Prick Up Our Ears

‘We never hear anything where no men were involved’. This is the opinion of Claire Boucher, better known as Grimes. She’s right, too. There are plenty of all-girl groups, and many of these groups have made conscious attempts to produce female and feminist music. Wholesale girl power is restricted, however. There is always a man lurking at some point in the process. By way of illustration, Grimes points out that Emily Lazar is the only female mastering engineer working today, while there are no female mixers at all. As a consequence, she feels that Art Angels, her new, self-made album, provides something novel. It is a truly female recording. Grimes says, ‘The whole record was produced, engineered, written, performed by a woman, which is pretty rare. I don’t know if I ever heard a record like that, fully, with vocals on and stuff.’

Art Angels is a valiant enterprise. There is nevertheless still a male presence in this woman’s music. We need only follow Grimes’ logic further down the line. Most instruments have been designed and built by men, as have most professional recording studios and most software programmes. It is men, primarily, who have been responsible for the development and manufacture of recording formats.

This matters aesthetically as well as politically. Record listening is a complex process. This can be witnessed in the interviews that Justin Morey and Phillip McIntyre conducted with artists who used samples. They wanted to know what attracted them to particular recorded sounds. I have quoted some of the responses before:

“Sometimes we might sample a drum loop that’s amazing, you know it’s got a fantastic sound. For us it’s the atmosphere that it gives [to] something . . . so [we look] more for the sound and the feel that a sample would give you rather than the playing.”

“So we sort of chanced upon all this stuff that we weren’t really aware of because it wasn’t part of our generation really … We really liked the kind of woody warmth to that stuff, which was all obviously produced in lovely studios, and the sound you were getting off the vinyl . . . And hearing that in the context of the cleanliness of the analogue synths and drum machines and stuff like that, we just enjoyed that whole kind of warmth really, and just the way it added this kind of organic dirt.”

“The sonics, the groove … it is essential the sonics.”

“the circumstances that they recorded in were atmospherically different than the way modern records are recorded, and that’s part of the whole thing”

“A lot of the time, it is the sound”

When we listen to records there are many things that prick up our ears. The songwriting and musicianship are clearly important, but so is the sound of the instruments, the sound of the room, the sound of the recording format itself. There is something great about this. A record is not just made by a community of musicians; it is made by a series of communities, including the production team, the mixers, the manufacturers and the mediators. Popular music truly is popular: it is of the people. Grimes is right, however, to make us pause for thought. Sometimes it is good to narrow the focus; we need to have records that reflect particular constituencies. This remains easier for some communities than others, however. There probably are records that are male through and through, from the songwriter’s initial idea to the finalisation of the recording format. We are still waiting for a record where only women are involved.

Yell! Timbre

I’d like to see a system whereby artists have a chance to own their sound recording copyrights. I also welcome the idea that more musicians are being included in songwriting shares. Morey and McIntyre’s investigations into sampling practices highlight the fact that what is valued most in ‘songs’ is not always lyrics, melody or harmony. And yet there’s something within their work that makes me pause for thought.

There is a danger in using this research to underpin a claim for musicians’ compositional rights. In their interviews with artists who use samples, Morey and McIntyre try to locate just what it is that attracts these artists towards particular recorded works. They summarise, ‘The overall sound, texture or rhythmic feel of a sample were repeatedly identified by our interviewees as the main characteristics that lead them to use [samples]’, adding that the respondents placed an ‘emphasis on timbre over melody’. A focus on timbre, it has often been claimed, is one of the factors that distinguishes popular music from classical and folk forms. This timbral focus has also raised doubts about the usefulness of existing copyright laws for popular music, as copyright law is centred on more traditional musical concepts, such as melody and harmony. Nevertheless, we need to examine just what it is that produces timbre. The interviewees mention several different things:

“Sometimes we might sample a drum loop that’s amazing, you know it’s got a fantastic sound. For us it’s the atmosphere that it gives [to] something . . . so [we look] more for the sound and the feel that a sample would give you rather than the playing.”

“So we sort of chanced upon all this stuff that we weren’t really aware of because it wasn’t part of our generation really … We really liked the kind of woody warmth to that stuff, which was all obviously produced in lovely studios, and the sound you were getting off the vinyl . . . And hearing that in the context of the cleanliness of the analogue synths and drum machines and stuff like that, we just enjoyed that whole kind of warmth really, and just the way it added this kind of organic dirt.”

“You know certain things prick up my ears. The sonics, the groove … it is essential the sonics.”

“the circumstances that they recorded in were atmospherically different than the way modern records are recorded, and that’s part of the whole thing”

“A lot of the time, it is the sound”

There’s plenty going on here. These sounds and these sonics have many authors. There are the lyricists and composers (let’s not forget them); there are also the musicians, the producers, the architects and builders of recording studios, the manufacturers of polyvinyl chloride and the people who purchased and used the records. Should they each receive a compositional credit?

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. 

Copyright Constraints and Royalty Affordances

I’ve recently had some correspondence with Justin Morey from Leeds Metropolitan University, whose research interests are copyright and digital sampling. Morey's work has a different bent to many copyright theorists, who can tend to be alarmist in the face of copyright extension. Siva Vaidhyanathan, for example, thinks that copyright law now only benefits big business. It is stifling the opportunities for creators and consumers. She claims that copyright law has ‘lost its mission . . . to encourage creativity, science, and democracy’, and suggests that ‘it rewards works already created and limits works yet to be created’. What Vaidhyanathan yearns for is a return to a time when copyright legislation was ‘thin’ and ‘leaky’. For her a ‘leaky copyright system’ encourages creativity and ‘allows users to enjoy the benefits of cultural proliferation at relatively low cost’.

            Morey doesn’t argue against writers like Vaidhyanathan, but he doesn’t think there is a copyright dystopia either. Instead, he provides glimpses that, when it comes to music, the copyright system does remain ‘leaky’, just as Vaidhyanathan desires. What’s most interesting is the means by which he arrives at this point: he talks to music creators. He is particularly focused on dance musicians who use samples. The results of his interviews with them are illuminating. Despite the fact that the laws relating to sample use have been tightened up and the cost of clearing samples has become more expensive, ‘None of the producers interviewed … advocated an end to the clearance process for substantial samples’.

            His interviewees, in fact, find opportunities within the copyright system, both when they are using copyrighted material and when they are creating it. Key to Morey’s view about the creative process is the idea of affordances and constraints. He states that ‘part of the enjoyment of the creative process … is in having to work with the inherent restrictions’. For his interviewed artists, some of these restrictions are technological, such as working with samples in which frequencies cannot be removed or working with machines whose editing capacities are not great. They are also financial and legal. Morey argues that:

Increasing costs of sample clearance and the financial demands of publishers to reach agreement for publishing clearance have introduced constraints to the amount of samples these producers are able to use and still derive economic benefit from their work. However, this in turn has become an affordance, as it has led some of them either to apply the techniques of sampling to their own recordings, or to take less significant or recognizable sections when they do sample in order to minimise the costs.

One of the artists states that:

it’s those restrictions which I think really test and encourage your creativity… So yeah, you tend to take less obvious bits of records and obviously you hunt for more obscure records, or you chop something within an inch of its life so even you’ve forgotten what you sampled…The new cautious approach in itself becomes a limitation, but not necessarily a bad one. I probably choose less musical elements to sample [now] and probably add more of my own musical input on top of it.

And if these artists are finding new ways of avoiding copyright payments, they are also finding new ways of getting paid. In an article that he has co-written with Phillip McIntyre, Morey outlines the judicial view of songwriting authorship: 'it can be argued that legal interpretation of song ownership in the case of disputes has tended towards the conclusion that the song equals the vocal melody, underlying chords and lyrics, i.e. Those elements that would have appeared in music publishing's initial main source of income, printed sheet music'. Morey and McIntyre then quote a number of academics, who suggest that songwriting credits should be expanded to include a wider ranger of contributors. Albin Zac, for example, argues that a pop recording contains:

three distinct compositional layers; the song, the musical arrangement, and the track. The song is what can be represented on a lead sheet; it usually includes words, melody, chord changes, and some degree of formal design. The arrangement is a particular musical setting of the song. It provides a more detailed prescriptive plan: instrumentation, musical parts, rhythmic groove, and so forth. The track is the recording itself. As the layer that represents the finished musical work, it subsumes the other two. That is, when we hear a record, we experience both song and arrangement through the sounds of the track.

Jon Fitzgerald, meanwhile, points out that: 'various authors have stressed the importance of considering the sound recording as musical text ... Hennion goes so far as to say that "the song is nothing before the arrangement" - arguing that creation "occurs at the moment of orchestration, recording, and sound mixing"'. For Morey and McIntyre it is sampling that reveals just how complex the authorship of a sound recording can be, and it is sampling injustices that illustrate how things could be changed. Credits shouldn’t be restricted to the writers who came up with most of the song, as it is often a particular segment – the solo, the break - that sampling composers are keen to access. And credits shouldn’t be restricted to the writers who originated the song, as it is often the musical arrangement or texture of a recording that sampling composers desire. Moreover, it is not always the lyrical, melodic, or harmonic elements that they are after: many sampling composers, particularly those working within dance music, are interested in grooves.

            Morey and McIntyre don’t despair, however. They find affordances in the registering of compositions. Songwriting copyright doesn’t have to be assigned to lyricists and melodic composers only. Rock groups can opt to give songwriting shares to drummers and bassists, and dance acts can give them to programmers and producers. In fact, the advice that PRS give to songwriters is that ‘the decision is entirely theirs’ when it comes to working out the splits. Consequently, Morey and McIntyre find a range of approaches among the artists they interview. Some groups divide up their songwriting shares equally, while others have a primary songwriter. They find dance acts dividing credits between the producer of the rhythm and the writer of the topline melody; elsewhere they find engineers, programmers and editors receiving shares.

            In summary, they state that ‘the way creativity is remunerated … is one that recognises a multiplicity of realistic situations and necessarily down-to-earth considerations in determining “the split” of … collaborative creative output’.

            I'm not keen to see copyright extended in any direction. At the same time, however, I find Morey and McIntyre's work useful. It reminds us that no matter how expansive the legal system gets, music creators will always find affordances in which to make their work. In fact, one of ways to create interesting work is to operate at the limits of that system.