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.

Love of Labour

These days people hark back to the mixtapes and describe the creation of them as a labour of love. In doing so they emphasise the wrong part of this practice. There has been a large body of writing about the romantic aspects of creating these tapes; compiling them as love letters to the person you wanted to date. In my own experience romance was only a small part of mix-taping practice. Sadly, perhaps, I was more likely to make mixtapes for my mates (what does this say about my sexuality?). Most often I made them for myself (admittedly, I did have a fairly isolated upbringing).

            And I made a lot of mixtapes. In fact, just about every vinyl record I bought, as well as any pre-recorded cassettes or CDs, was reconfigured and re-contextualised as part of a tape compilation. This didn’t represent a labour of love, but rather a love of labour.

            There is a type of listening practice that is idealised above all others: dedicated, motionless listening, preferably through headphones and better still in the dark. This is the pop equivalent of the classical music concert: listening that supresses bodily activity. As with so many aspects of classical ideology this needs to be countered. Simon Frith has made a strong argument for dancing as an ideal way of listening. This is a political move. He wants to overturn the idea that rhythmically-focused black music should be reduced to ‘feeling’ while harmonically-sophisticated white music is the bastion of ‘thought’. He argues instead that ‘dance matters not just as a way of expressing music but as a way of listening to it, a way into the music in its unfolding – which is why dancing to music is both a way of losing oneself in it, physically, and a way of thinking about it, hearing it with a degree of concentration that is clearly not “brainless”’.

            In black culture there is a dynamic cluster of meanings around the word ‘work’. When you are ‘working’ you might be doing your job. The term is also applied to dancing and to dancing’s great correlate, sex. This metaphorical usage stretches from Hank Ballard’s ‘Work with Me, Annie’ through to Michael Jackson’s ‘Working Day and Night’ and beyond.

            Returning to the subject of mixtapes, I want to raise a less titillating equation between working and absorbing yourself in sound. Another great way of listening to music is to turn it into a job. For me, the making of mixtapes wasn’t romantic; it was an industrial process. In my own vainglorious way I was imagining myself as a producer or engineer. I was selecting, sequencing and editing. Like dancing, this changed listening from a passive process into an active one. It was also a way of getting closer to the music. I have written before about the reciprocal relationship between recording personnel and the public: producers mix recordings with an imagined ‘ear’ of the public; one of the ways that the public listens to music is by imagining the scenario in the recording studio. There are all sorts of ways of miming along to the records we play and there various locations that we can picture ourselves in – the air guitar and the live concert are not the only games in town. In fact, one of the best ways of locating ourselves in recorded sound is to configure ourselves as engineers. And this, as much as courtship, is where the mixtape came in handy.