Words and Music: That's the Joint

In the last blog entry I wrote about the declining status of status of lyricists and the declining share of songwriting income they might happen to receive. Here, I’m going to look at another reason for the death of the 'author', one that might be occasioned by the nuances of copyright law, or it might be occasioned by the fact that musicians aren’t very good at filling in forms.

British copyright law has viewed music and lyrics in two ways. It increasingly took a Bono-ite line, regarding music and lyrics as being one, but not the same. In its origins, however, the law was Spice Girls-eque. It viewed the lyrical and musical elements of a song as being two that become one. Within the past 12 months, that Spice Girls point of view has come back into focus. Music and lyrics can now dream of being together (almost) forever. 

The first British legislation to fundamentally address recorded music was the Copyright Act of 1911. It advises that ‘a musical work shall be deemed to include any words so closely associated therewith as to form part of the same work’. The 1988 Copyright, Designs and Patents Act reversed this policy. Here, ‘“musical work” was described as being a work consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music’. Under this legislation, lyrics had to lead a separate life. They were deemed to be ‘literary works’ rather than ‘musical works’. This had an effect when songwriters filed their songs with PRS for Music and declared whether they were authors (the writers of the lyrics) or composers (the writers of the music). In the UK if you were identified solely as a lyricist you could not be awarded joint authorship of a song with the musical composer(s). This is because joint authorship was defined on the basis that ‘the contribution of each author is not distinct from that of the other author or authors’. Literary and musical works were deemed to be distinct. PRS for Music regarded the two practices in this way. In the advice that they handed out about copyright law, they stated that ‘where two or more persons do collaborate but it is possible to determine the separate parts attributable to each author it will not be a work of joint authorship’.

It has nevertheless been the case that most PRS members have failed to classify themselves as either a composer or author. They have instead presented themselves as a hybrid kind: the composer-author. There are a number of reasons why the members have chosen this designation. One is because there are few songwriters who only write lyrics. It is often the case that the lyricist is the singer. In the process of working on their songs with musicians, many singers are involved in composing the top-line melody along with the words. Conversely, the musicians will sometimes chip in with lyrical ideas. A second reason is because some songwriters and/or their publishers fail to understand the distinction between composer and author and thus claim to be both. Alternatively some songwriters and publishers fail to complete this section of the PRS works form, in which case they will be listed as composer-authors by default. A final reason why songwriters and their publishers have chosen the composer-author designation is because joint authorship has real effects. It means that the ownership of the work cannot be divided in any way. Therefore, if an act does an instrumental cover version of a song that has lyrics, the lyricist will still get paid. Similarly, if there is a foreign language version of a song, the original lyricist maintains a share. Copyright lasts until 70 years after the death of the last ‘joint’ author. Consequently, it has been financially advisable for all contributors to a song identify themselves as composer-authors, at least if they’re thinking with their dependents in mind.

American songwriters receive similar benefits, but in their own country there has been a different legal framework. US copyright law has not deemed lyrics and music to be distinct. The 1976 Copyright Act groups them together under the category of ‘works of the performing arts’. Joint authorship has also been classified in a different manner. In America a ‘joint work’ is a 'work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole'. The vast majority of songs are automatically classified as joint works. It is believed that it is the plan of most lyricists and composers to weld their contributions together in a unified work of art. This law even applies when lyricists and composers are divorced by time and space. If they intend their work to come together as part of a whole, it doesn’t matter where they were when they composed their own part. It is only when there is a lack of consent in the merger that lyrics and music are treated as separate within American copyright law.

There are countries within the European Union who have a similar outlook. They see that, conceptually, a song with words is created as a joint enterprise. This is also the view taken by the EU's legislators. In the same 2011 directive that extended the duration of sound recording copyright from 50 to 70 years, it was deemed that the majority of songs are the result of joint musical and lyrical enterprises. The document states that Article 1 of EU Directive 2006/116/EC should be amended to read: 'The term of protection of a musical composition with words shall expire 70 years after the death of the last of the following persons to survive, whether or not those persons are designated as co-authors: the author of the lyrics and the composer of the musical composition, provided that both contributions were specifically created for the respective musical composition with words'. The UK implemented this directive on 1 November 2013.

Despite these changes and the differences between British, European and American law, the registration of songs looks much the same: most modern songs are classified as being written by composer-authors. As such, we know that there is a lyrical input in there somewhere, but the precise origin of this input is hard to locate. Everybody, it seems, is a lyricist now. They are all composers too. 

Words and Music: Doing the Splits

In his book Performing Rites, Simon Frith tells the story of a correspondence between the novelist/lyricist Margaret Radclyffe-Hall and the publishers Chappell and Company, which took place in 1918. Radcylffe-Hall had written the words to the hit song ‘The Blind Ploughman’. She had not received any royalties, however, and wrote to the publishers seeking redress. William Davey, the chairman of Chappell, excused his company’s parsimony on the grounds that:

Unfortunately, we cannot afford to pay royalties to lyric writers. One or two other publishers may, but if we were to introduce the principle, there would be no end to it. Many lyrics are merely the same words in a different order and almost always with the same ideas. Hardly any of them, to be frank, are worth a royalty.

He concedes that he has ‘admiration’ for the words to ‘The Blind Ploughman’ and offers her a one off payment of 20 guineas for her troubles. Frith states that Davey’s ‘letter is interesting in a number of ways, not least for its revelation that Chappell was, apparently, routinely breaking the law – the Copyright Act of 1911 included lyricists in musical composition regulations even though music publishers had campaigned against this’. Frith is alluding to clause 19.2.b.ii of the Act, which states, ‘a musical work shall be deemed to include any words so closely associated therewith as to form part of the same work’. Here, British law was following the Berne Convention of 1886, which sought copyright protection for ‘musical compositions with or without words’.

            Frith is right. It is interesting that Chappell were refusing to pay Radclyffe-Hall. What’s less clear is whether the publishers were breaking the law. If the issue was to do with sheet music, then presumably so: Chappell would have been printing copyrighted words without permission. If the issue was to do with royalties for public performance or for the sale of records (the mechanical right), then things are more complicated. It is mechanical royalties that clause 19.2.b.ii is referring to. Despite the 1911 Copyright Act's recognition of the integral importance of lyrics, however, it set no value on what they were worth. In fact, as far as I am aware, British copyright law has never determined what portion of a song’s performance or mechanical royalties should go to the lyricists and what portion should go to the musical composers. The responsibility for determining these splits was first taken on by music copyright societies. France took the lead here. It established the world's first collection society in 1851. It is of consequence that this society was formed jointly by a lyricist, a composer and a publisher, a partnership that is reflected in its title: Société des auters, compositeurs et éditeurs de musique (SACEM). It was determined that these three parties would share copyright money in equal proportions. When the UK eventually set up its own Performing Right Society (PRS) in 1914, the same split was adopted. Other countries have used different methods, however. The German society, GEMA, originally determined that publishers could have no more than a 25% share. Moreover, while France has retained is three-way split, other countries have moved towards a model where the publisher has a 50% share and the songwriters split the remaining 50% between them (albeit that in private the publisher might also give the songwriters a portion of their share).  

For much of the 20th century, whatever the size of the remaining portion, its most common allocation was to be divided equally between a lyricist and a composer. It was in the inter-war period that much of the ‘Great American Songbook’ was composed. Many of these classic 1920s and 1930s songs were written by partnerships: Harold Arlen and E.Y. Harburg; George and Ira Gershwin; Richard Rodgers and Lorenz Hart; etc. and etc. In each case the former wrote the music and the latter wrote the lyrics, and in each case the composers and lyricists were allocated an equal split of the royalties. The Brill Building songwriting teams of the 1950s and 1960s also operated according to this split, as did the songwriting partnerships in British beat groups. It has been prevalent in musical theatre and has been used by classicist indie songwriters. The idea of a divided split between lyricist and composer is also maintained in much copyright advice.

It has, however, been challenged in a number of ways. One of the problems that traditional splits have presented for self-contained groups is that they are equitable for some members, but not for others. The songwriters will end up richer than the other performers in the band. In many cases the high earners will be the guitarist (who is receiving royalties for writing the music) and the singer (who gains royalties for the words). This disparity has caused bands to split. Alternatively, they might amend their ways. Queen used to allocate songwriting royalties to the principal songwriter of each song, but by the end of their existence were splitting shares for all songs four ways. The Clash were another group who progressed towards presenting their songs as group compositions. Other groups, among them some of the longest-lived, have decided from their inception to allocate shares equally to all members. U2, REM, Coldplay and Elbow all operate in this manner. Others devise more complicated methods. Each member generally receives a royalty share for every track, but these are not allocated equally. The most ‘important’ members (still commonly the singer and the guitarist) will receive a larger allocation. These practices aren't limited to ‘authentic’ guitar bands, either. Some pop acts, such as the Spice Girls and the Sugababes, split their shares between writer/producers and the singers in the group, and the same is true for many solo artists who work with songwriter/producers. In the pop world, too, there is a wide variance in shares. Sometimes they will be split equally, other times more complicated divisions are devised.

Songwriting spits have also been complicated by the practices of sampling and interpolating. Hip-hop tracks, in particular, are a mess of credits. Many, in fact, remain perpetually unresolved. Hip-hop and dance music have also turned traditional musical hierarchies on their head. Where it used to be the case that a song’s melody and words were deemed to be of most value, these genres have seen more credit accorded to the beat. This could be considered an ironic outcome for hip-hop, the most word-based of all popular music forms. It was this genre, however, that shone a light on how unfairly some copyright allocations had been devised. The raps of hip-hop have traditionally rested upon sampled drum breaks. The drummers who devised these breaks have failed to see any royalties for their work. Clyde Subblefield played the famous 'funky drummer' solo, but it's composition credits go to the composer of the song's 'melody', James Brown. Gregory Coleman devised the 'Amen Break', often considered to be the most sampled drum solo of all, and yet the royalties go to Jester Hairston, writer of 'Amen', the song that Coleman's band, the Winstons, were covering. Fewer drum breaks are sampled today. Rhythm tracks are instead created by producers, who will then send these beats to other songwriters so that they can be completed with melodies, harmonies and words. As if mindful of the past injustices meted out to drummers, these producers will demand half of the songwriting royalties. Correspondingly, there are now songwriters who specialize in writing only one part of the song, whether that be the hook or an eight-bar of rhymes.

 There’s something good about these changes. The complexity of pop composition is being recognised and more of the interested parties are receiving some shares. It is also good that popular music copyright is no longer in thrall to classical conventions, with their emphases on melody and harmony over rhythm and timbre. Nevertheless, if the old melodist/lyricist split represented an unfair reflection of the contributors to a work, the new methods fail to bring us any closer to knowing exactly who did what, or towards an understanding of what any of it is really worth.

They also have another consequence. In many cases it is rhythm that is on the rise. When it comes to rock music, the bass players and drummers in bands now appear on more songwriting credits. When it comes to dance music, the producers of rhythm tracks are often the ones who are determining the splits. It is generally assumed that this is happening at the expense of the other musicians, and it is true that many guitarists and keyboard players now receive a lower share of the royalties. There is, however, another activity that is getting squeezed. On the surface, lyrics are still worth 50% of the songwriting shares. If you look at the credits for any song, at least half of the writers' income is going to somebody who is credited as an 'author'. When it comes to popular music, however, few of these writers are only responsible for the words. Most are instead listed as 'composer-authors', meaning that they have an input into both the music and the lyrics. The complicating factor here is that it is not just the main lyric writers who are adopting this credit, in many cases it is being applied to all of the members of a band. It is also being applied to all the members of songwriting teams. And it is being applied no matter how great or small the contribution to the lyric writing is. In fact, there's really no way of checking whether these numerous composer-authors actually contributed to the lyric-writing process. As a consequence, the author who was responsible for writing the majority of the lyrics might well end up with less than 50% of the songwriting share. The composer-author title is reflective of modern songwriting practice. At the same time, it allows songwriters to circumvent the strict 50/50 lyricist/composer split that some of the collection societies require. It has also had another consequence: the composer-author credit has helped to provide longer-lasting copyright protection. But that’s another story for another day . . .

Vinyl Reviewed by Stephen Wagg in Leisure/Loisir

A great review of Vinyl: A History of the Analogue Record has appeared in the Canadian journal Leisure/Loisir. Stephen Wagg of Leeds Metropolitan University describes the book as an ‘absolute must’ for anyone with a specialist interest in the subject. He states that it is ‘a work of impressive scholarship’, adding that ‘It’s painstaking in its attention to detail’ and that it ‘strikes a perfect balance’ between this detail and the ‘broader sweep of history’. While welcoming Stephen Wagg’s praise, I also agree with his moments of reservation. He states that the book has ‘the very occasional excess’, and he’s right that I should have toned down some of the claims for vinyl. He also points out that the first chapter is different in tone to the rest of the book. I agree with him here as well. This chapter was written first and it is more pretentious than the others. Despite several revisions, some of this pretention would not be washed away. The full review can be accessed here.