Dance to the Video

Earlier in the month I attended Orchestral Joy Division at the Royal Albert Hall, an event that was organized by the band’s old bass player, Peter Hook, in conjunction with Tim Crooks, conductor with the Manchester Camerata. There were three guest vocalists, one of whom, Bastien Marshal, became an Ian Curtis impersonator for the night. He had Curtis’s look and idiosyncratic dancing moves spot on. Is struck me, though, that Marshal is young and has grown up in a world in which he been able to access footage of Joy Division at the same time as he been able to access their sound recordings. This was not the case for me growing up. I first heard Unknown Pleasures not long after it came out. I heard Closer when it was released. Throughout this time I had not seen the band perform, though. I was too young to see them live and I had missed their three appearances on television. Two of these took place on the Granada network, so (I think) they were restricted to the north of England only (I was in the midlands). The third was on BBC2’s Something Else. This was a programme that I did see occasionally, but I missed this particular episode. In fact, I can’t remember when I did first see the Joy Division clips. It probably wasn’t until the end of the 1980s, when the first documentaries on the band began to appear. Three things follow on from this. The first is that what has become an ‘iconic’ dancing style, simply wasn’t so at the time. Most of the people buying and listening to Joy Division records didn’t get to see Curtis’s moves. The second is that the ‘iconic’ sleeves of the records took on even more weight. The sleeve to Unknown Pleasures in many ways was Joy Division. There were also key photographic images, but in contrast to Curtis’s manic dancing, these were stills. Conversely, the third thing is that is that if you did manage to see television clips in the pre-MTV and YouTube age, they did tend to stay with you. You had to register them whole. Johnny Marr suggests in his autobiography Set the Boy Free that Curtis cribbed his dance moves from David Bowie, via a one-off television appearance on the Dinah Shore Show in 1975. The evidence does appear to be telling. The question, though, is how did Curtis get to see this American programme?

           

Another thing that struck me about Orchestral Joy Division, and which also struck me when I saw Peter Hook and the Light at the Round House in 2017, is what a towering song ‘Ceremony’ is. If anything, it is even more powerful musically (but not culturally) than ‘Love Will Tear Us Apart’. It’s an unusual late twentieth century song, however, as it doesn’t have a definitive recording. The surviving members of Joy Division issued it as New Order’s debut single. This almost felt like a cover of Ian Curtis’s intended version. Then, when the studio recording by Joy Division was released on the Heart and Soul box set in 1997, this didn’t seem like it was the ultimate version either. Maybe, it is this situation makes the song so redolent live. It can only be completed by Joy Division fans.

Fear of Musicking

There is a bias amongst some popular music academics. They are for musicians and they are against songwriters. This is not borne out of a need to venerate the incredible playing ability of certain artists, quite the opposite in fact. The desire is to move away from the idea of ‘artists’. Musicians can be viewed as workers. Theirs is a job of honest graft. In contrast, it is songwriters who carry with them the bourgeois notion of the creative genius, operating at a remove from society. This viewpoint is made clear in a recent call for papers for a ‘Working in Music’ conference:

As with any artistic production, music is also - and perhaps mainly - work. Such an idea is opposed to the romantic mythology from the 19th Century which conceives of artistic activity as coming from transcendental inspiration, impossible to rationalize, and of the artist as an exceptional being whose ‘talent’ would be irreducible to sociological analysis.

What we should value is the work (the physical effort that is expended in making music) and not ‘the work’ (the musical product that is credited to an author). Christopher Small, with his neologism ‘musicking’ is key to this notion. He believes that we should think of music as a process - and thus a verb - rather than as an object - get rid of that noun!

To music is to take part, in any capacity, in a musical performance, whether by performing, by listening, by rehearsing or practicing, by providing material for performance (what is called composing), or by dancing. We might at times even extend its meaning to what the person is doing who takes the tickets at the door or the hefty men who shift the piano and the drums or the roadies who set up the instruments and carry out the sound checks or the cleaners who clean up after everyone else has gone. They, too, are all contributing to the nature of the event that is a musical performance.

I’m in agreement with much of this. Music is social; we should take genius down a peg or two; songwriting should not be placed above performance in the musical hierarchy. This outlook generates some questionable claims, however.

            First, there is the idea that the practice of musicians is out of step with the legal and commercial perceptions of music. Simon Frith has recently argued that ‘The law treats music as a work, a commodity, intellectual property, something that can be owned and exploited’, whereas ‘Musicians think of music as a process’. But do they always think in this manner? The recording industry may have declined in recent years, but the goal for many musicians is still to make a recording. They also want to have credit for it. These musicians do think of music as a noun. Frith once described the process of popular music as resulting in an object:

The ‘industrialization of music’ can’t be understood as something that happens to music but describes a process in which music itself is made – a process, that is, which fuses (and confuses) capital, technical, and musical arguments. Twentieth Century popular music means the twentieth century popular record; not the record of something (a song? a singer? a performance?) which exists independently of the music industry, but a form of communication which determines what songs, singers, and performances are and can be.

I would argue that this still remains the case, regardless of the academic vogue for musicking.

            Second, there is the desire to conflate music-making processes. It is argued that the division of labour into composition and performance is a classical music conceit. Popular music, in contrast, witnesses a confusion of these roles. Musicians compose as they are playing; songs are produced communally. Frith stresses this point in his recent article, stating that ‘The law assumes music is authored, created by named individuals’, whereas ‘Musicians know that music making is an essentially collaborative, a social process [sic]’.

            Music making is certainly collaborative and the divisions between composition and performance can be blurred. This does not mean, however, that they are the same thing. Few popular music songs are notated, but most of them are written. This is most obviously true of the lyrics. The words are honed and they are crafted, and it is usually an individual who does this. It is also true of the music: chords and melodies are usually developed by individuals or by small teams of writers; they seldom emerge whole during the rehearsal process.

            There is, of course, the question of whether the chords and melody should be valued above other elements of music, such as rhythm and the timbre. Frith believes not. He argues that ‘The law describes music in terms of notes and tunes’, whereas ‘Musicians think of music in terms of sounds and textures’. Again, though, do all musicians think in this way? There are a lot of performers who still believe in songs, and there are many who believe (perhaps conservatively) that lyrics, melody and harmony should be given greatest compositional accord.

            The idea that performance and composition take place simultaneously is in some ways outdated. It harks back to the idea of the rock group: a band of musicians who work up their material in rehearsal or in the recording studio. This is not modern practice. Most contemporary hit records are made by solo artists or by collaborations between solo artists. These musicians usually have a hand in writing their songs, but they do not write them on their own. We live in an era of professional songwriters. Their job is to work on the notes and tunes. It is somebody else’s job to work on the performance.

            There is, however, one modern example where the lines between performance, composition and recording are truly blurred. This is the lone, electronic artist who writes, edits and records their material on a digital audio workstation. Ironically, this type of music making is the least social or collaborative of all.

            Finally, we come to attempts to solve the legal dilemma. If the law is an ass when it comes to performers, how do we make it into something better? One proposal that has been put forward is to regard performance as composition. Richard Arnold has argued for this. He believes that ‘in the field of popular music many works are created in performance rather than being written down first’. Lionel Bently’s solution is to forgo the conventional compositional copyright for popular music and instead have a copyright in the ‘original work of sound’:

The effect of this would be to save copyright law from being asked to invent ‘musical works’ (and, indeed, ‘performances’) in circumstances (as in much of rock and pop – but not all) where the musical artefact is created in the recording studio (and subsequently marketed, appreciated and consumed) by way of such recording.

This idea is problematic in two respects. First of all, it ignores the fact that many songs are not written by the recording artists. As noted above, it is rare today for hit songs to be worked up in a studio like this. Bently’s idea is also unworkable in respect of cover versions: artists whose songs have been covered are not likely to welcome the covering artists as co-composers. The second problem with this proposal is that it posits composition as the desired musical goal. Copyright will give due respect to performers, but only if they cast themselves as writers. Isn’t this where we came in?

Blurred Lines: What's Goin' On?

In March 2015 a jury in the US found against Pharrell Williams and Robin Thicke in the ‘Blurred Lines’ case, deciding that their composition had infringed the copyright of Marvin Gaye’s ‘Got to Give it Up’. To many, this decision feels wrong. Songwriters, in particular, have been outraged by the outcome, arguing that it sets a dangerous precedent for their profession. Trying to work out why it is wrong is a complicated and convoluted matter, however. Let me attempt to count the ways:

1.     Copyright legislation is based on the notion of originality

US copyright law states that ‘Copyright protection subsists . . . in original works of authorship’. British legislation states similarly that copyright is owned by ‘the person who creates’ the ‘original’ work. In both instances copyright is betraying its debts to Romanticism and the notion of individual genius. It is this aspect of creativity that the Gaye family sought to emphasise when celebrating their victory. They argued that true artists, such as Marvin Gaye, work ‘creatively from a blank slate in the crafting of their song to ensure originality and the integrity of their creation’. They claimed their action was ‘protecting the legacy of original artistry’ and that it was ‘encouraging future artists to also aim for new ground’. They were against magpie artists such as Williams and Thicke, whose only aim was to ‘write a song with the same groove’ as ‘Got to Give It Up’ and who failed to give ‘credit where credit is due’.

2.     Popular music is not original

Songwriters have been outraged by the decision in the ‘Blurred Lines’ case because it fails to understand that most new music steals from old music. There is nothing that is wholly original. Following the verdict, Williams stated, ‘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’. More recently, over 200 songwriters, including Danger Mouse, Earth, Wind & Fire, Linkin Park, the Black Crowes, Jennifer Hudson and R. Kelly, have grouped together in support of the appeal that Williams and Thicke are making against the verdict. In their amicus brief they have stated ‘All music shares inspiration from prior musical works, especially within a particular musical genre. By eliminating any meaningful standard for drawing the line between permissible inspiration and unlawful copying, the judgment is certain to stifle creativity and impede the creative process’.

3.     Popular music turns a blind eye to some aspects of borrowing, but is vigilant about others

Traditionally, songwriters have felt free to be ‘inspired’ by other artists’ rhythm tracks and by the timbre of recordings, but have been wary of lifting anything melodic or harmonic from another songwriters’ work. The ‘Blurred Lines’ case stands this on its head. It went against Thicke and Williams because they incorporated the groove and feel of ‘Got to Give It Up’ into their work. This is the issue that has upset composers. Jim Irvin, a writer for Lana Del Ray and David Guetta, has stated ‘Yes, there’s a sonic resemblance, but Pharrell and Thicke are paying homage to an atmosphere, using some of the colours of the arrangement, not copying the substance of the chords, melody or lyric’. Meanwhile, the amicus brief points out that ‘Got to Give It Up’ and ‘Blurred Lines’ ‘do not have similar melodies; the two songs do not even share a single melodic phrase’. It condemns the wrongheaded jury who decided in the Gaye’s estates favour just because the two songs have a similar ‘feel’ or ‘groove’.

4.     These biases of songwriting credits are elitist and racist

Previously, when disputes about songwriting credits made it to court, the majority of cases have found in favour of the composers of the main melodic and harmonic parts. Popular music scholars have objected to this practice on two grounds. First, it favours the elements of music that can be captured in a written score. It thus has a high art bias and ignores the fact that much popular music is centred on nuances of rhythm and texture - elements that come to the fore through the recording process. Second, it is racist. Simon Frith has stated, ‘Copyright law defines music in terms of nineteenth-century Western conventions and is not well suited to the protection of Afro-American musicians’ improvisation art or rhythmic skills’. Matt Stahl has claimed similarly that ‘US copyright’s focus on words and melody privileges certain forms and makers of music and disadvantages others along racialized lines’.

5.     Williams welcomed the high art and racial bias of case law

One quirk of the ‘Blurred Lines’ case was that it was supposed to be determined on the basis of the sheet music rather than the recording. This is because ‘Got to Give It Up’ was released in 1977. As such, the sound recording was copyrighted after the drafting of the US Copyright Act of 1976, but fell under previous legislation because the Act had not yet been implemented. Earlier US legislation did not recognise a copyright for sound recordings. It stipulated that any copyright infringement lawsuit had to be determined on the basis of the written composition, as deposited in the US Copyright Office. Williams sought to take advantage of this situation, arguing that the sheet music of ‘Blurred Lines’ is completely different to that for ‘Got to Give it Up’. He demanded: ‘Anybody that plays music and reads music, just simply go to the piano and play the two. One's minor and one's major. And not even in the same key’.

6.     It is possible to give songwriting credits for feel and groove

Although case law has its biases about compositional credits, copyright legislation offers no specific guidance. Any aspect of the music can be credited, including the work of the rhythm section and the skills of the producer. In addition, these songwriting shares can be of any size, ranging from less than 1% to the whole of the work. There is a history of conventions, however. The original division set out by most collection societies was to divide the songwriting royalties 50/50 between the authors of the lyrics and the composers of the written score. This norm was established in era when sheet music sales were dominant and there were few writer-artists. New practices emerged in response to the rise of self-contained, self-composing groups, as well as to the ascendancy of sound recordings in the market. A convention developed amongst bands to divide songwriting royalties equally between each member (the Yardbirds and the Doors were pioneers here). In more recent years, a hybrid style has appeared, whereby all band members are credited but the composers of the lyrics, melody and harmony will gain higher copyright shares than the rhythm players. A further model has grown in response to the growth of digital recording. In genres such as EDM and contemporary R&B it is common for a producer-composer to create a backing track, which will then be sent to ‘topliners’ who will add melodies, harmonies and lyrics. Here it is common to divide the royalties 50/50 between the producers and the topliners. As such, half of the songwriting credits are being awarded for feel and groove. Finally, there is a long tradition of falsifying credits. It is possible to award shares to participants that exceed their compositional contributions. It is also possible to award shares to non-composers. This practice goes back at least as far as the inter-war period, when performers such as Al Jolson would be given a songwriting cut as a means of encouragement to perform a tune.

7.     The songwriting credits for ‘Got to Give It Up’ and ‘Blurred Lines’ were determined by different conventions

Gaye is listed as the sole composer of ‘Got to Give It Up’. On the recording itself he performs lead vocals and some of the backing vocals. He also plays keyboards, synthesizer bass and percussion. Gaye is not the sole performer on the track, however. There are two guitar players, a saxophonist, a tambourine player and a drummer. Although Gaye is credited with putting together the ‘vocal, rhythm and synthesizer arrangement’, these are not the aspects of the composition that earn him his sole composer credit. In fact, the arrangement of a work cannot be copyrighted under US law. Gaye instead received 100% of the compositional rewards because he wrote all of the lyrics as well as the main melodic and harmonic parts. His family emphasised this point in the court case, which they claimed was ‘was based entirely on the similarity of the basic musical compositions, not on “style” or “feel” or “era” or “genre”’ (thus contradicting their other comment that Williams and Thicke lost the case because they wrote a song ‘with the same groove’ as ‘Got to Give it Up’). Moreover, it has been acknowledged that the feel of ‘Got to Give It Up’ is not original. Gaye was attempting to recapture the atmosphere of Johnnie Taylor’s hit, ‘Disco Lady’. He did not give Taylor any songwriting credit for this inspiration and neither did he credit Taylor’s rhythm section. ‘Blurred Lines’, in contrast, does give some acknowledgement to the creator of the song’s groove and feel. It also includes some false accounting. Thicke confessed that he was ‘high on vicodin and alcohol’ during the songwriting sessions. He has stated, ‘the reality is, Pharrell had the beat and he wrote almost every single part of the song’. This includes the words, which Williams has admitted are wholly his own. Despite his paltry contribution, Thicke was given 22% of the songwriting royalties for the song. Meanwhile, T.I. was given 13% for his rap, and Williams claimed the remaining 65%. Williams has stated that he gave Thicke his share because ‘This is what happens every day in our industry ... people are made to look like they have much more authorship in the situation than they actually do’.

8.     Gaye was rewarded in ‘Blurred Lines’ case on the basis of elements of ‘Got to Give It Up’ he did not claim to compose

Although the ‘Blurred Lines’ case was supposed to be decided on the sheet music alone, it appears that the sound recording of ‘Got to Give It Up’ did influence the jury’s decision. The judge permitted a stripped-down version of the recording to be played in court. In their appeal against the verdict, Williams and Thicke have stated that ‘the court erroneously allowed the Gayes’ experts to testify about the sound recording anyway, including by playing their own musical excerpts based on the sound recording’. There is little lyrical, melodic or harmonic similarity between ‘Blurred Lines’ and ‘Got to Give It Up’. The main correspondence lies instead with the rhythmic feel and the disco style. ‘Blurred Lines’ sounds like ‘Got to Give it Up’; it does not sing like it. As we have seen, songwriting credits can be given to the rhythm players who have developed a groove, and they can go to producers of a recording. This is not what Gaye did with ‘Got to Give It Up’, however. His compositional credit was based on the aspects of music that can be captured in a written score. Nevertheless, Gaye’s estate has been awarded $7.4m in damages for copyright infringement due to the fact that the recordings of ‘Blurred Lines’ and ‘Got to Give It Up’ have sonic similarities.

9.     Songwriting copyright is rigid

Although the ‘Blurred Lines’ decision is legally unjust, it is not the technicalities of the case that have caused outrage amongst songwriters. Many of them believe that an original recording, rather than sheet music, constitutes the essence of a work. In addition, many of them do credit rhythm and feel in their songwriting splits. Rather, what is problematic is that this decision flies in the face of their everyday practice. Moreover, their everyday practice is not accounted for within the law. Songwriting copyright has proven to be flexible in one way. The conventions of registration have changed over time to accommodate new technologies, changed working methods and differing forms of agreement between contributors. And yet songwriting copyright can also be rigid: there is usually only one way that a work can be registered. This is problematic, as a song can be utilised by different people in different forms. For songwriters there is the sheet music and the original recording. For song borrowers there are cover versions and samples. For song stealers there is plagiarism. In each of those instances, different aspects of the composition can come to the fore. The original recording is usually uppermost in most songwriters’ minds when it comes to sorting out the splits. As such, works registrations will regularly credit aspects of songs that are only present in their first recordings, including their feel and their groove. When we turn to the other forms that a song can take, the stress given to these aspects of the recording can rise and fall. Covers usually remain faithful to the original lyrics of a song and they often stick closely to the principal melody and chords. Their employment of rhythm and feel can vary widely from the original recording, however. And yet, there is no provision within copyright law that accounts for this fact. Sampling is the opposite of cover versions in one respect: it usually concentrates on the rhythm or texture of a recording, rather than its melody or harmony. It also has different injustices. Many sampled recordings are old; consequently the drummers and the producers are rarely credited in the original songwriting splits. Sampling is similar to cover versions in one way, however: the splits cannot be revisited in light of these emphases. If ‘Blurred Lines’ had sampled ‘Got to Give It Up’ directly there would have been general acceptance that the authorship of the latter tune should be credited. Any sense of injustice would instead have been focused on the fact that Gaye would be the only contributor to the sampled work to receive a royalty. ‘Got to Give It Up’ was not sampled, however. The ‘Blurred Lines’ case instead rested on whether or not Williams and Thicke had plagiarised Gaye’s song. Although plagiarism can come close to sampling – particularly with soundalike recordings and ‘interpolations’ of works - songwriters think about it in a different manner. As the amicus brief indicates, many of them are upset by the ‘Blurred Lines’ decision because it has suggested that it possible to plagiarise a song’s feel or groove. A group such as the Doors might register a work to all members of the band, and a songwriter-producer such as Williams might incorporate rhythm and production into his attribution of shares, but neither will expect to ‘own’ the rhythmic elements or the production style. It is accepted practice that they can be mimicked and copied. In contrast, songwriters are more vigilant when a melody line is copied or lyrics are stolen. There are a number of reasons for this. One is that there is still a hierarchy of musical elements, which places melody, harmony and lyrics as the most important. There is a corresponding hierarchy within groups: it is rare that the bass player or drummer will be the leader of the band. Another reason why plagiarism cases are not made in this respect is because many bass and drum parts are not original. The same patterns and methods are used in multiple songs. This has been made possible because songwriters do not commonly launch plagiarism cases when these elements are simulated. This is only convention, however, and it is not possible to provide a separate registration of a work that will outline which elements of a composition songwriters will pursue in a plagiarism case and which they will chose to ignore. The ‘Blurred Lines’ case goes against songwriters’ practice. It has caused alarm because the Gaye estate won.

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. 

Cover Me Badd

There is a new trend within academic writing about copyright: people are talking to music makers. I have previously discussed the work of Justin Morey and Phillip McIntyre, who have interviewed sampling artists to gauge their feelings about sample clearance and songwriting splits. Amanda Sewell echoes their work in her investigations into hip-hop sampling. Talking to the artists, she has found a range of approaches to increased licensing fees. In contrast to scholars who moan about a decline in hip-hop’s quality as sampling laws have tightened, she believes that ‘artists have responded to various challenges’. They have found affordances within copyright laws to create new strains of the music.

            In addition to this research, there is the work of John Street and Tom Phillips, who set out to discover ‘What Do Musicians Talk About When They Talk About Copyright?’ What they found was that few of their interviewed musicians had ‘any very detailed knowledge of copyright’. At the same time, these musicians were not opposed to copyright per se.

            In fact, there was an occasion when they wanted copyright law to offer greater constraints than it actually contains. This was in relation to cover versions. One of the musicians - who is a signed artist - described her band’s attitude when covering a song by a well-known US act. She believed that her cover was done for ‘aesthetic’ rather than commercial reasons and that it was therefore acceptable to the US group. Her band also sought permission from the other act to release their cover version. In return, the artist expected that any act considering covering one of her songs would seek her agreement first. She states, ‘If approval hadn’t been given I would be really, really mad about it to be honest’. So much so that she would ‘hit the roof’.

            She might have to do some roof hitting. Copyright law has safeguarded the right to do cover versions. In this respect, the law differentiates songwriting from other artistic practices: the music composer has less control over the future uses of their work. Prince has remarked on the oddity of this, stating: ‘There’s no other artform where you can do that. You can't go and do your own version of Harry Potter. Do you want to hear somebody else sing “Kiss”?’

In Britain, the only constraint on recorded cover versions is the First Licence Refusal (FLR). Songwriters can specify who they first want to record a specific song, but once that version has been released that song is free game. This notion was first enshrined in the 1911 Copyright Act. Clause 19(2) states that ‘It shall not be deemed to be an infringement of copyright in any musical work for any person to make … records … if such person proves that such contrivances have previously been made by, or with the consent or acquiescence of, the owner of the copyright in the work’, i.e. if a recording of a song had already been made available, then other performers were permitted to record their own version of the song. The Act also outlined how songwriters would be rewarded for the cover versions of their work: they would receive a royalty of 5% of the retail price of each record sold. According to Terri Anderson:

The reason why this Act … embodied a Statutory Licence (a compulsory licence after the first recording of any copyright music) was that the British Government shared the US Government’s fear that the then all-powerful music publishers would want to strangle the infant record industry at birth, and the best way to do this would have been to deprive it of any worthwhile copyright music to record.

Accordingly, the US Copyright of 1909 had also safeguarded cover versions. Clause 1(e)a states:

That whenever the owner of a musical copyright has used or permitted or knowingly acquiesced in the use of the copyrighted work upon the arts of instruments serving to reproduce mechanically the musical work, any other person may make similar use of the copyrighted work upon the payment to the copyright proprietor of a royalty of two cents on each such part manufactured.

Marybeth Peters has suggested that, rather than acting to restrain the publishing industry, Congress was instead ‘concerned that the right to make mechanical reproductions of musical works might become a monopoly controlled by a single [record] company’. Consequently, the Act made the recorded repertoire of songs available to all record companies.

            In the US the royalty rate remained at 2 cents per record until the Copyright Act of 1976, and even then it was only raised to 2.75 cents. This Act also introduced conditions for artists who wanted to make cover versions, including the notion that ‘the arrangement shall not change the basic melody or fundamental character of the work’. The administration of this licensing scheme has remained in the hands of the US government. Licensees are expected to apply to the Copyright Office for permission to record their cover versions. That said, according to Donald S. Passman, ‘the compulsory license is almost never used’. It is too burdensome, and so publishers offer direct licences instead.

            The UK has moved in a different direction. Here, the compulsory licence was retained in the 1956 Copyright Act, which raised the rate to 6¼% of the retail price of each record sold. By the time of the 1988 Copyright, Designs and Patents Act, however, the compulsory licence had been removed. Rather than being enshrined in copyright law it was instead perpetuated in the Membership Agreement of the ‘mechanical’ collection society, MCPS. In contrast to the US Copyright Act, the MCPS sets no specific guidelines regarding the nature of cover versions. In the UK, as long as a prior version exists, and the new work is not derogatory, artists are free to make any arrangement in any way they wish.

            If this causes the musician quoted by Street and Phillips to bang her head, she should brace herself, as the rules surrounding cover versions are only growing looser. For many years MCPS included an FLR box on their songwriting registration forms. Songwriters would have to tick this box if they wanted a specific artist to make the first recording of their work. MCPS found that this process held up the licensing process and have consequently devised a new system. Songwriters now have to inform them of an infringing cover version after they have discovered that one is due to be released. Only then will MCPS block the offending article.

            The compulsory licence is the reason why cover versions can rain down on us. Everyone has a cover version that they object to (Prince might not want to hear Tom Jones’s ‘Kiss’; I don’t want to hear Travis doing ‘Baby One More Time’), but it’s a small price to pay for musical freedom of speech. 

From Cover to Cover

When the Beatles destroyed rock ‘n’ roll in the early 1960s, one of the main victims was the cover version. Artists who didn’t write their own material were castigated. Worse still, white artists who covered material by black artists and had better success in the charts than them, were deemed to be racial oppressors. Pat Boone is usually regarded as the main villain of the piece. Simon Frith has stated that his cover of Little Richard’s ‘Tutti Frutti’ is ‘probably the nearest thing to a consensual bad record in popular music history, a track that is both exploitative and feeble’.

            But cover versions are making a comeback. As stated in my previous post, they are one of elements of the current pop world that hark back to the pre-Beatles era. Some of these new cover versions can be labelled feeble and exploitative. Talent show winners are causing outrage by recording cherished pop songs (‘Hallelujah’, ‘When We Collide’); white artists are causing upset by performing black artists’ material (Fall Out Boy’s version of ‘Beat It’); and opportunists are trying to cash in by hoping we will mistakenly download or stream their ‘tribute’ versions of hits (the multitude of cover tracks that populate iTunes and Spotify).

            Cover versions are also performing a completely different feat: they are becoming the last refuge of the pop snob. In my previous post I wrote of the way that party DJs are becoming more altruistic; they are playing the hit songs that partygoers know. Some have found a way to do this and still eat their elitist cake, however. Rather than playing the original version of the song that everyone has heard before, they opt for obscure, cultish cover versions. At one and the same time they can show off their knowledge of pop’s long tail as well as its short head.

            This is productive consumption in action. In refusing to endorse the hegemonic version of a hit song, these party DJs are indulging in guerrilla tactics. They are ‘poaching’ popular culture in a way that theorists such as John Fiske and Michel De Certeau would admire. Fiske has argued that resistance to the cultural industries is ‘characterized by the creativity of the weak in using the resources provided by a disempowering system while refusing finally to submit that power’. For him, it is not art works that constitute popular culture, but instead what the people do with them. The truly ‘popular’ cultural moments occur when the people react against the ‘forces of domination’.

            By this measure, the most radical (and camp!) act that could now be performed within the world of cover versions would be to re-appropriate Pat Boone and stand him against the cultural power bloc that has made Little Richard dominant. This isn’t happening, however. The party DJs who are playing cover versions might well be snobs, but they also believe in an aesthetics of the popular. They want to put forward the best popular culture and for them it is to be found within the works created by the cultural industries. They maintain a faith in this art that critics such as Fiske, for all his supposed populism, would deny. 

The Eve of the War (1913, 1963, 201?)

2014 is an unusual new year. It is dominated not by looking forwards but by looking back. Our retrospective culture is relishing its biggest opportunity yet. 2014 marks the first year of the centenary anniversaries of the First World War: we are set to have four years of analysis, mourning, re-enactments, school trips and political positioning. In Britain, the Tory education secretary Michal Gove has been quick off the mark, saying that it is time to overturn left-wing criticisms of the War. He accuses leftist historians and artists of misinterpreting it as ‘a series of catastrophic mistakes perpetrated by an out-of-touch elite’. Gove wants us to instead praise ‘patriotic leaders’ who were fighting a ‘just war’. He has also claimed that ‘the past has never had a better future’.

            I hope that amongst all the retrospection, re-evaluation and squabbling, there is time to look at the eve of the war. What is often most interesting about great conflicts is the world that they leave behind. Britain didn’t just lose a generation of men in the First World War, it said goodbye to a whole way of life. Some of the best art about war has depicted societies that are on the verge of eclipse: Cabaret, Oh! What a Lovely War, An Inspector Calls, even the first series of Downton Abbey.

            2014 is the anniversary of another cataclysmic event. It marks 50 years since the first British pop invasion of America. On 1 February 1964, ‘I Want to Hold Your Hand’ by the Beatles reached number one in the Billboard Hot 100. On 9 February, the Beatles made their first appearance on the Ed Sullivan Show, attracting an estimated 73 million viewers. Although by no means as tragic as the First World War, Beatlemania wrought havoc upon a previous way of being. In his appropriately titled book, How the Beatles Destroyed Rock ‘n’ Roll, Elijah Ward outlines the effects of the group’s success. They ‘transformed teenage dance music into a mature art form’; they recast black music ‘as the roots of rock’n’roll rather than as part of its evolving present’; they promoted the recording studio at the expense of live music; they introduced the idea of the self-contained group; they introduced the idea that artists should write their own songs.

            I’m sure that this year will see commemorative analyses of the British invasion. As with the First World War, however, I hope some attention is paid to the world that existed before this cataclysm. I love the pre-Beatles musical era: rock ‘n’ roll, the Brill Building, American Bandstand, Alan Freed. If we look closely at it, though, something curious materializes. The modern pop landscape looks a lot like the world the Beatles were supposed to have destroyed. We have manufactured teen idols and girl groups. Black music of all kinds is dominant. Hit songs are just as likely to be written by teams of songwriters as they are by the recording artists. Cover versions are rife. Live music is apparently generating more money than recordings. Dance crazes are breaking out all over again - last new year I was dancing Gangnam Style, this new year I was doing the Twist.

            And maybe the state of pop music should make us think again about the eve of the First World War. The British Prime Minister at the time was Herbert Asquith. Like the current Prime Minister, David Cameron, he was educated at an independent school and Oxford University. The early Edwardian era in Britain was the last period without the semblance of a welfare state (the Liberal government introduced pensions in 1908, National Insurance in 1911, and Health Insurance in 1911). The future has never had a more appropriate past.