Morey and McIntyre are right (see 'Copyright Constraints and Royalty Affordances'): there are affordances within the copyright system. If we are equating affordances with leakiness, however, then the present is more leaky than the past. This is the case, at least, when it comes to working out songwriting splits. Current practice has expanded the definition of songwriting so that more contributors are receiving compositional shares. Authorship has expanded beyond lyricists and melodic composers: drummers, bassists, programmers and producers are now more regularly included in the splits.
The past is different. Here it’s harder to give credit where credit might be due. In ‘The Creative Studio Practice’ Morey and McIntyre quote a number of artists who use samples regularly. What becomes clear from these artists’ comments is that when they search for samples they are not primarily focused on lyrics, melody and harmony – the traditional areas where songwriting ownership has been centred. They are instead more interested in musical arrangements. And within these arrangements, it is the work of the rhythm section that interests them the most. One of the artists talks of finding ‘a drum loop that’s amazing’; another mentions ‘tiny little loops of a little bass run or bongo loop or something like that’; a third talks of sampling musicians who ‘were fucking properly good’.
As I have argued before, songwriting copyright has not always been fair to rhythm sections. In doing so I cited the same examples that Morey and McIntyre use: the ‘Funky Drummer’ and the ‘Amen’ break. This isn’t coincidental either: these are the classic cases of drumming injustice. When these recordings are sampled it is the drum breaks of Clyde Stubblefield and Gregory Coleman that people are after. Unfortunately for these drummers their rhythmic invention did not receive compositional credits. Consequently, they have not earned royalties when their breaks have been sampled. Morey and McIntyre argue that this is wrong and that the wrong people are being paid. They point out that the credited writers of these tracks ‘have little or no authorial input in the sections of music being used’.
While it’s great that contemporary artists are thinking more carefully about songwriting shares, and it’s also great that the copyright system is flexible enough to allow them to be ‘highly pragmatic when it comes to dividing the spoils of [their] creativity’, it’s hard to be wholly sanguine. This is because the system loses this flexibility when it comes the past. The credits on old songs seldom change. In fact, I can’t think of any old records whose credits have been changed in light of the fact that a break has been sampled. The judges in copyright cases are unlikely to give the drummer some. Instead, when it comes to old recordings, it is the writers of lyrics, melodies and harmonies who are finding affordances when it comes to sampling practice. They are the ones who are able to make claims for copyright infringement, even if it is the groove or the timbre of the recording that the samplers are after.
There are other areas in which the copyright system remains watertight. Arrangers and producers are never going to receive compositional credits for cover versions. Consequently, Gregory Coleman will never get a songwriting credit for the Amen break and nor will the other members of his band: the Winstons’ record is a cover version of Jester Hairston’s ‘Amen’.
We cannot turn to songwriting credits alone to help sampled artists gain a better reward. However, there are possible other methods of redress. If we look again to Zac’s three compositional layers – the song, the musical arrangement, and the track – it can be argued that current copyright law does in fact reward the ‘authors’ of each of these components. In the European Union, it is not only songwriters who receive royalties each time a song is broadcast or purchased; the performers of the song (the ‘arrangers’ in Zac’s terminology) are also rewarded, as are the owners of the sound recording (the ‘track’).
In the UK the performance royalty that relates to sound recordings is collected and distributed by PPL. This organisation divides the income 50:50 between the owners of the sound recording and the performers who appear on the track. Within the performer share there are methods for proportioning income between ‘featured’ musicians (those who have been signed by the record company) and ‘non-featured’ musicians (such as session musicians and backing singers). The featured artists generally receive 65% of the performer royalties.
PPL also have methods for distributing performer royalties when tracks include samples. Their rules state that ‘all Performers on the Sampled Recording are included in the performer line-up of the Subsequent Sound Recording irrespective of which part of the Sampled Recording has been included in the Subsequent Sound Recording’. This means that all the performers who are credited on the record that has been sampled will also be credited as being due for performer royalties on the record that includes the sample. Regarding the sampled artists, the musicians who are classified as non-featured on the original recording will be similarly classified as non-featured on the recording that includes the sample. Featured musicians on the sampled recording will, on the other hand, now be classified as ‘non-featured’ on the recording that includes the sample.
PPL’s sampling rules are generally in thrall to songwriting copyright: they are focused on the overall song, rather than the section that has been sampled. They do, however, include a clause that allows a sampled musician to be listed as an ‘Other Featured Performer’. This is on the condition that: (i) it is agreed by the record company who is releasing the recording that features the sample, as well as by the artists who appear on this new recording; (ii) ‘if this is determined by PPL to be reasonable in all the circumstances on the basis of that Featured Performer’s contribution to the Subsequent Sound Recording’. And so, it is possible for Clyde Stubblefield and Gregory Coleman to be rewarded when their drum breaks are sampled and they might just be considered to be featured performers. There remain problems, however. One is that the income received will still usually only be a minor share of the performance royalties; another is that the performer royalty in sound recordings is not as well protected outside of the European Union (this particularly applies to the US).
Ideally, therefore, sampled artists would not just be rewarded via the performer share of sound recording copyright; they would be rewarded for the use of the ‘track’ as well. When artists use samples there are two uses of copyright that need to be cleared: the copyright in the song and the copyright in the sound recording. Record companies usually own the copyright in the sound recording. As I’ve written elsewhere, this has been dubiously justified on the grounds that: a) they have paid for it; and b) 90% of signed artists fail to break even. A fairer system would see more artists owning more sound recording copyrights. This would provide another means for performers to gain income for their sampled work.
There are further reforms that could take place. At present songwriting and sound recording copyrights are cleared in different ways. The songwriters usually receive an authorial share of the song, and are thus rewarded each time it is purchased, played or performed. Sound recording copyright is usually bought out with a one-off fee. In the majority of cases this ends up costing more than the songwriting copyright, but only because such a large proportion of records fail to break even: the cost of the sound recording clearance is fixed no matter how well the record performs. When it comes to the minority of records that do make a profit, however, the sampled songwriters can end up making far more money than the owners of the sampled sound recording. This is because the income rises proportionally with the size of the hit. A fairer and sometimes more rewarding system would see sound recording copyright awarded by usage rather than a one-off fee.
There’s another way in which sound recording copyright could be brought into line with songwriting copyright: it ought to be possible for it to be split between different owners. Shares could be allocated to the owners of the sound recordings that are being sampled and to the owner of the new sound recording that has been created. If more artists had ownership of sound recording copyright, it would help to bring economic parity between songwriters and performers. It could therefore replace the need to give every contributor to a recording a songwriting share. A transformation in this area would also help past performers. While it’s unlikely that the songwriting credits of old songs will be changed in light of the way they have been sampled, there are occasional glimmers of hope that sound recording policy will be reformed.