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.