Mapping Beyoncé's 'Hold Up'

When I first heard Beyoncé’s Lemonade I thought we were entering a new age of sophistication when it comes to sampling. Not only are the sampled tracks musically appropriate, they are thematically appropriate too. On this album of infidelity and heartbreak we hear excerpts of ‘Can’t Get Used to Losing You’ by Andy Williams, the Yeah Yeah Yeahs' pleading ‘Maps’, and Isaac Hayes’ version of ‘Walk on By’, in which we find another protagonist who ‘can’t get over losing you’. There’s a whole lot of signifying going on.

            It would seem that the use of samples is more contingent, however. Take ‘Hold Up’, which incorporates the sample from Williams and the interpolation from ‘Maps’. This song has a complicated genesis and was not originally intended for Beyoncé. In fact, it began as nothing more than a Tweet, which was sent in 2011 by Ezra Koenig, the singer of Vampire Weekend. He paraphrased ‘Maps’, writing to his followers, ‘hold up . . . they don’t love u like i love u’.

            Three years later, Koenig was invited by the producer Diplo to contribute hooks to some loops. One of these loops featured the introduction to ‘Can’t Get Used to Losing You’. The recording was of interest to Diplo for its kitsch ska rhythm, rather than for its lyrical content. Koenig thought back to his Tweet. He introduced a new melody to his reworking of ‘Maps’. He also added a supplementary, Biblical refrain: ‘can’t you see there’s no other god above you, what a wicked way to treat the man who loves you’. Beyoncé heard this version. Koenig’s lyrics were changed to ‘no other man above you, what a wicked way to treat the girl I love you’. He has stated that ‘from there a lot of other people got involved in writing the verses, things changed, but essentially the hook stayed the same’. Even so, he was still not sure if it would make Beyoncé’s album or if he would use it instead as a Vampire Weekend song.

            It did appear on Lemonade. In the process ‘Hold Up’ was transformed. Koenig has stated, ‘The idea that those words now are contextualised by this album, by the video, by her as a performer and curator, I like it  . . . 99% of the world will always hear those words and associate it with Beyoncé now. And that makes sense . . . I wrote this hook - of course I feel some sense of ownership over what I did - but it doesn’t feel like my song, she really did bring a deeper resonance and meaning to it’. She brings new significance to the Williams sample as well. So maybe the use of those sources is not so contingent after all.

            Although Koenig now views ‘Hold Up’ as Beyoncé’s song, this is not the story told by the songwriting credits. She has had to split the royalties with 11 other writers, including Koenig and Diplo. Moreover, it has been claimed that the contemporary songwriters get minor shares in the work, while the authors of the sample and the interpolation get the majority income. From this perspective, Beyoncé is not creating a new work; she is instead giving us her version of two old ones.

            The generous shares for Mort Shuman and Doc Pomus, the writers of ‘Can’t Get Used to Losing You’, are understandable. Diplo’s loop of this recording is used for the duration of ‘Hold Up’; it is the musical bedrock of the entire track. Their credits also follow standard sampling practice: if a recording is used prominently, its songwriters will be rewarded handsomely.

            The use of ‘Maps’ is different, however. Although Beyoncé credits it as an interpolation, it is arguable that this really is the case. There is no use of the Yeah Yeah Yeahs’ melody or of the feel of the track. The only thing taken is the paraphrased lyrics. These were written by the band’s singer, Karen O, but due to American joint authorship rules each member of the group receives royalties for their re-use in ‘Hold Up’. But why do they receive anything at all? ‘Hold Up’ takes eight fairly commonplace words.

One reason is that their origin can be traced. Koenig’s Tweet and his openness about the genesis of ‘Hold Up’ have made it clear that the words were taken from the Yeah Yeah Yeahs' song. A second is that American writers are becoming increasing litigious in this area, as the various accusations against the lyrics of Taylor Swift’s ‘Shake It Off’ attest. Ultimately, in crediting ‘Maps’, Beyoncé and her team have taken heed of the old adage that where there’s a hit there’s a writ.

There is one final quirk of copyright law. If ‘Maps’ has been called ‘They Don’t Love You Like I Love You’, the re-use of these words would probably have escaped without charge. It is not possible to copyright titles. Hence, Calvin Harris and the Disciples’ ‘How Deep is Your Love?’ does not credit the Bee Gees, and Justin Timberlake’s ‘Cry Me a River’ does not credit the Julie London song. It is also the case that ‘Hold Up’ does not credit previous songs that have used the same title. In addition, future songs called ‘Hold Up’ will not have to credit Beyoncé’s either. That’s as long as their usage is restricted to these words. If they sample Beyoncé’s recording, however, they will have to credit ‘Hold Up’ and all the other works it includes. We will end up with a recording with vast songwriting credits. Post-structuralists will be happy too. There will be multiple resonances. Listeners will variously recall Beyoncé, the Yeah Yeah Yeahs, Andy Williams, Mort Shuman, Doc Pomus, Ezra Koenig, Diplo and more. Bring on the endless play of signifiers!

Slippery People

It has been hard to escape the makers of T2: Trainspotting this week.

The director (Danny Boyle), the stars (Ewan McGregor, Ewan Bremner, Jonny Lee Miller and Robert Carlyle) and the film’s composer (Rick Smith of Underworld) have been on the promotional trail. They have been discussing the original Trainspotting, which came out in 1996, as much as they have the new film. This is not surprising. As well as featuring the same cast, crew and characters as the first film, T2 constantly harks back to it. The new story touches the old one at the edges. This includes the music, which echoes the original soundtrack. Smith has included chords, textures and rhythms from ‘Born Slippy’, the Underworld song that memorably closed the original.

Much of the discussion has been about ‘Born Slippy’ itself. Speaking on the Today programme on Tuesday, Smith was asked how the song came to be in included in Trainspotting. He replied:

It was very serendipitous. Danny [Boyle] was using our album at the time, Dubnobasswithmyheadman, as what you would call the heartbeat or the tool that use to get the rhythm of the film together - without any intention of course of the whole film being about that album and the music - and took a break one day for a lunch, walked across the road, out of Soho, into HMV and saw the vinyl for ‘Born Slippy’ in the racks, bought it, as he tells me, and listened and immediately knew that that was how he wanted to finish the film.

This is a nice story, but it is not true. I know because it was one of my old friends, Neil Williams, who suggested the track for the film. He put the record straight on Friday, writing to Radio 5’s Film Review show, which was featuring Danny Boyle as a guest. Neil’s letter stated:

I was fortunate enough to be one of the assistant editors on the original Trainspotting movie. During the shoot it was my job to synchronise the picture and sound which meant I had the rare privilege of effectively being the first person to see and hear all the footage shot for the film. As these remarkable images and sensational performances came together before my eyes there was this overwhelming realisation that I was at the centre of something truly special. I remember Danny sending a music cassette from the shoot in Glasgow to our cutting rooms in London, which outlined his ideas for source music to soundtrack the film and on it were Bowie, Blondie, Björk, Brian Eno, Iggy Pop. There was also a note suggesting that we try and find dance music similar to the theme produced by Leftfield for Shallow Grave on which I was a trainee. Danny and I shared similar music tastes and we both loved the likes of Leftfield, Orbital and Andy Weatherall. I brought in a collection of CDs with track suggestions written on the cases in white chinagraph pencil, which we used to mark the edits on the film. I had a then little known follow-up single to the album Dubnoheadwithmybassman by Underworld, which was an album I knew Danny liked and I wrote on the CD ‘try track 2’. This was ‘Born Slippy’, a track which was often played at house parties I went to with my friends. There has been no greater moment in my film career than when Masahiro, the editor, told me that Danny had chosen it to be included in the film and showed me the initial edit of the astonishing end sequence. Some weeks later, after picture lock, I got a call from Andrew McDonald asking if I could come out to the sound mix and could I bring the ‘Born Slippy’ CD with me. I travelled out to the mix the same day, was asked if I could leave the CD there so that the sound technicians could transfer it as they didn’t have one. Andrew eventually returned the CD to me at the start of the next project, A Life Less Ordinary, so essentially it’s my CD that bears the now faded chinagraph note that is actually on the soundtrack of the film.

After hearing the letter, Boyle replied: ‘Ah. There you go. I remember Neil’.

Many popular music academics argue against the cult of authorship. They think that it is wrong to look up to musicians and composers and it is particularly remiss to regard them as having some sort of unique genius. These theorists view popular music as an essentially collaborative form and argue that little of it is wholly original.

Nevertheless, as these conflicting stories reveal, the cult of authorship will not go away. If anything, it is proliferating. It is extending beyond songwriting and performance to encompass the sourcing of music for films. The ‘Born Slippy’ saga also illustrates the centralising tendency of authorship. It would seem fitting if it was Boyle who initiated the use of the track. After all, as Smith’s story indicates, ‘Born Slippy’ became the pulse of the film, it was the inspiration for a visionary director. It was also the start of an important collaborative partnership. Smith worked with Boyle on the opening ceremony for the London 2012 Olympics, in addition to working on the sequel film.

            But it was Neil who first chose it. He deserves some credit too. The use of ‘Born Slippy’ helped to make Trainspotting a landmark film, while the film made ‘Born Slippy’ a landmark song. It had been largely ignored when it first came out. There had been a buzz about Underworld, following singles such as ‘Rez’ and ‘Spikee’ and the album Dubnoheadwithmybassman. But ‘Born Slippy’ was something of a flop. I remember discussing it with Neil when it was released, telling him that I found it disappointing. He was the only person I knew who was really into it. He was also the person who said to ignore the instrumental version, which the band originally promoted as the main mix of the song. For him it was the ‘Nuxx’ mix that worked. The original single made it to number 57 in the UK charts. A year and a half later, following on from the Trainspotting movie, ‘Born Slippy’ was re-released with the Nuxx mix up front. It made it to number 2. Soon half of Britain was shouting ‘lager, lager, lager, lager’.

Tomorrow Creeps in this Petty Pace

Last night I listened to the Beatles’ ‘Tomorrow Never Knows’. It was one of those times when I marvelled at the freshness of a sound recording. It’s 50 years old for Chrissakes! And yet it is still astonishing. Listening to it you can find yourself declaring that this track is more sonically exciting and challenging than the majority of music made today.

            Some people find this longevity problematic. There is a belief that popular music should be constantly progressing. We should not be harking back to older records. There is something seriously wrong with pop when the sounds of the past are more innovative than the sounds of the present. This is part of Simon Reynolds’ case against the ‘retromania’ of our times.

It struck me that if people do have an issue with musical nostalgia, it is not centred upon songs. It is the steadfastness of old sound recordings that troubles them. There have always been long-lasting tunes. It doesn’t bother us that ‘Stardust’ is nearly a century old and is still being sung. If anything we enjoy the longevity of compositions such as ‘Greensleeves’, ‘House of the Rising Sun’ or ‘Scarborough Fair’. Conversely, there can be something irksome about the fact that Revolver still tops best albums lists, or that the Stone Roses’ debut album is still being praised.

            There are folk reasons for this. Songs are iterated. They are remade by the generations and they shine anew. Sound recordings, in contrast, are static. If they last, they last in their initial form. They can be remixed and they can be sampled but you cannot escape the original. They are monolithic.

            There is also an issue of auteurship. Although all music has multiple points of influence, we are used to the idea that songs are individually authored or are co-authored. The idea of the songwriting author is enshrined in copyright law. The duration of copyright in musical composition is tied to the lives of the individuals concerned. In Britain, it lasts until 70 years after the last of the co-authors to die.

            In contrast, the auteurship of sound recordings is not as well established. There is an issue of just who it should belong to: the songwriters, the musicians, the producers, the engineers? British copyright law awards it on the basis of financial risk. It goes to the party who has made the arrangements for the recording to take place. This legislation does not recognise artistry; it instead rewards record companies. Copyright is not tied to the life of an individual. It lasts for 70 years from the date that the record is issued to the public.

There is nevertheless an increasing sense that sound recordings are artworks in their own right. Some of the pangs of retromania are no more than growing pains: sound recording is becoming canonised. We have no problem with the idea that the greatest works of literature, fine art and musical composition achieve classic status. We will eventually have no problem with the idea that the greatest sound recordings are worthy of the same accord. Music retail, music broadcasting and music journalism have already moved in this direction. They kowtow to the records of the past; they appreciate their artistry; they help to establish the auteurs. Copyright law is lagging behind.

And yet there is one final twist. There is a reason why recordings such as ‘Tomorrow Never Knows’ are timeless: their makers had one eye on the future. Until recently the imperative in popular music was either to be forward looking or to ‘be here now’. The celebration of old records makes this harder: musicians are now saturated with and intimidated by the music of then. If any records of today are going to be canonised, it will most likely be the ones that are not overly indebted to the past masters. It is a question of balance. The greatness of sound recording should be acknowledged; the greatest sound recordings should also be transcended. 

Copyright is Odd

For a long time I’ve had an interest in the value accorded to lyrics and to lyricists. As part of my investigations, I have done some work on joint- and co-authorship rules. Different countries have different policies regarding the coming together of words and music in the form of a song. Some regard lyrics and composition as forming an act of joint authorship, while others consider them to be separate. The UK has changed from the latter to the former. In 2013 an amendment was made to the Copyright, Designs and Patents Act, recognising works of co-authorship.

            These decisions can matter. Co-authorship has meant that the term of copyright for lyrics or music has been lengthened for some songs. Joint authorship can safeguard a lyricist’s share of copyright when an instrumental or foreign language version is made of their song.

            On Wednesday I gave a talk about this subject at Birkbeck, contributing to a workshop on Copyright and Business Models in Music Publishing. It was a good event, attended by people from the industry alongside academics. One of my conclusions was that the UK’s new co-authorship rules have had little effect on the practices of contemporary songwriters, but that this is interesting in itself, as it is evidence of the fact that artists can find ways to circumvent copyright law. In summary, I stated that ‘music copyright is odd’. Stephanie Dales, who was representing the Intellectual Property Office at the event, picked up on this in her own talk. She said that she would alter one word, though. Her conclusion from working in the field of IP law is that all copyright is odd.

            You can access my paper here. 

Between Protection and the Public Domain Lies a Lifetime (plus 70 years)

In battles over the scope, value and morality of copyright three main players are put in play: the authors (who create the material that can be copyrighted); the companies (who make money out of those copyrights, through assignment or ownership); and the public (whose access to these copyrighted goods can be restricted, dependent on how much the goods cost).

When companies have wanted to extend copyright they have called upon the figure of the author. This practice has a long history. In 1710, Britain passed the world’s first copyright law: the Statute of Anne. This Act, which was concerned with the book trade, set a time limit on the period for which intellectual property could be owned. Authors were granted the initial copyright in their works. This right could be assigned to another party, but its duration was restricted for an initial term of fourteen years. If the author was still living at the end of this period, copyright could be extended for a further fourteen years.

            Prior to the Statue of Anne, the Stationers’ Company had dominated the British book trade. This organisation had reserved the ownership of book copyrights to its members and viewed the duration of ownership as being perpetual. According to Adrian Johns, the booksellers were ‘horrified’ by the prospect of a limited term and they successfully lobbied parliament during the passing of the Statute to have its proposed authors’ rights reduced.

            These booksellers began to think differently about authors. In the mid-1700s, when the initial 21-year period of the Statute of Anne was reached, there was a ‘battle’ over the duration of copyright. On the one side were booksellers from Scotland, who were not members of the Stationers’ Company. They argued that the Statue of Anne created a firm 21-year limit. On the other side was the Stationers’ Company itself. These booksellers argued that the Statute of Anne supplemented, rather than replaced, British common law. Although the Company’s power had originally derived from Licensing Acts, which had given them their perpetual monopoly rights over the publishing of books, their claims to ownership were now made via their authors. They argued that writers had a property right in their works whose duration was without limit. This right could be assigned, but it could not be curtailed. Initially, the Stationers were victorious. The author’s common law right was affirmed in the case of Millar v. Taylor (1769). This ruling was soon overturned, however. The case of Donaldson v. Beckett (1774) firmly established a set duration for copyright within British law. In doing so, it created the idea of an authorial public domain.

            Although author’s rights had failed to deliver the Stationers’ desired aims, the author emerged as the figure upon which it was best to pin arguments for copyright extension. Lee Marshall has noted how writers henceforth assumed a central position within copyright law, signalled by later copyright acts, which began to associate the duration of copyright with the birthdate of the author, rather than with the date of the publication of the work. In 1814 the term of copyright was extended to the author’s lifetime or 28 years after publication, depending upon which was longer. In 1842 it was extended to author’s lifetime plus seven years or 42 years from publication. By the 20^th century it was only the author’s lifetime that mattered. The 1911 Copyright Act introduced a term of ‘the life of the author and a period of fifty years after his death’. The 1988 Copyright, Designs and Patents Act extended this to ‘70 years from the end of the calendar year in which the author dies’.

            This is not to say that authors have been the main beneficiaries of these changes. Marshall warns us to be wary of their glorification. He has sated that

the Romantic author is the primary rhetorical tool which copyright holders use to counter copyright infringement and gain stronger copyright protection. This is because the centralisation of the author leads copyright to be understood not as an economic issue but as an aesthetic, and thus a moral, one.

Siva Vaidhyanathan has stated similarly that ‘The unrewarded authorial genius’ is the best way of ensuring ‘maximum protection’, while Mark Rose has noted that ‘the notion of the author as the creator and ultimate source of property’ has been ‘at the heart of the long struggle over perpetual copyright’. In short, perpetuity seems more reasonable when the case is being made on behalf of authors, rather than for the companies to whom their rights have been assigned.

            The laws that have benefitted the publishers of books have also benefitted the publishers of songs. In 1777 a test case was won by Johann Christian Bach and Carl Friedrich Abel, which established that ‘a musical composition is a writing within the Statute of the 8^th of Queen Anne’.  The duration of songwriting copyright has subsequently been twinned with and reliant upon the campaigning that has taken place in respect of books.

            Sound recording copyright has worked differently, but here too the Romantic artist has been employed. Performing artists are rarely the initial owners of sound recording copyright; this honour is instead more commonly awarded to their record companies. The music industries have nevertheless been aware that artists are the best means to extend copyright. In 2004 the British trade journal Music Week launched a campaign to increase the duration of sound recording copyright from 50 to 70 years. In their editorial they advised:

Let us be clear: this is not an issue which affects just record companies. And if it is presented as such, any attempt at change will be far harder to achieve. This affects the entire creative community – and that is a message which must be hammered home.

In placing the artistic community at the centre of their campaign they made some peculiar claims, arguing that

When the 50-year term was introduced in the UK, half a century ago, it was intended to reflect life expectancy. Today, when Britons can expect to live for longer, an 80-year-old musician cannot earn royalties from the work he recorded in his twenties – just when he needs the money most. That is a scandal.

While it might have been true that Britons were living longer, Music Week’s knowledge of copyright history was suspect. The 50-year term had been introduced in the 1911 Copyright Act, rather than the 1950s. Moreover, sound recording copyright was explicitly differentiated from copyrights whose duration was based on the life of the artist. Duration was instead pinned to the year in which the recording was first released.

            There were further oddities about Music Week’s campaign. Industry insiders and experts were called upon, several of whom talked about sound recording copyright reverting to artists. Pete Jenner stated ‘Any extension of copyright must benefit the creators/performers. That could be achieved by giving copyrights back to creators’. Music Week noted that Feargal Sharkey had successfully ‘regained ownership’ of the Undertones sound recording copyrights. Sharkey himself suggested that sound recording copyright should follow the ‘rights reversion’ policies of the music publishers.

            This idea of reversion came to be enshrined in law. In 2011 the European Union issued directive 2011/77/EU, which extended the duration of sound recording copyright to 70 years. Although they pinned this term to the date of release, rather than the life of the performer, Clause 8 of the directive suggests – erroneously – that the initial ownership of sound recording copyright resides with artists:

The rights in the fixation of the performance should revert to the performer if a phonogram producer refrains from offering for sale in sufficient quantity, within the meaning of the International Convention on the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, copies of a phonogram which, but for the term extension, would be in the public domain, or refrains from making such a phonogram available to the public.

I welcome the fact that this directive has provided record companies with a ‘use it or lose it’ scenario regarding their sound recording copyrights. However, the idea that these rights might revert to artists is bogus. If they do manage to get hold of them, most of them will be owning them for the first time. 

A Bit of a Blur

Although the ‘Blurred Lines’ legal case hasn’t been heard yet, it’s still making the news. Today’s Complete Music Update reported on the fact that neither ‘Blurred Lines’ nor the song that it is allegedly indebted to, Marvin Gaye’s ‘Got to Give It Up’, will be played in court. Instead, the case will be decided by analysing the sheet music for each song. This is clearly to Robin Thicke’s and Pharrell Williams’s advantage, as the sheet music for ‘Got to Give It Up’ doesn’t include any of the distinctive backing vocals or rhythmic nuances that inspired the creation of ‘Blurred Lines’.

This reliance on sheet music will strike most popular music fans as being unfair. It is evidence that the legal system is geared towards classical conceptions of composition. On the one hand, it favours melody and harmony. On the other hand, it ignores what Paul Théberge has termed popular music’s ‘primary site of creation’: the recording studio.

There is some sort of legal logic in this, however. Artists don’t usually own their sound recordings; record companies do. It is the composition of ‘Got to Give it Up’ that is on trial, and it is the composition that is owned by Marvin Gaye’s estate. Howard King, the lawyer who is defending ‘Blurred Lines’, has said: ‘A truly fair trial requires only a comparison of the compositions, not the sound recording which is not owned by the Gayes. Given the fact that the compositions have absolutely no substantial similarities, there is little chance the Gayes can prevail at trial or on any threatened appeal’.

Another way of looking at this is that artists should own their sound recordings. They are more obviously the creators of these artifacts than record companies are. Moreover, it is in creating the sound recording that the principal act of pop authorship often takes place.

One final thing. I’m pretty sure that the focus on sheet music in this case is a quirk of American law. I used to work for PRS for Music and the regular advice we gave to songwriters was that, in order to copyright their works, all they needed to do was to post a sealed copy of the recording to themselves and ensure that the received package remained unopened. And so, in the UK the recording can be considered to be the composition. And yet who usually claims to be its author?

Past Affordances

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. 

Composure

Can songwriting set popular music free? Well, it depends upon what it is being set free from and who is calling for its liberation.

            If it is people from the outside who are making these demands, then the answer to popular music’s problems should not be found in their complaints about songwriting. As I explored in the previous entry, some ‘high’ cultural theorists are overly focused on the compositional process. They look at pop songs and see standardization everywhere. They argue that hit records create ‘response-mechanisms wholly antagonistic to the ideal of individuality in a free, liberal society’. What these theorists tend to miss is that popular music is about more than its tunes. It doesn’t need to ape the ‘total’ compositional methods of classical music to have revolutionary potential. The best response to these theorists is not to answer their complaints about songwriting with songwriting, but to look instead at the areas in which popular music excels. It is the life force of popular music that can be radical and redemptive. It is here, in the human performance that gets captured in the grooves, that you can find the ‘magic that can set you free’. You can find anarchy and attitude, solace and soul. This is the democratic process that the best pop records enact. If the music were to prioritize composition in the way that cultural snobs demand, then popular music’s own particular magic would dissolve. In the order of things, it would forever play second fiddle to classical music, the composed form par excellence.

            But lets forget about outsiders for a minute. What does a focus on songwriting look like from within popular music? What difference can it make to people who are actually making and consuming this form? Here, there is a potential for composition to be democratizing. Conversely, there is a potential for the ‘life force’ of popular music to be tyrannical. Far from being a magic that can set you free, the prioritizing of ‘feel’, ‘soul’ and ‘attitude’ can distort our perceptions of the music. It gives kudos to musicians who have a supposed ‘authenticity’. It places a focus on the lives of the artists rather than quality of the work. It also favours men. Keeping it real or being true to the streets are by and large masculine pursuits. They should not be the standards by which all popular music is judged.

            A turn to songwriting can open things up. When someone like Noel Gallagher centres his greatness on his songwriting ability, it is invitation to be measured against Bjorn and Benny, rather than Brown and Squire. If fans are told to focus on the ‘song’, they can forget about authenticity for a while. They no longer have to suffer the ‘perfect pop’ of Big Star or Teenage Fanclub and can listen to genuinely perfect pop instead, including records that actually made the charts. Putting songwriting first helps to give female artists a greater chance. If we ignore the poets, seers and sages who have become the Romantic pin-ups of popular music’s history and instead concentrate upon composition, the gender biases of popular music and artistic genius can start to dissolve. In this order of things, Carole King has as much validity as Jim Morrison. It is no coincidence that female musicians are having increased success now that popular music has a greater focus on songwriting. After years of boys showing off about their noise, the music is regaining a sense of composure.

            This is not to say that girls can’t make a great noise too, but because the phallic grind of popular music has become encoded as male, the noise of girls has to be thought out in a different manner. In order to create the gushing thrust of ‘Whole Lotta Love’, Led Zeppelin didn’t have to write much. They merely had to take Muddy Waters’ ‘You Need Love’ by way of the Small Faces ‘You Need Loving’ and play and produce the riff with a power it had not previously known. In order to create their female rock music, the Slits had to think about the semiotics of each chord and each beat.  The group’s guitarist, Viv Albertine has stated, ‘The four of us constantly questioned everything. Each note had to be as exciting as the one before it and no clichés’. With her ‘mosquito’ tone, she aimed to replace ‘the old, oppressive patriarchal way that guitars sound’. Warpaint, a contemporary female four-piece, have also expressed a determination to write in a textural rather than climactic fashion. They want to avoid the punchlines that are common in both the music and comedy of men.

            And so where does this leave us in our search for popular music and liberty? Will we find emancipation in the grain of the voice or in the structure of the music? I’m going to equivocate. The thing is, I like both Led Zeppelin and the Slits, and I have found moments of freedom in records by each of these bands. Popular music can be a standardizing and reactionary force; it can also be challenging and cathartic. And these polarized tendencies can be found in both the structure and the grain. The songwriting process can reinforce the edicts of capitalism in both its musical and economic aims; it can also force us to think twice about societal norms. The concepts of soul and groove can become clichéd and can reinforce racial stereotypes; they can also bring out untapped emotions and encourage listeners to search across cultural divides. Authenticity can be a bind and a distraction, but some role-model artists can encourage people to think twice about how they live their lives.

A record can be transformative because it does exactly what the artist intends it too. Alternatively, a record can be revolutionary because audience members reinterpret it in a radical way. That reinterpretation doesn’t have to be ironic either; it can be more earnest than the author’s original intentions. Moreover, the divide between the artistic and the re-interpreted doesn’t have to be made along rock and pop lines, with the 'untouchable' works of art falling in the former category and the reworked works of art falling in the latter. In fact, records from any genre can be used in different ways: audiences can find what they want in them – or what they hate in them – by accepting or rejecting the composers’ intentions. Ultimately, the reductive and redemptive aspects of popular music work in accordance with everything else about this popular form: we takes our choice. 

Should the Masters own the Masters?

Ann Harrison’s Music: The Business is one of the most useful guides to the UK music industry. When it comes to sound recording copyright, though, it does present something of a puzzle. Harrison addresses clause 9.2 of the Copyright, Designs and Patents Act 1988, the legislation that still determines copyright issues in the UK. This is the clause that is concerned with the ‘authors’ of different types of copyright. Harrison refers to the original wording of the bill, which states that when it comes to the authorship of a sound recording ‘that person shall be the person by whom the arrangements necessary for making the recording are undertaken’. Harrison then explains, ‘This is generally taken to mean the person who paid for the recording to be made’ and goes on to state that this ‘person’ is usually regarded as being the record company. Her explanation is interesting in two respects. First, that she feels a need to unpack the wording of the bill. The language isn’t opaque but it’s not straightforward either. Second, that she points towards a consensus point of view. It would appear that there has been some argument about this wording and that a general conclusion has been reached.

            The explanation does matter. The wording could indicate that the owner of sound recording copyright is the party that commissioned it. If so, the record companies’ ownership of copyright is defensible. There are many parties involved in arranging a recording project, but most record releases would not happen if the artists were not signed by a record company and if the record company had not released the funds to get the recording underway. However, if the wording is taken according to the consensus point of view – that the ‘arranger’ is the person who paid for the recording – then the record companies’ ownership of copyright is on shakier ground. As I have written in an earlier post, record companies don’t pay for recordings, artists do. The funds are given out but they are taken back again. In providing artists with ‘advances’ to finance their recordings, record companies expect two things in return. One is ownership of the sound recording copyright. The other is that artists will pay back the money via their royalty income.

And so, what should ‘arranging’ be taken to mean: is it commissioning, does that commissioning have to involve financing, or is it financing alone? In an attempt to clear this up, I shall look at the wording of copyright acts and at statements made by the major record companies.

The first UK act to include sound recording was the Copyright Act of 1911. Clause 19.1 states, ‘Copyright shall subsist in records in like manner as if such contrivances were musical works’. It nevertheless regards authorship of musical works differently to the authorship of records. In the former case the author is the songwriter; in the latter it is ‘the person who was the owner of such original plate at the time when such plate was made’. In the early years of sound recording this would have been the record company. Prior to the arrival of magnetic tape recording in the 1950s, music was recorded directly to acetate discs. These 'plates' were commonly recorded in the record companies' own studios and would have been produced and engineered by staff who were salaried employees. The musicians who made them would have been viewed as commissioned artists. This point of view is made clearer in the Copyright Act of 1956. Clause 12.4 states that ‘where a person commissions the making of a sound recording, and pays or agrees to pay for it in money or money's worth, and the recording is made in pursuance of that commission, that person, in the absence of any agreement to the contrary, shall be entitled to any copyright subsisting in the recording’.

The 1956 act opens up both aspects of the arranger’s role. It does, however, provide several hoops that record companies have to go through in order to justify their ownership of copyright. They have to have commissioned the works and paid for them and ensured that this ownership isn’t compromised in their contractual agreements with their artists. The 1988 Copyright, Designs and Patents Act has less clarity. There is no qualification of the phrase ‘the person by whom the arrangements necessary for making the recording are undertaken’. We don’t know if ‘arrangements’ refers to commissioning, to funding, or to something else entirely. The vagueness of this statement reflects the complexity of the recording world. In the years between the 1956 and 1988 Acts the methods of recording were transformed. The old system of in-house record making was largely abandoned. Instead of making recordings at record company premises using record company employees, most musicians were now issued with recording advances, which were commonly spent on independent recording studios with independent staff.

How, then, have the major record companies interpreted the 1988 Act? In 1994 the Monopolies and Mergers Commission issued a report titled The Supply of Recorded Music. As Martin Cloonan has stated, this document provides ‘the most detailed analysis yet undertaken by a government body on the ways in which parts of the music industries work’. It is also provides one of the few instances in which the majors have justified their ownership of sound recording copyright. They believe that they should own it because they have paid for the records to be made.

In making their case, the record companies refer to a debate about the 1988 Act, which took place on 30 November 1987 in the House of Lords. Here the members address the authorship issues raised by clause 9.2 of the Act. Their debate is largely concerned with filmmaking, an art form that had been lumped together with sound recording in the original version of the Act. The Lords argue whether directors should receive a share of copyright (because they are the recognized ‘authors’ of a film) alongside producers (who are already awarded copyright and are regarded as being responsible for commissioning films and arranging their financial backing). They also admit the original wording of clause 9.2 is unclear. An attempt is made to amend this clause using terms similar to the 1956 Act. Lord Kilbracken argues that the author should be defined as the party ‘who commissions that recording and pays or agrees to pay for it in money or money’s worth’. In the end, the Lords withdraw this amendment, mostly on the grounds that it is getting late and they don’t have time to debate it further.

What the major record companies take from this debate is that the owner of copyright should be the party who ‘made and paid for the arrangements’. Moreover, they place a particular emphasis on the ‘paid for’ aspects. In clause 12.108 of The Supply of Recorded Music, the majors make the following joint statement:

It was clear that, in drafting the relevant provisions of the 1988 Copyright Act dealing with the grant of copyright in sound recordings, Parliament had intended that the record company should be the holder of that right, since it was the record company which generally made the necessary arrangements for the making of the recording, including the provision of the necessary finance. There was authority as to the meaning of `the person by whom the arrangements ... are undertaken' in relation to films. The courts had held that the word `undertake' meant `be responsible for', especially in the financial sense but also generally. It could therefore be assumed that in using the same formula for sound recordings as for films in the 1988 Copyright Act, Parliament had intended that copyright should vest in the person who had undertaken the financial responsibility for making the recording. The ownership of that copyright was the reward for the risk they had undertaken. The 1988 Copyright Act was entirely consistent with the Rental Directive, which made it clear that the producer of a film or record was intended to refer to the person by virtue of whose investment a recording or film came into being.

Elsewhere in the report, this ‘investment’ is called into question. In clause 10.57 the International Managers’ Forum argue that record companies don’t actually pay for the recordings. They state, ‘Record companies almost never make a capital payment to the artist in return for the company’s acquisition of copyrights’. The organization’s own suggestion (in clause 10.54) is that ‘Ownership of copyright should either remain with the artist (subject to a limited licence to the record company) or revert to the artist on the happening of one or more of the following events: (i) recoupment of recording costs; or (ii) a given number of years after either release or recoupment; or (iii) on the artist leaving the record label; or (iv) on the record label becoming insolvent'.

            The major record companies have a (partial) answer for this, once again highlighting their financial risk. In clause 12.102, they state:

the expenditure by a record company on an artist represented an investment risk which would benefit both the artist and the record company if the risk paid off; if it did not, the record company would lose its money, whereas the artist would not only lose nothing but would also have received substantial advances on royalties which he or she would be under no obligation to repay to the record company. Investment in nine out of ten artists was not fully recouped.

The use of statistics here makes it look as though 90% of the record companies’ investment is unprofitable. What it fails to mention is that the profits from the 10% who do succeed vastly outweigh the losses from the 90% who fail. In addition, it fails to explain why artists who have recouped their advances, and who have thus paid for their recordings, should not be awarded ownership of their sound recording copyrights. In clause 12.99, however, the major labels admit that this is an industry in which the successes pay for the failures. They state that ‘It was only by concluding contracts which embodied such terms as retention of copyright, exclusivity and a reasonable length of contract term that the companies could reap the necessary long-term benefits for those few artists who succeeded’.

            Ultimately, the record companies are reliant on their high rates of failure to justify their ownership of sound recordings. As I have stated above, this is shaky ground. They are also unwise to place faith in the 30 November 1987 House of Lords debate. Although the suggested amendments weren’t made at the time, section 9.2 of the 1988 Act was later updated. Clause 9.2a of the 1988 Act originally stated that the author is ‘the person by whom the arrangements necessary for the making of the sound recording or film are undertaken’. Sound recording and film were separated out into two separate categories in The Copyright and Related Rights Regulations 1996. Consequently, clause 9.2aa of the Copyright, Designs and Patents Act now states that ‘in the case of a sound recording’ the author shall be taken to be ‘the producer’. This does not mean ‘producer’ in the usual music industry sense of the term. Instead the government’s meaning of ‘producer’ is derived from film production, and is clarified as such using the old wording of the act: it is ‘the person by whom the arrangements necessary for the making of the sound recording are undertaken’. Thus the new version of the clause is as unclear as the old one.

The amendment that is more interesting is clause 9.2ab, which was also added into the Copyrights, Designs and Patents Act in 1996. In this clause film production is addressed separately and a new authorial voice emerges alongside that of the producer. In the case of a film, the authors are now taken to be ‘the producer and the principal director’. This amendment is quite radical in terms of a commissioned work. Where ownership was once taken to reside solely in the party that made and paid for the arrangements, the act is now suggesting that artists can claim part ownership. If this idea were to spread to sound recording the record companies’ ground would shake some more. 

The Birth of the Readers

Who are the authors of a hit record? Legally, there are the two. The songwriting copyright is automatically owned by the songwriter(s); the sound recording copyright is usually owned by the record company.

            But what about Roland Barthes? He tells us that ‘a text is made of multiple writings, drawn from many cultures and entering into mutual relations of dialogue, parody, contestation’. He’s writing about writing, but his post-structuralist theory can also be applied to music. Rosemary Coombe suggests that ‘no area of human creativity relies more heavily upon appropriation and allusion, borrowing and imitation, sampling and intertextual commentary’. These ideas automatically call copyright laws into question: if writing and music draw on such a diverse array sources, how can anyone claim ownership of them?

Barthes’ interest lies elsewhere, though. His response to sampling is tell us that there is only ‘one place’ where the multiple strands of a text can be focused: this is in ‘the reader, not, as was hitherto said, the author’. There is no single meaning to any given work; there are many meanings. We shouldn’t look at the intentions of the writers; we should look at the responses of the readers instead.

            Fine. But popular music is received both individually and collectively. It is consumed in the privacy of headphones and in the commune of the gig. Its meanings are forged individually and collectively too. While listeners can have their own private associations with particular songs, audiences can adopt songs en masse and transform them or amplify their meanings. This is most apparent with YouTube phenomena such as ‘Harlem Shake’, but there is a sense in which all hit songs are taken over by their fans.

            Artists acknowledge this too. Those who are lucky enough to have had hits often talk of the fact that the songs don’t feel like their own any more. They have turned them over to their public to do with what they will. The irony here is that the more that the public starts to ‘author’ a song, the more the copyright owners profit from it.

And so, should the copyright laws be changed so that hits are fast-tracked towards the public domain? Despite Barthes’ advice, our attachment to authorship is strong. The attachment of the law is stronger still. Nevertheless, there is evidence that people feel that certain well-known songs should be theirs. A case in point is ‘Happy Birthday’, which can prompt outrage when people find out that it is still in copyright. What’s more, one area of legal policy acknowledges the public’s authorial role. When it comes to privacy laws the famous have to abide by different criteria to the rest of us. This is on the grounds that ‘if you choose to go into an arena where you get fame and maybe fortune, then your name and reputation is a matter of public interest and public property’. If we can have a share of someone’s reputation, then why not have a share of their hits?