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.

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.