In my
previous blog entry I discussed the difference between the
‘formalist’ nature of songwriting copyright and the ‘physicalist’ nature of
sound recording copyright (hopefully, this is more interesting than it sounds).
Basically, the copyright of songs expands beyond the format in which the song
is embedded, whether that is sheet music or a recording. Consequently,
plagiarism expands beyond the inscribed form. You can infringe copyright even
when you do not copy the tune exactly. What is at stake is the ‘style and
sentiment’ of the work. Sound recording copyright, in contrast, is bound by the
recording itself. You can only transgress it if you use the physical
incarnation of the work. If your recording sounds like another recording, but
does not use that recording, then copyright is not violated. As a result of
this difference, Anne Barron has argued that protection of songwriting
copyright is ‘thick’ while the protection afforded to sound recording copyright
is ‘thin’. Jason Toynbee welcomes this. He argues that the formalist conception
of songwriting copyright has led to a
‘hypostatization of
form’, whereas the physicalist limitation of sound recording copyright has enabled
‘phonographic orality’ to spread.
This
talk of thinness and thickness can be misleading, however. There are occasions
when sound recording copyright is more restrictive and expansive than
songwriting copyright. In the first instance, songs have to be ‘original’ works
in order to attract copyright in UK legislation. In contrast, all sound
recordings automatically receive copyright protection, whether they are
inventive or not. Secondly, while there is a similarity between songwriting
copyright and sound recording copyright in British law, in that transgression
is limited to the copying of ‘
the work as a whole or any substantial part of it’, there are differences regarding what makes a part significant. When
it comes to songwriting copyright, case law has defined a significant part as a
‘
a substantial, a vital, and an essential part’ of the composition; when
it comes to sound recording copyright most people now believe that you need to
clear any use of a recording, no matter how small. Thirdly, there are
differences regarding which musical elements are protected. In his analysis of legal
cases relating to the infringement of musical compositions, Simon Anderson has
found that most decisions have been focused on ‘melody and lyrics, as these are
the elements to which originality, and therefore copyright, can most easily be
shown to exist’. Sound
recording copyright, in contrast, encompasses all musical (and non-musical)
elements that are present in the original recording.
If
songwriting copyright is thick, it is also loose. Composers are generally free
to incorporate rhythms, timbres, chord changes and production techniques from
previous works. They can even borrow melodies and lyrics if they are shown to
be commonplace. Sound recording copyright, meanwhile, is thin but rigid. On the
one hand, you can mimic huge swathes
of previous recordings. On the other, it is not legally permissible to use even
the smallest element of a recording unless you pay for it. This is very much a property law: trespassers will be
prosecuted.
A further twist is
that the thinness of sound recording copyright has enabled
songwriting copyright to be loose. The performative and timbral elements of
music are protected as sound; they are not protected as song. This is the case
even if producers, engineers, bass players and drummers are being given a share
of songwriting credits. By way of example, U2 famously split their compositional
income equally between band members. However, if I were to copy the bassline of
‘I Still I Haven’t Found What I’m Looking For’ in my own song it is unlikely
that I would be successfully prosecuted. If I adopted the main melody or Bono’s
words, then I would. There is, however, one exception to this custom. Texture
and rhythm - including Adam Clayton’s basslines - receive compositional
protection if use is made of the actual recording. Sampling triggers the
copyright in the sound recording and
the copyright in the song. The latter occurs even if the compositional elements
in play would otherwise fall foul of the ‘significant part’ test. It should be
noted, however, that these compositional payments are being made because it is
accepted practice within the music industries; they are not the result of case
law.
Are
things changing? One factor that I missed in my analysis of the ‘Blurred Lines’
decision is that it offends the formalist and physicalist boundaries of music
copyright. If Pharrell Williams and Robin Thicke had sampled ‘Got to Give It
Up’ they would have held their hands up: payment would have been made to Marvin
Gaye (or his estate) as the composer, and to Motown (or their inheritors) as
the owners of the sound recording. ‘Blurred Lines’ does not sample Marvin
Gaye’s recording and nor does it use any of its melodic parts or lyrics. What
it instead does is imitate the feel and the groove of Gaye’s record. These
elements have previously escaped the thick looseness of songwriting copyright
and the thin rigidity of sound recording copyright, and it is this freedom that
has enabled writers and musicians to build upon each other’s works. Pharrell
Williams is correct in his depiction of the threat of the ‘Blurred Lines’
decision:
If we lose our freedom
to be inspired, we’re going to look up one day and the entertainment industry
as we know it will be frozen in litigation ... Everything that’s around you in
a room was inspired by something or someone. If you kill that, there’s no creativity.
