Here Comes Success

Most popular music biographies, whether in print or on film, have the same lacuna. They deal well with the pre-fame years. This period is often covered in great detail, particularly in musicians’ autobiographies, which may say something about the arrested development that fame forces upon its recipients. Music biographies also deal reasonably well with the years of the fame, albeit that this period frequently turns out to be more dull than the pre-fame years.

What is missing or what tends to be obfuscated is how this fame is achieved. There is usually a quick leap between obscurity and mass adulation. This can be frustrating, particularly for those who want to have similar success. The aspirant musician is left with no clue as to how it is achieved.

            There are various possible reasons why the attainment of success is glossed over. One is that artists and their employers would like it to be mystified. The work that goes into making it is either more prosaic or more undignified than they would want to be made known. Another reason is that the success might not be as ‘popular’ as it has commonly appeared. The cash nexus between the artist and fan might be superseded by various behind-the-scenes deals.

            Or perhaps the attainment of success genuinely is peculiar. Artists may well have made it without knowing quite what has happened. One of the filmic conventions for demonstrating rapid success is to show a montage sequence of escalating hysteria, accompanied by swirling media headlines documenting the artist’s rise. I used to be frustrated with these, but have come to think that this maybe is how success feels. Take-off can be so sudden that it feels as though it has taken place in jump cuts. Meanwhile, the newspaper headlines neatly summarise the role of the media in both covering and amplifying success.

            The second episode of ‘Cilla’ was on British television last night. This three-part drama documentary is charting the career of the singer Cilla Black. The first episode was concerned with her pre-fame years. Last night’s episode documented the arrival of fame. Unusually, it was more interesting than the early years. It also made a better stab than most at communicating how the attainment of success feels. It helped that the great Sheridan Smith was playing the lead role. It also helped that the true Cilla story contains elements that are both dramatic and sudden. She moved quickly from being on the fringes of the Beatles’ scene (famously being the cloakroom attendant at the Cavern Club) to being a signed recording artist.

            That said, the programme glossed over a great deal and included much dramatic licence. Although Cilla was shown in the recording studio, there was no indication that she promoted her releases. Instead, she was shown back in Liverpool, waiting for news from the distant metropolis. She received this news via a public call box. While there might have been an element of truth in this, surely she could have listened to the chart run-down on a radio. Nevertheless, I found myself sharing her elation when she heard that she had made it to number one. I found myself thinking, yes, that is what it must feel like. This is because it showed Cilla on the cusp and in-between. It was her who had made the hit record, but its ascension was happening apart from her, while she remained in her old world. The phone box was a portal to new places and to different time-frames, just as it is in Dr Who. Maybe I just want the mystification to remain.

Fight for Your Right to Equitable Remuneration!

The British Copyright Act of 1911 contains a crucial line. Clause 19(1) states that ‘Copyright shall subsist in records, perforated rolls, and other contrivances by means of which sounds may be mechanically reproduced, in like manner as if such contrivances were musical works’. In order to establish a songwriting copyright in relation to sound recordings (and other ‘mechanical’ contrivances) there was a need to equate records with sheet music, i.e. ‘musical works’. Artistic copyright was strongest in relation to the printed word or score. Here, authors and their publishers received copyright income in relation to each copy sold. Consequently, one of the methods used to establish this equivalence between sheet music and sound recordings was to claim that the groove of a record was a form of writing (see ‘Audio Books’ for further details).

As a result of clause 19(1), songwriters received a copyright share in record sales, just as they had done in sheet music. It was originally deemed that 5% of the retail price of record should go to the authors of musical works. In anticipation of this measure, various ‘mechanical’ copyright collection societies were formed. These eventually morphed into the Mechanical-Copyright Protection Society (MCPS), which was established in 1924.

There was another consequence of the Copyright Act. Despite its intentions, it demonstrated that there were differences between mechanical reproduction and musical works. When it came to musical works, the author of the work was deemed to be the songwriter. Songwriters were therefore the ‘first owners’ of these works and were free to exercise their rights as they wished. Clause 19(1) crated a separate copyright for mechanical reproducers, now commonly referred to as sound recording copyright. The owners of this copyright were not the songwriters, however, nor were they usually the performers who appeared on the records. Clause 19(1) instead decided that ‘the owner of such original plate [the master copy of the record] at the time when such plate was made shall be deemed to be the author of the work’. The owners of these plates were the record companies. Accordingly, they were regarded as the first owners of the sound recording copyright.

Today, most recording artists receive payment in the form of advances from their record companies. If they recoup those advances, they also receive royalties. As Peter Martland has outlined, there was a different method of paying popular musicians and singers during the first three decades of the twentieth century. While a few opera singers and classical musicians received royalties, this was rare for popular artists. The most successful of these might be paid a yearly retainer to record exclusively for a record company. When it came to making records they would also receive a session fee but no royalties. Lesser-known popular artists would receive session fees only. Essentially, they were being paid a one-off sum to perform in a recording studio.

At the time of the 1911 Copyright Act, these recorded performances were usually destined for domestic consumption: most records were played in people’s homes. In the coming years recorded performances increasingly came to be heard in performance contexts. As reproduction technology improved, records were more regularly played in public spaces. They also began to be broadcast, forming part of the repertoire of radio networks from the early 1920s onwards. And by the late 1920s recordings could be heard in films.

By this time the performance right for musical works was beginning to be established. The Performing Right Society (PRS) had been formed to administer this right in 1914 and had gradually gained converts amongst songwriters, composers and publishing companies. With the advent of new technologies, performance right income became increasingly important. However, despite the desire of clause 19(1) to establish copyright parity between mechanical reproduction and musical works, it was not generally assumed that this right existed in relation to sound recordings.

In 1933 the Gramophone Company brought a test case to clarify this point. Carwadine & Co had been playing recorded music in their coffee shops; the Gramophone Company deemed this to be a breach of their performing rights. In the resulting court case it was ruled in the record company’s favour that clause 19(1) did warrant a performing right in sound recordings. In the following year Britain’s two major record companies, the Gramophone Company (which by then had become EMI) and Decca Records, joined forces to create Phonographic Performance Ltd (PPL) to administer the performing right in sound recordings.

As the owners of sound recording copyrights, record companies were now legally entitled to all the performance right income earned by their records. The recording artists, who they had hired to perform on these records, were not due any money when these records were themselves ‘performed’. What followed is one of the quirks of copyright law. The first owners of the sound recording copyright shared their performance income with their recording artists even though, initially at least, there was no legal requirement for them to do so.

According to PPL’s own history, it was their choice to give the artists a share of this income. In their publicity materials they state, ‘This intelligent and far-sighted decision was particularly remarkable because of its voluntarily nature, bearing in mind that there was no legislative or other external pressure on PPL at the time’. In its early years PPL allocated 80% of its income to record companies and 20% to the artists on their records. These splits were amended in 1946; henceforth 67.5% went to the record companies, 20% to featured artists, and 12.5% to the Musicians’ Union (MU).

PPL also came under external pressure. Stephen Barnard believes that it was, in fact, the MU who were responsible for artists receiving a share of performance income. He has written that ‘Under the original [PPL] agreement, revenue received for public performance of records went direct to the participating companies, but this was modified in 1935 under pressure from the MU, whose members could in law claim no royalties for the public performance of their recorded work (the copyright resting with the companies themselves)’. He adds that it was ‘New negotiations between PPL and the MU’ that resulted in the share allocated to the MU in 1946. The MU’s position in these negotiations is understandable. For a long time the organisation campaigned against sound recordings, as it felt records provided a cheap and inferior alternative to its members live performance work. This stance was later embodied in the Union's slogan, ‘keep music live’. (Ironically, the 'keep music live' campaign, which was initiated in 1964, was funded by recordings: the MU didn't allocate the money it received from PPL to the artists who appeared on records, but instead used it collectively. The 'Phonographic Funds' were distributed in various ways: some money went to members who had fallen upon hard times, other funds were used to finance various large-scale orchestras, some was spent on a series of May Day dances, and a 'large proportion' was used for the Union's promotional campaign.) 

Why should PPL concede to the MU's demands? Sarah Thornton has listed several possible reasons. First among them is the fact that the Union helped PPL to maintain control of its repertoire, as they forbade their members from recording with non-PPL companies. Secondly, MU members monitored record performances and copyright infringement at a local level, something that the understaffed collection society was unable to do. In addition, John Williamson has suggested that 'fear on the part of the record companies of a recording strike and a challenge to PPL's collection arrangements meant that they were willing participants in post-war discussions with the MU'. It should nevertheless be noted that the MU was only receiving 12.5% of PPL's money - there was a further 20% that was allocated to artists, and this money was distributed directly to the owners of the sound recording copyrights. Moreover, PPL continued to pay artists a share of their income, despite the fact that records came to be seen as less of a direct rival to live performance. They also continued to do so despite the declining power and membership of the MU. It might be that another aspect of PPL's farsightedness was envisioning that the artists’ share would eventually be enshrined in law.

It took a long time to reach this point. Section 5 of the 1956 Copyright Act clarified that a performance right existed in sound recordings, but failed to mention any artist rights. The UK signed up to the 1961 Rome Convention, article 12 of which states that an 'equitable remuneration' is due when recordings are broadcast or communicated to the public. There is a lack of clarity in this article, however. It states that this remuneration should be paid to 'the performers, or to the producers of the phonograms, or to both', and that it can be divided by 'agreement between these parties' or by domestic law. It was not until the European Union ‘Rental Directive’ of 1992 that the matter was settled. Article 8(2) ruled that ‘Member States shall provide a right in order to ensure that a single equitable remuneration is paid by the user, if a phonogram published for commercial purposes, or a reproduction of such phonogram, is used for broadcasting by wireless means or for any communication to the public, and to ensure that this remuneration is shared between the relevant performers and phonogram producers’.

The UK’s Copyright, Designs and Patents Act was amended in respect of the Rental Directive. In 1996 a section titled ‘Right to equitable remuneration for exploitation of sound recording’ was added. Clause 182D(1) states that: ‘Where a commercially published sound recording of the whole or any substantial part of a qualifying performance - (a) is played in public, or (b) is communicated to the public […] the performer is entitled to equitable remuneration from the owner of the copyright in the sound recording’. PPL’s literature explains what they did next:

When considering this new legislation, and after lengthy deliberations, the PPL Board agreed that the performers should benefit by receiving 50% of all ‘qualifying’ income on a track by track basis. This was a voluntary decision as legislators declined to recommend any particular split of PPL income. This meant that every single performer, whether featured or non featured would have to register their details with PPL or one of the newly formed UK performer organisations to enable their royalties to be forwarded to them.

The featured performers are those who have an exclusive contract with the record company issuing the record. Non-featured performers are commonly session musicians and backing singers. PPL has fairly complicated methods for dividing this income between the two types of performer. In general, however, the income is split 65:35 between featured and non-featured artists. This revenue has become increasingly important. In 2012 IFPI noted that ‘Performance rights income now accounts for 6 per cent of record companies’ trade revenues worldwide’. It would be higher still if it weren’t for the fact that copyright legislation has forced record companies in some countries to share this income equitably with their artists.

Finally, I would like to return to clause 19(1) of the 1911 Copyright Act and its idea that the copyright in records should operate ‘in like manner’ to the copyright in musical works. The Rental Directive has brought a form of parity between writers and artists. When it comes to the performing right, the songwriter members of PRS commonly receive 50% of this income directly, while 50% is paid to their publishers. The songwriters’ share is safeguarded in this manner because members assign their performing right in their compositions to the collection society. Their income from this right does not have to be paid off against publisher advances. In a similar manner, recording artists now receive 50% of the performing right income directly and this too does not have to paid off against their record companies’ advances. There remains a fundamental difference, however. Artists may well receive a 50% share of the performing right in sound recordings, but this share has been established without any fundamental change being made to the authorship or ownership of sound recording copyrights. In the majority of cases these still belong to record companies. But, surely some light has been let in here? The performing right underlines a conceptual problem that exists when considering record companies to be the authors of sound recordings. If artists are now considered as equal partners in the performing right, why not make them equal partners in the underlying sound recording copyright as well? 

Copyright Constraints and Royalty Affordances

I’ve recently had some correspondence with Justin Morey from Leeds Metropolitan University, whose research interests are copyright and digital sampling. Morey's work has a different bent to many copyright theorists, who can tend to be alarmist in the face of copyright extension. Siva Vaidhyanathan, for example, thinks that copyright law now only benefits big business. It is stifling the opportunities for creators and consumers. She claims that copyright law has ‘lost its mission . . . to encourage creativity, science, and democracy’, and suggests that ‘it rewards works already created and limits works yet to be created’. What Vaidhyanathan yearns for is a return to a time when copyright legislation was ‘thin’ and ‘leaky’. For her a ‘leaky copyright system’ encourages creativity and ‘allows users to enjoy the benefits of cultural proliferation at relatively low cost’.

            Morey doesn’t argue against writers like Vaidhyanathan, but he doesn’t think there is a copyright dystopia either. Instead, he provides glimpses that, when it comes to music, the copyright system does remain ‘leaky’, just as Vaidhyanathan desires. What’s most interesting is the means by which he arrives at this point: he talks to music creators. He is particularly focused on dance musicians who use samples. The results of his interviews with them are illuminating. Despite the fact that the laws relating to sample use have been tightened up and the cost of clearing samples has become more expensive, ‘None of the producers interviewed … advocated an end to the clearance process for substantial samples’.

            His interviewees, in fact, find opportunities within the copyright system, both when they are using copyrighted material and when they are creating it. Key to Morey’s view about the creative process is the idea of affordances and constraints. He states that ‘part of the enjoyment of the creative process … is in having to work with the inherent restrictions’. For his interviewed artists, some of these restrictions are technological, such as working with samples in which frequencies cannot be removed or working with machines whose editing capacities are not great. They are also financial and legal. Morey argues that:

Increasing costs of sample clearance and the financial demands of publishers to reach agreement for publishing clearance have introduced constraints to the amount of samples these producers are able to use and still derive economic benefit from their work. However, this in turn has become an affordance, as it has led some of them either to apply the techniques of sampling to their own recordings, or to take less significant or recognizable sections when they do sample in order to minimise the costs.

One of the artists states that:

it’s those restrictions which I think really test and encourage your creativity… So yeah, you tend to take less obvious bits of records and obviously you hunt for more obscure records, or you chop something within an inch of its life so even you’ve forgotten what you sampled…The new cautious approach in itself becomes a limitation, but not necessarily a bad one. I probably choose less musical elements to sample [now] and probably add more of my own musical input on top of it.

And if these artists are finding new ways of avoiding copyright payments, they are also finding new ways of getting paid. In an article that he has co-written with Phillip McIntyre, Morey outlines the judicial view of songwriting authorship: 'it can be argued that legal interpretation of song ownership in the case of disputes has tended towards the conclusion that the song equals the vocal melody, underlying chords and lyrics, i.e. Those elements that would have appeared in music publishing's initial main source of income, printed sheet music'. Morey and McIntyre then quote a number of academics, who suggest that songwriting credits should be expanded to include a wider ranger of contributors. Albin Zac, for example, argues that a pop recording contains:

three distinct compositional layers; the song, the musical arrangement, and the track. The song is what can be represented on a lead sheet; it usually includes words, melody, chord changes, and some degree of formal design. The arrangement is a particular musical setting of the song. It provides a more detailed prescriptive plan: instrumentation, musical parts, rhythmic groove, and so forth. The track is the recording itself. As the layer that represents the finished musical work, it subsumes the other two. That is, when we hear a record, we experience both song and arrangement through the sounds of the track.

Jon Fitzgerald, meanwhile, points out that: 'various authors have stressed the importance of considering the sound recording as musical text ... Hennion goes so far as to say that "the song is nothing before the arrangement" - arguing that creation "occurs at the moment of orchestration, recording, and sound mixing"'. For Morey and McIntyre it is sampling that reveals just how complex the authorship of a sound recording can be, and it is sampling injustices that illustrate how things could be changed. Credits shouldn’t be restricted to the writers who came up with most of the song, as it is often a particular segment – the solo, the break - that sampling composers are keen to access. And credits shouldn’t be restricted to the writers who originated the song, as it is often the musical arrangement or texture of a recording that sampling composers desire. Moreover, it is not always the lyrical, melodic, or harmonic elements that they are after: many sampling composers, particularly those working within dance music, are interested in grooves.

            Morey and McIntyre don’t despair, however. They find affordances in the registering of compositions. Songwriting copyright doesn’t have to be assigned to lyricists and melodic composers only. Rock groups can opt to give songwriting shares to drummers and bassists, and dance acts can give them to programmers and producers. In fact, the advice that PRS give to songwriters is that ‘the decision is entirely theirs’ when it comes to working out the splits. Consequently, Morey and McIntyre find a range of approaches among the artists they interview. Some groups divide up their songwriting shares equally, while others have a primary songwriter. They find dance acts dividing credits between the producer of the rhythm and the writer of the topline melody; elsewhere they find engineers, programmers and editors receiving shares.

            In summary, they state that ‘the way creativity is remunerated … is one that recognises a multiplicity of realistic situations and necessarily down-to-earth considerations in determining “the split” of … collaborative creative output’.

            I'm not keen to see copyright extended in any direction. At the same time, however, I find Morey and McIntyre's work useful. It reminds us that no matter how expansive the legal system gets, music creators will always find affordances in which to make their work. In fact, one of ways to create interesting work is to operate at the limits of that system.

Jarndyce v Jarndyce

I’ve thought that a good (and hilarious?) high-art musical joke would be to do a hip-hop track called ‘Jarndyce and Jarndyce’. It would take its name from the hereditary legal case that runs through Dickens’s Bleak House. Jarndyce v Jarndyce drags on for several generations, gradually consuming a large inheritance with legal costs. The same would be true for the hip-hop track. It would obviously be a huge hit, generating tens of thousands of pounds in royalties. None of these would ever be paid out, though. The track would be crammed full of samples, deliberately targeting some of the most litigious music catalogues. There would be some early Rolling Stones, a bit of the Stranglers, several samples from Marvin Gaye, and some of George Clinton’s work thrown in for good measure. The lyrics, too, would be stolen from a variety of sources, including hip-hop artists who have suffered their own legal misfortunes. The chorus would feature a number of interwoven melody lines, each taken from the most obvious of hits. None of this borrowing would be credited or cleared. ‘Jarndyce and Jarndyce’ would instead welcome claims of copyright infringement. More than this, it would want to set the various copyright owners in conflict with each other. The aim, ultimately, would be to create a track whose shares are so complicated they are never resolved. And while this conflict is in motion the song's royalties are consumed.