Digital Covers: Modern Platforms, Historic Exploitation

Long before playlists and algorithms shaped musical success, Black artists operated within an industry built to extract creativity while limiting ownership. Blues, funk, soul, and early rock innovators created the foundation of American popular music, yet routinely saw their work rebranded, repackaged, and monetized by others. From blues to modern hip-hop, Black musicians have contributed profoundly to American culture, yet copyright law, combined with exploitative contracts and statutory limitations, often ensured that they benefited least from their own innovation. Today’s streaming economy raises a familiar question: has the system changed, or have the inequities simply evolved?

Divided Copyrights and Compulsory Licensing

U.S. copyright law recognizes two distinct rights in recorded music: the musical composition, which protects melody and lyrics, and the sound recording, which protects a specific recorded performance. These rights are governed by Title 17 and are frequently owned by different parties.

The compulsory mechanical license under 17 U.S.C. § 115 allows anyone to record and distribute a cover of a lawfully released song without the songwriter’s permission, so long as a statutory royalty is paid. That royalty is paid only to the owner of the musical composition, not to the performer or the owner of the original sound recording. While the law guarantees payment, it does not guarantee control, market parity, or fairness - particularly for Black artists who historically assigned both rights to labels or publishers early in their careers.

Exploitative Contracts and Lawful Appropriation

In theory, compulsory licensing ensured compensation. In practice, it magnified inequity. For decades, Black musicians were steered into recording contracts that exchanged ownership for modest advances and vague royalty promises. These agreements often transferred both composition and sound recording rights, stripping artists of future income before the value of their work was realized.

Artists like Muddy Waters and Howlin’ Wolf, whose Chess Records recordings shaped modern rock, received minimal royalties while others profited. Little Richard sold the rights to Tutti Frutti early in his career for a reported $50, only to watch sanitized covers by Pat Boone dominate the charts. Those covers were lawful, but because rights had already been assigned by contract, royalties flowed to corporate owners rather than the artists themselves. These outcomes were not anomalies; they reflected standard industry practice.

The Limits of Style Protection

Modern courts continue to wrestle with how far copyright protection extends. In Williams v. Gaye, 895 F.3d 1106 (9th Cir. 2018), the Ninth Circuit upheld a verdict finding that Blurred Lines, written by songwriters Pharrell Williams, Robin Thicke, and Clifford Harris, Jr., infringed Marvin Gaye’s Got to Give It Up, even without copying melody or lyrics. The decision suggested that a protected selection and arrangement of musical elements could support infringement, unsettling an industry long reliant on stylistic borrowing.

That opening was quickly narrowed. In Skidmore v. Led Zeppelin, 952 F.3d 1051 (9th Cir. 2020) (en banc), the same court rejected claims that the song Stairway to Heaven, written by Jimmy Page and Robert Plant, infringed Taurus, written by Randy Wolfe of the band Spirit. The court emphasized that copyright does not protect musical building blocks such as chord progressions or bass lines and warned against extending protection to style or feel. The court cautioned against reading Williams too broadly and reaffirmed that style, genre, and feel remain unprotectable as a matter of law.

From Covers to Code and the Music Modernization Act

From nineteenth-century blues to modern hip-hop, Black musicians have shaped American music more than any other group. Yet streaming platforms now replicate historic inequities at scale. Recommendation algorithms often surface “similar” artists with greater label backing before originators fully benefit, while streaming compensation is measured in fractions of a cent per play.

In response to mounting criticism of digital royalty systems, Congress enacted the Music Modernization Act of 2018 (MMA). The MMA updated copyright law for the streaming era by streamlining mechanical licensing, improving royalty accuracy, and modernizing songwriter compensation. It created the Mechanical Licensing Collective (MLC), a centralized entity responsible for issuing blanket mechanical licenses to streaming services and distributing royalties to songwriters and publishers. The Act also revised rate-setting standards to allow songwriters to seek higher royalties and extended federal copyright protection to certain pre-1972 sound recordings.

While the MMA improved transparency and reduced administrative failures, it left core power imbalances intact. Streaming services still negotiate primarily with labels and publishers, not individual artists. Artists who assigned rights early in their careers often see little benefit from improved royalty pipelines. For many Black musicians, the problem is not missing royalties, but ownership itself. The MMA fixed payment mechanics without addressing the underlying inequities rooted in exploitative contracts and unequal bargaining power.

Conclusion

From divided copyrights and compulsory licenses to exploitative contracts, unprotected musical style, and opaque streaming economics, music law has repeatedly failed Black artists. While technology has transformed distribution, it has not dismantled the legal structures that allow Black creativity to be extracted without equitable reward.

As Black History Month invites reflection not only on cultural achievement but on the systems that shaped it, the legal history of the music industry demands scrutiny. Honoring Black musical innovation requires more than celebration. It requires reimagining copyright, contracts, and compensation models so that Black artists can own, control, and benefit from the culture they create.

Sources

17 U.S.C. § 101, Sound Recordings

17 U.S.C. § 102(a)(2), Musical Composition

17 U.S.C. § 114, Exclusive Rights in Sound Recordings

17 U.S.C. § 115, Compulsory Mechanical Licenses

Aaron Hall, Streaming Platform Algorithmic Bias & Revenue Allocation, Aaron Hall Attorney, https://aaronhall.com/streaming-platform-algorithmic-bias-revenue-allocation.

Carlie Porterfield, How Little Richard Was Exploited By A Bad Record Deal And Never Fully Cashed In, Forbes, May 9, 2020, https://www.forbes.com/sites/carlieporterfield/2020/05/09/how-little-richard-was-exploited-by-a-bad-record-deal-and-never-fully-cashed-in.

Denise Oliver Velez, Black people create, white people profit: The racist history of the music industry, Daily Kos, June 14, 2020, https://www.dailykos.com/stories/2020/6/14/1948464/-Black-people-create-white-people-profit-The-racist-history-of-the-music-industry.

Skidmore v. Led Zeppelin, 952 F.3d 1051 (9th Cir. 2020) (en banc).

Structured Asset Sales, LLC v. Sheeran, 75 F.4th 86 (2d Cir. 2023).

Wardah Rahman and Armando Javier Gimenez, UBeyond the Beat: The Fight for Fair Compensation for Black Musicians, Columbia Black Pre-law Society, Dec. 2, 2024, https://blackprelaw.studentgroups.columbia.edu/news/ubeyond-beat-fight-fair-compensation-black-musicians.

Williams v. Gaye, 895 F.3d 1106 (9th Cir. 2018).