’s what they want. When they don’t want something, you know, you can't find them because they just don't want to be bothered.

They can do anything they want to do. That's the one thing I learned by going to work for a record company. The first thing I realized when I got into a record company is they do whatever they want to do. They just don’t choose to do it.

In this particular case, they have records [of Black artists], they have the ability to advertise.

They could do all kinds of things [to find the artists and their descendants]. But they don't choose to do that. What they choose to do is, if you don't ask, and if you don't know what you're asking for, you're not getting it. I have gone through situations where I’ve gotten involved with a client and I have found millions of dollars just sitting there, all because of technicalities and the record companies they do not tell you.

Binta Brown: If Georgetown University can identify who the descendants are of the American slaves, from when there were no records even really being kept, and so that they can grant those folks scholarships. If they can do that, I can guarantee you that the record labels can figure out where the descendants are. It’s a non-argument. If they can grant scholarships to those people and provide them with a full education, why can't the record business do the same thing, when they’ve ostensibly kept better records? 

Kevin Greene: You're absolutely right about that. The music industry keeps pretty immaculate records. You can go way, way back and you can find records. You know that was one of the reasons why I suggested reparations would work better there than even with slavery.

Blake Hazard: One idea that’s raised is giving artists greater control over their music ownership, but some consider that to be fundamentally incompatible with the record label model. Binta, having worked with Chance the Rapper, who famously built his career as an independent artist, do you see working independently as the best avenue to work around some of the blocks in the industry? Could you see more resources being allocated toward independent artists?

Binta Brown: I think that in today's market, given how hyper-competitive it has become, that independence works well for people who can afford to be independent. So, Chance can afford to be independent, Taylor Swift can afford to be independent. All of the artists at the top of the chain can afford to be independent. They might need some marketing push or some marketing money. But they're able to make enough money off of their records and have large enough fan bases that the marketing deals come to them. So, I think that’s where it's hard as for people who are at the start [of their careers].

But in this day and age: if you can afford to be independent, if you can figure out a model with your team, as an entrepreneur, that works for you, then 150,000% go for it. All of my managed artists are independent artists: Peter Cottontail is independent. Every single one of my artists on my management roster is independent. And they want to remain independent. With maybe one or two exceptions, they have no interest in signing a deal, but that means that we have to be extremely strategic and crafty in generating revenue. And so I think it's a question for every team and each person individually. But there's enough that's changed structurally in our system over the course of the last five years. But I think it would be very, very difficult for there to be another Chance the Rapper who basically starts from scratch, with nothing and ends up being one of the world's biggest artists as an independent artist. I think it's extremely difficult to accomplish that, given how competitive it is today and the number of people who are releasing music. 

Blake Hazard: Thank you that’s really helpful. In addition to the structural changes that we've outlined here, where do you see other opportunities to support Black artists in ways that the current industry is often missing? For example, in this summer’s Recording Academy conversation, Care for the Culture, there were calls for supporting artists’ mental health in touring and dealmaking, and as a holistic matter. Would you have any suggestions for these kinds of changes, outside of the structural ones that we're talking about?

Binta Brown: Mental health, physical health, financial literacy, investment, investment investment. Access to technical assistance. By technical assistance, I mean legal assistance as well as a business management, and accounting. And it needs to start at the beginning, not just once people start having money. And then, education, education, education. It’s literally everything that you could think of but those, to me, would be the pillars. 

Ronald Sweeney: I think we should destroy the system and start over but that's my opinion.

Kevin Greene: Yeah it's pretty hard. I mean, it has to be deep reform. Restructuring, for it to really work.

Blake Hazard: Many of our USC law students are interested in working in the entertainment industry, especially in music, and in doing social justice work. How have you seen those pursuits overlapping in your own work, and do you have advice for law students and entertainment attorneys, in general, who want to be similarly effective in both fields?

Kevin Greene: Well, first of all I’m just gratified that people can even put those things together. Because when I started doing this work people we're not talking about IP and social justice. Those things just weren't discussed. So, it's very gratifying that people want to do that. To me, that is a sign of hope, immediately, that they're connecting the dots. Particularly for African Americans, who were excluded from almost every other aspect of society: they could be janitors, they could be maids, they could be entertainers. They couldn't be lawyers or executives. And so that's also why African Americans gravitated to that business [music], because we were allowed to be in that business. And so, for people to realize “wow there are real, serious social justice implications in this” is gratifying. Be involved in the industry. You can be involved now. That would be my advice.

Ronald Sweeney: I would concur.

Binta Brown: I will say be willing to challenge the status quo. The most important thing for young lawyers today is to make sure they've learned as much as they possibly can, and then to take that learning and make things better. You know when somebody says to you, “It has to be this way because that's the way it's always been done,” well, that is the greatest inhibitor to progress that has ever existed. You know, like that is the status quo. I think that there should be an obligation amongst young attorneys to find new structures, to suggest new ways of doing things, to be creative.  

The law provides us with guard rails. But at private contract, there are certainly traditions that are followed, but it doesn't mean that they're the right traditions for today. And so, be willing to challenge those and be smart about the way you challenge the traditions. Be smart about the way you seek to reform things. But don't simply stand by and allow the system to be the same way that it's been. You know, when more generations of new lawyers come through, I would have them ask themselves this question: Why is it that way, no really why is it that way, beyond just this is the way it's been done. And if the why doesn't make any sense, you need to start figuring out a better way to do it. Because, when the why doesn't make any sense, that’s the reason, a lot of the time, why it's not working.

I'll just give you the most basic example. Why has it been the case that there are all of the deductions from royalty and recording contracts that exist? When you start asking why those deductions exist, you start realizing that a lot of those deductions don't matter anymore, not in today's market, not with today's technology. You ask yourself: why is the record industry structured the way it's structured, where an artist gives up 100% ownership of something that they've created.

Ronald Sweeney: That they owned in the first place.

Binta Brown: Right. Why is it structured that way? And what are the other economic and financial and contractual models that we could be exploring and working with? What are the things that we can borrow from other industries? We're actually allowed to be creative. You don't break the law by being creative within the law. You actually make the law live and breathe and work for a broader group of people. And we should want that, because when we do that we're increasing the size of the pie, we're increasing opportunity, and we're actually making our business bigger. The record business could be exponentially larger than it is. It just takes people doing more than being extractive.

The last bit of advice I'll leave you with is: don't focus on the short term, to the exclusion of the long term. Too often, people are making decisions based on short term exigencies. So, for example, the young music lawyer, who's like, “Oh shoot I'm signing my artist to a record deal for $3 million! I'm going to get 5% of that!” They’re focused on that and are not realizing that that artist could get dropped. Or they know that artist could get dropped. Focus on the long term. Imagine, if you built careers. You’d keep getting 5% of everything that keeps going with an artist, or with a group of artists, and people keep coming back to you.

Blake Hazard: Well, that's a beautiful note to end on. Thank you so much for bringing it all back together. And thank all of you so much for your time.

end notes

[1] Professor Greene led a discussion entitled, Copyright Formalities as the Bane of African-American Artists from Blues to Hip-Hop, at the 2020 USC Gould Intellectual Property Institute.

[2] K.J. Greene, ‘Copynorms,’ Black Cultural Production, and the Debate Over African American Reparations, 25 Cardozo Arts & Ent. L. J., 1179 (2008).

[3]4 Ron Sweeney, The Elephant In the Room, Music Business Worldwide (June 7, 2020), https://www.musicbusinessworldwide.com/the-elephant-in-the-room.

[4]5 Fourth Est. Pub. Benefit Corp. v. Wall-Street.com, LLC, 139 S. Ct. 881 (2019)

*Special thanks to Tomi Johnson, President of Gould’s Black Law Students Association and Blake Hazard, President of Gould’s Music Law Society and Senior Articles Editor for Spotlight, for allowing Spotlight to rerecord their panel: Reparations and Structural Change: The Music Industry Response to the Black Lives Matter Movement.