Recording Bias

Music copyright is elitist. Many theorists have made this claim. They have pointed to the fact that copyright law tends to equate music with its notated form. It therefore over-privileges aspects that can be written down - principally melody and harmony – while it deals unfairly with those elements that can only be loosely captured in a score, such as rhythm and timbre. It is suited to classical music; it is not suited to popular music.

There is evidence of this bias in case law. The Spandau Ballet case, for example, stemmed from a dispute between guitarist Gary Kemp, who claimed that he was the sole author of the group’s songs because he initiated them, and the other members of the band, who argued that they should be regarded as co-authors because they fleshed out Kemp’s compositions with their musical arrangements. Park J found in Kemp’s favour, noting that

A composer can ‘hear’ the sound of his composition in his mind before he ever hears it played. Beethoven could hear his music in this sense even when he was deaf. When Mr. Kemp was devising his songs the sound which he had in his musical consciousness must surely have been the sound they would have when performed by Spandau Ballet, not the sound they would have when sung by Mr. Kemp alone to the accompaniment just of his own guitar.

This decision rested on the conception of the genius romantic composer.

            It should nevertheless be remembered that most songwriting agreements do not come to court. In addition, songwriters are free to make their own decisions about musical worth. They can credit groove and timbre if they want to. In fact, common practice amongst hip-hop and R&B composers is to give 50% of the compositional credits to the author(s) of the rhythm track. If there is an elitist bias, it is at a judicial level; it is not enforced by the legislation itself.

            There is a classical music bias that has been overlooked, however. Academics have focused on the copyright in songs. They have not addressed the elitism of sound recording copyright, which it could be argued has had more profound effects. It is in this area that the bias is legislatively embedded.

Sound recordings have regularly been equated with film in copyright law. There is a fundamental difference, nonetheless. Films have the possibility of two copyrights. There is one that recognises financial and organisational skills, which is awarded to the producer, and another that recognises the original creativity in films, which is usually awarded to the director. In contrast, there is usually only one copyright in sound recordings. It recognises financial input and organisational skills, and is commonly claimed by the record company.

Why is there no creative copyright in sound recordings? Classical music can take some of the blame. Film directors have been awarded a copyright because of their genius. These auteurs take the base material of the film script and convert it into a new artistic work (this conception of directors is itself a reflection of the romantic bias of copyright law). If sound recording were to receive a similar copyright, evidence would need to be provided of creative individuals who take the musical composition and by virtue of their ‘personal and original character’ create a new work, which can be judged to have artistic merit of its own.

If we look at popular music, we can see this happening all the time. Records are valued as much for their production values and the recording ability of the musicians as they are for the underlying song. The producer and the musicians are not following the written instructions of a score; they are making musical and sonic decisions of their own. In contrast, when we turn to classical music, we are not meant to hear the recording studio as a compositional tool. Instead, classical music production is dominated by the ‘concert hall ideal’. The recording is supposed to sound as close to a live performance as possible. The job of the record producer is to be unobtrusive. Similarly, the job of the performers is to follow the score. Their creative genius should be submerged; they are obeying the instructions of the musical composer.

Sound recording copyright has been legislated with classical music in mind. Recording activity has been deemed to be passive at best and damaging at worst. As such, it is not considered worthy of a creative copyright of its own. It is beyond the bounds of the Berne Convention, the international agreement that assesses the creative rights of authors in literary and artistic works. In 1908, British delegates to the Convention suggested an author’s copyright in sound recordings, similar to the one that was being created for films. Their proposal was rejected. Other delegates believed that sound recording was a ‘travesty’, stating:

the composer suffers at present moral injury, from the fact that his work is usually deformed by the necessities of adaptation to the instrument [the gramophone]; the orchestration is re-arranged, melodies are modified because certain notes register badly; ‘scenas’ are cut, and arranged to suit the length of playing of the disc.

In Britain in the early 1950s, members of Gregory Committee assessed the legislation of sound recording copyright by attending the recording of a Mozart symphony. They reported that there was a ‘very high degree of skill (in part technical, in part musical) called into play in recording music’, but concluded that recordings ‘approximate more closely to industrial products than to original literary or musical works’. As such, in the consequent 1956 Copyright Act there was only one copyright in sound recordings, which was awarded to the manufacturer. This remains the case in current British legislation. The Copyright, Designs and Patents Act recognises the director and the producer as separate authors of a film. When it comes to sound recording, however, there is a solitary recipient of copyright: ‘the person by whom the arrangements necessary for the making of the recording ... are undertaken’.

Brazil, Chile, China, Costa Rica, the Dominican Republic, Iceland, Peru, Turkey, Uruguay, Zaire and the countries of the European Union all recognise two copyrights in film. They have one that recognises creative skill, while the other recognises the producer’s duties. In contrast, Ghana is the only country that recognises two sound recording copyrights.

It could be argued that this issue crosses the lines of the copyright in sound recordings and the copyright in songs. If recorded performances and record production were recognised as composition, then this artistry could be absorbed into songwriting credits. In many instances, in fact, this already happens. For example, the majority of hit songs in the UK charts last year were co-authored by professional songwriters, recording artists and (sometimes) record producers. Nevertheless, it can be argued conversely that these credits are the result of a defect in copyright law. In many instances composition, performance and production continue to be separate skills. Musicians and record producers are only documenting their artistic practice as composition because the law gives them insufficient recognition elsewhere. If there were a creative copyright for sound recording it would enable this artistic practice to be recognised appropriately. The elitist bias of legislation would be properly located and addressed.

Words and Music: Doing the Splits

In his book Performing Rites, Simon Frith tells the story of a correspondence between the novelist/lyricist Margaret Radclyffe-Hall and the publishers Chappell and Company, which took place in 1918. Radcylffe-Hall had written the words to the hit song ‘The Blind Ploughman’. She had not received any royalties, however, and wrote to the publishers seeking redress. William Davey, the chairman of Chappell, excused his company’s parsimony on the grounds that:

Unfortunately, we cannot afford to pay royalties to lyric writers. One or two other publishers may, but if we were to introduce the principle, there would be no end to it. Many lyrics are merely the same words in a different order and almost always with the same ideas. Hardly any of them, to be frank, are worth a royalty.

He concedes that he has ‘admiration’ for the words to ‘The Blind Ploughman’ and offers her a one off payment of 20 guineas for her troubles. Frith states that Davey’s ‘letter is interesting in a number of ways, not least for its revelation that Chappell was, apparently, routinely breaking the law – the Copyright Act of 1911 included lyricists in musical composition regulations even though music publishers had campaigned against this’. Frith is alluding to clause 19.2.b.ii of the Act, which states, ‘a musical work shall be deemed to include any words so closely associated therewith as to form part of the same work’. Here, British law was following the Berne Convention of 1886, which sought copyright protection for ‘musical compositions with or without words’.

            Frith is right. It is interesting that Chappell were refusing to pay Radclyffe-Hall. What’s less clear is whether the publishers were breaking the law. If the issue was to do with sheet music, then presumably so: Chappell would have been printing copyrighted words without permission. If the issue was to do with royalties for public performance or for the sale of records (the mechanical right), then things are more complicated. It is mechanical royalties that clause 19.2.b.ii is referring to. Despite the 1911 Copyright Act's recognition of the integral importance of lyrics, however, it set no value on what they were worth. In fact, as far as I am aware, British copyright law has never determined what portion of a song’s performance or mechanical royalties should go to the lyricists and what portion should go to the musical composers. The responsibility for determining these splits was first taken on by music copyright societies. France took the lead here. It established the world's first collection society in 1851. It is of consequence that this society was formed jointly by a lyricist, a composer and a publisher, a partnership that is reflected in its title: Société des auters, compositeurs et éditeurs de musique (SACEM). It was determined that these three parties would share copyright money in equal proportions. When the UK eventually set up its own Performing Right Society (PRS) in 1914, the same split was adopted. Other countries have used different methods, however. The German society, GEMA, originally determined that publishers could have no more than a 25% share. Moreover, while France has retained is three-way split, other countries have moved towards a model where the publisher has a 50% share and the songwriters split the remaining 50% between them (albeit that in private the publisher might also give the songwriters a portion of their share).  

For much of the 20th century, whatever the size of the remaining portion, its most common allocation was to be divided equally between a lyricist and a composer. It was in the inter-war period that much of the ‘Great American Songbook’ was composed. Many of these classic 1920s and 1930s songs were written by partnerships: Harold Arlen and E.Y. Harburg; George and Ira Gershwin; Richard Rodgers and Lorenz Hart; etc. and etc. In each case the former wrote the music and the latter wrote the lyrics, and in each case the composers and lyricists were allocated an equal split of the royalties. The Brill Building songwriting teams of the 1950s and 1960s also operated according to this split, as did the songwriting partnerships in British beat groups. It has been prevalent in musical theatre and has been used by classicist indie songwriters. The idea of a divided split between lyricist and composer is also maintained in much copyright advice.

It has, however, been challenged in a number of ways. One of the problems that traditional splits have presented for self-contained groups is that they are equitable for some members, but not for others. The songwriters will end up richer than the other performers in the band. In many cases the high earners will be the guitarist (who is receiving royalties for writing the music) and the singer (who gains royalties for the words). This disparity has caused bands to split. Alternatively, they might amend their ways. Queen used to allocate songwriting royalties to the principal songwriter of each song, but by the end of their existence were splitting shares for all songs four ways. The Clash were another group who progressed towards presenting their songs as group compositions. Other groups, among them some of the longest-lived, have decided from their inception to allocate shares equally to all members. U2, REM, Coldplay and Elbow all operate in this manner. Others devise more complicated methods. Each member generally receives a royalty share for every track, but these are not allocated equally. The most ‘important’ members (still commonly the singer and the guitarist) will receive a larger allocation. These practices aren't limited to ‘authentic’ guitar bands, either. Some pop acts, such as the Spice Girls and the Sugababes, split their shares between writer/producers and the singers in the group, and the same is true for many solo artists who work with songwriter/producers. In the pop world, too, there is a wide variance in shares. Sometimes they will be split equally, other times more complicated divisions are devised.

Songwriting spits have also been complicated by the practices of sampling and interpolating. Hip-hop tracks, in particular, are a mess of credits. Many, in fact, remain perpetually unresolved. Hip-hop and dance music have also turned traditional musical hierarchies on their head. Where it used to be the case that a song’s melody and words were deemed to be of most value, these genres have seen more credit accorded to the beat. This could be considered an ironic outcome for hip-hop, the most word-based of all popular music forms. It was this genre, however, that shone a light on how unfairly some copyright allocations had been devised. The raps of hip-hop have traditionally rested upon sampled drum breaks. The drummers who devised these breaks have failed to see any royalties for their work. Clyde Subblefield played the famous 'funky drummer' solo, but it's composition credits go to the composer of the song's 'melody', James Brown. Gregory Coleman devised the 'Amen Break', often considered to be the most sampled drum solo of all, and yet the royalties go to Jester Hairston, writer of 'Amen', the song that Coleman's band, the Winstons, were covering. Fewer drum breaks are sampled today. Rhythm tracks are instead created by producers, who will then send these beats to other songwriters so that they can be completed with melodies, harmonies and words. As if mindful of the past injustices meted out to drummers, these producers will demand half of the songwriting royalties. Correspondingly, there are now songwriters who specialize in writing only one part of the song, whether that be the hook or an eight-bar of rhymes.

 There’s something good about these changes. The complexity of pop composition is being recognised and more of the interested parties are receiving some shares. It is also good that popular music copyright is no longer in thrall to classical conventions, with their emphases on melody and harmony over rhythm and timbre. Nevertheless, if the old melodist/lyricist split represented an unfair reflection of the contributors to a work, the new methods fail to bring us any closer to knowing exactly who did what, or towards an understanding of what any of it is really worth.

They also have another consequence. In many cases it is rhythm that is on the rise. When it comes to rock music, the bass players and drummers in bands now appear on more songwriting credits. When it comes to dance music, the producers of rhythm tracks are often the ones who are determining the splits. It is generally assumed that this is happening at the expense of the other musicians, and it is true that many guitarists and keyboard players now receive a lower share of the royalties. There is, however, another activity that is getting squeezed. On the surface, lyrics are still worth 50% of the songwriting shares. If you look at the credits for any song, at least half of the writers' income is going to somebody who is credited as an 'author'. When it comes to popular music, however, few of these writers are only responsible for the words. Most are instead listed as 'composer-authors', meaning that they have an input into both the music and the lyrics. The complicating factor here is that it is not just the main lyric writers who are adopting this credit, in many cases it is being applied to all of the members of a band. It is also being applied to all the members of songwriting teams. And it is being applied no matter how great or small the contribution to the lyric writing is. In fact, there's really no way of checking whether these numerous composer-authors actually contributed to the lyric-writing process. As a consequence, the author who was responsible for writing the majority of the lyrics might well end up with less than 50% of the songwriting share. The composer-author title is reflective of modern songwriting practice. At the same time, it allows songwriters to circumvent the strict 50/50 lyricist/composer split that some of the collection societies require. It has also had another consequence: the composer-author credit has helped to provide longer-lasting copyright protection. But that’s another story for another day . . .