Wednesday, 3 May 2017

The Thicke of It

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.

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