The Thin of It

In Britain, musical compositions gained copyright protection because they were equated with literature. The 1710 Statute of Anne – the world’s first copyright Act – awarded copyright to the authors of ‘published books and other writings’. This Act sought to regulate the book trade and it was originally conceived as covering the written word only. Nevertheless, it was successfully argued in the 1777 case of Bach v Longman that music ‘may be written; and the mode of conveying the ideas is by signs and marks’. Music could be captured in notated form. Therefore, it was held to be one of the ‘other writings’ covered by the 1710 Act.

There is a contradiction at the heart of this legal argument, however. Music could only be equated with books because literary copyright was no longer being equated with books. Anne Barron has charted the changing theorisation of copyright in the eighteenth century. It was formulated as ‘information technology law’ but became ‘intellectual property law’. The Statute of Anne, according to Barron, had a ‘physicalist’ conception of copyright. She states:

What we find in the 1710 Act, in fact, is the earliest manifestation of a now familiar legal technique for dealing with the definitional problems presented by intangible objects of intellectual property: the products of cultural technologies, and the forms that these products assume when they become objects of market exchange, are taken as real-world analogues of, or templates for, the virtual objects to which intellectual property rights attach.

Here the literary work and the book in which it appears are as one: ‘to trespass on this object, the defendant would have had to copy word-for-word by printing a facsimile edition’.

            Literary copyright expanded beyond this physicalist conception, however. According to Barron, it was eventually viewed in a ‘formalist’ manner instead. This transformation ‘involved identifying the literary object as an entity whose existence exceeded these surface details; identifying it, in other words, as a “work”’. Barron places the formation of this thinking in the ‘literary property debate’ of the 1760s and 1770s, which sought to determine whether there had been a common law property right in literary compositions prior to the Statue of Anne. Lawyers argued that ‘paper and print are merely accidents, which serve as vehicles to convey [...] style and sentiment’, and that literary expression is ‘somewhat intellectual’ and ‘detached from the manuscript or any other physical existence whatsoever’. Barron states that:

Here, the object of copyright is imagined to be an expressive form or system of signs, comprising not only signifiers (words, in the case of a literary object) recorded on, or embedded in, a physical substrate, but also the signifieds (ideas) to which these are linked and the manner in which both signifiers and signifieds are connected to form a unified whole; and what distinguishes this entity from other such entities is not only the ‘sentiments’ it conveys, but also its author’s singular mode of thinking and expressing these.

The result was an enlargement of copyright. It expanded in two ways. First, literary copyright was now ‘thick’. Authors and publishers could claim infringement for the theft of the particularities of their style and for the borrowing of sections of their works, whereas in the past they had only been able to prosecute the full and exact replication of a text. Secondly, as the idea of what constituted writing became more amorphous, it became possible to view copyright as encompassing more than just books. The copyright of music arrived on the back of the formalist reconfiguration of literary works.

The copyright of musical compositions was formalist as well. In the 1835 case of D’Almaine v Boosey, Lord Chief Baron determined that:

the most unlettered in music can distinguish one song from another, and the mere adaptation of the air, either by changing it to a dance or by transferring it from one instrument to another, does not, even to common apprehensions, alter the original subject. The ear tells you that it is the same. The original air requires the aid of genius for its construction, but a mere mechanic in music can make the adaptation or accompaniment. Substantially the piracy is where the appropriated music, though adapted to a different purpose from that of the original, may still be recognised by the ear. The adding variations makes no difference in the principle.

Consequently, the copying of musical works does not have to be exact for infringement to have taken place. Composers have protection for both their signifiers and their signifieds.

            In addition, their copyright is ‘formalist’ regardless of whether their works are set down in sheet music or are captured in recordings. This is just. After all, if a musical composition is a form of writing, then so is a record. The terms ‘phonograph’ and ‘gramophone’ both derive from the Greek for sound writing. The analogue groove is an audio trace that is written with the ‘pencil of nature’. In my book Vinyl, I suggest that the groove ‘dissolves the difference between the signifier and the signified’. At the beginning of the 20^th century, composers were arguing that, because the groove is writing, they should be able to derive royalties from sound recordings, just as they were doing from sheet music. In 1905, a French court ruling stated that:

Finding that disks or cylinders are impressed by a stylus under which they pass; that they receive a graphic notation of spoken words, that the thought of the author is as though materialized in numerous grooves, then reproduced in thousands of copies of each disk or cylinder and distributed on the outside with a special writing, which in the future will undoubtedly be legible to the eyes and is today within everyone’s reach as sound; that by virtue of this repetition of imprinted words, the literary work penetrates the mind of the listener as it would by means of sight from a book, [therefore] the rules of plagiarism are applicable to it.

A recording is nevertheless different to sheet music. Contributing to the early copyright debates, J. Drummond Robertson, manager of the Gramophone Company (later to become EMI), argued that each recording has three authors:

(1) The composer who writes the work; (2) the artist who performs it for the purpose of recording the sound waves of his voice; and (3) the inventor and mechanician to whom is due the possibility of registering and subsequently producing in commercial form a means by which these sound waves, the artist’s voice, may be reproduced.

Robertson and the heads of the other British record companies proposed a solution: there should be a separate copyright in the sound recording. This was granted in the Copyright Act 1911, which states that ‘Copyright shall subsist in records, perforated rolls, and other contrivances by means of which sounds may be mechanically reproduced, in like manner as if such contrivances were musical works’. There were various differences, however. First, this copyright was awarded to the ‘inventor and mechanician’ – the record company. Composers, meanwhile, were awarded a royalty on each record sold. Performing artists received no copyright rewards. Second, the duration of copyright was shorter: because it was awarded to the manufacturers, rather than to the composers or the performers, it lasted 50 years from the date of release and not for the life of the author plus 50 years. Third, this copyright was ‘thin’. Sound recording copyright has always been conceived in physicalist terms. You cannot prosecute a record for sounding like another record; you can only prosecute if the sound recording itself is being used. You have to pay for samples; you do not have to pay for interpolations.

For Jason Toynbee ‘the inferiority of the copyright in the recording, its purely physicalist definition’, is a good thing. He believes that it mitigates against a ‘hypostatization of form’. Performers are able to mimic the sounds of other performers, and so the dialogue of ‘phonographic orality’ is able to spread. We can find evidence of this in the blues, Dr Dre’s G-Funk, cover version albums of chart hits, and TV adverts that use soundalike performers. Why, though, should the record companies have sought a thin copyright rather than a thick one? The answer surely lies in the fact that it was good for them. By emphasizing the ‘physicalist’ nature of manufactured product, rather the ‘formalist’ style and sentiment of the composers or performers, it made their claims to the ownership of copyright appear more just. Formalist copyrights, as Richard Arnold has noted, ‘protect the creativity of authors expressed in their works’. Physicalist copyrights, in contrast, ‘protect investment’. This situation has persisted in the UK for more than a century. Sound recording copyright goes to the party that makes the arrangements necessary for the recording to be made. It does not go to the person who creates it.

Fight for Your Right to Equitable Remuneration!

The British Copyright Act of 1911 contains a crucial line. Clause 19(1) states that ‘Copyright shall subsist in records, perforated rolls, and other contrivances by means of which sounds may be mechanically reproduced, in like manner as if such contrivances were musical works’. In order to establish a songwriting copyright in relation to sound recordings (and other ‘mechanical’ contrivances) there was a need to equate records with sheet music, i.e. ‘musical works’. Artistic copyright was strongest in relation to the printed word or score. Here, authors and their publishers received copyright income in relation to each copy sold. Consequently, one of the methods used to establish this equivalence between sheet music and sound recordings was to claim that the groove of a record was a form of writing (see ‘Audio Books’ for further details).

As a result of clause 19(1), songwriters received a copyright share in record sales, just as they had done in sheet music. It was originally deemed that 5% of the retail price of record should go to the authors of musical works. In anticipation of this measure, various ‘mechanical’ copyright collection societies were formed. These eventually morphed into the Mechanical-Copyright Protection Society (MCPS), which was established in 1924.

There was another consequence of the Copyright Act. Despite its intentions, it demonstrated that there were differences between mechanical reproduction and musical works. When it came to musical works, the author of the work was deemed to be the songwriter. Songwriters were therefore the ‘first owners’ of these works and were free to exercise their rights as they wished. Clause 19(1) crated a separate copyright for mechanical reproducers, now commonly referred to as sound recording copyright. The owners of this copyright were not the songwriters, however, nor were they usually the performers who appeared on the records. Clause 19(1) instead decided that ‘the owner of such original plate [the master copy of the record] at the time when such plate was made shall be deemed to be the author of the work’. The owners of these plates were the record companies. Accordingly, they were regarded as the first owners of the sound recording copyright.

Today, most recording artists receive payment in the form of advances from their record companies. If they recoup those advances, they also receive royalties. As Peter Martland has outlined, there was a different method of paying popular musicians and singers during the first three decades of the twentieth century. While a few opera singers and classical musicians received royalties, this was rare for popular artists. The most successful of these might be paid a yearly retainer to record exclusively for a record company. When it came to making records they would also receive a session fee but no royalties. Lesser-known popular artists would receive session fees only. Essentially, they were being paid a one-off sum to perform in a recording studio.

At the time of the 1911 Copyright Act, these recorded performances were usually destined for domestic consumption: most records were played in people’s homes. In the coming years recorded performances increasingly came to be heard in performance contexts. As reproduction technology improved, records were more regularly played in public spaces. They also began to be broadcast, forming part of the repertoire of radio networks from the early 1920s onwards. And by the late 1920s recordings could be heard in films.

By this time the performance right for musical works was beginning to be established. The Performing Right Society (PRS) had been formed to administer this right in 1914 and had gradually gained converts amongst songwriters, composers and publishing companies. With the advent of new technologies, performance right income became increasingly important. However, despite the desire of clause 19(1) to establish copyright parity between mechanical reproduction and musical works, it was not generally assumed that this right existed in relation to sound recordings.

In 1933 the Gramophone Company brought a test case to clarify this point. Carwadine & Co had been playing recorded music in their coffee shops; the Gramophone Company deemed this to be a breach of their performing rights. In the resulting court case it was ruled in the record company’s favour that clause 19(1) did warrant a performing right in sound recordings. In the following year Britain’s two major record companies, the Gramophone Company (which by then had become EMI) and Decca Records, joined forces to create Phonographic Performance Ltd (PPL) to administer the performing right in sound recordings.

As the owners of sound recording copyrights, record companies were now legally entitled to all the performance right income earned by their records. The recording artists, who they had hired to perform on these records, were not due any money when these records were themselves ‘performed’. What followed is one of the quirks of copyright law. The first owners of the sound recording copyright shared their performance income with their recording artists even though, initially at least, there was no legal requirement for them to do so.

According to PPL’s own history, it was their choice to give the artists a share of this income. In their publicity materials they state, ‘This intelligent and far-sighted decision was particularly remarkable because of its voluntarily nature, bearing in mind that there was no legislative or other external pressure on PPL at the time’. In its early years PPL allocated 80% of its income to record companies and 20% to the artists on their records. These splits were amended in 1946; henceforth 67.5% went to the record companies, 20% to featured artists, and 12.5% to the Musicians’ Union (MU).

PPL also came under external pressure. Stephen Barnard believes that it was, in fact, the MU who were responsible for artists receiving a share of performance income. He has written that ‘Under the original [PPL] agreement, revenue received for public performance of records went direct to the participating companies, but this was modified in 1935 under pressure from the MU, whose members could in law claim no royalties for the public performance of their recorded work (the copyright resting with the companies themselves)’. He adds that it was ‘New negotiations between PPL and the MU’ that resulted in the share allocated to the MU in 1946. The MU’s position in these negotiations is understandable. For a long time the organisation campaigned against sound recordings, as it felt records provided a cheap and inferior alternative to its members live performance work. This stance was later embodied in the Union's slogan, ‘keep music live’. (Ironically, the 'keep music live' campaign, which was initiated in 1964, was funded by recordings: the MU didn't allocate the money it received from PPL to the artists who appeared on records, but instead used it collectively. The 'Phonographic Funds' were distributed in various ways: some money went to members who had fallen upon hard times, other funds were used to finance various large-scale orchestras, some was spent on a series of May Day dances, and a 'large proportion' was used for the Union's promotional campaign.) 

Why should PPL concede to the MU's demands? Sarah Thornton has listed several possible reasons. First among them is the fact that the Union helped PPL to maintain control of its repertoire, as they forbade their members from recording with non-PPL companies. Secondly, MU members monitored record performances and copyright infringement at a local level, something that the understaffed collection society was unable to do. In addition, John Williamson has suggested that 'fear on the part of the record companies of a recording strike and a challenge to PPL's collection arrangements meant that they were willing participants in post-war discussions with the MU'. It should nevertheless be noted that the MU was only receiving 12.5% of PPL's money - there was a further 20% that was allocated to artists, and this money was distributed directly to the owners of the sound recording copyrights. Moreover, PPL continued to pay artists a share of their income, despite the fact that records came to be seen as less of a direct rival to live performance. They also continued to do so despite the declining power and membership of the MU. It might be that another aspect of PPL's farsightedness was envisioning that the artists’ share would eventually be enshrined in law.

It took a long time to reach this point. Section 5 of the 1956 Copyright Act clarified that a performance right existed in sound recordings, but failed to mention any artist rights. The UK signed up to the 1961 Rome Convention, article 12 of which states that an 'equitable remuneration' is due when recordings are broadcast or communicated to the public. There is a lack of clarity in this article, however. It states that this remuneration should be paid to 'the performers, or to the producers of the phonograms, or to both', and that it can be divided by 'agreement between these parties' or by domestic law. It was not until the European Union ‘Rental Directive’ of 1992 that the matter was settled. Article 8(2) ruled that ‘Member States shall provide a right in order to ensure that a single equitable remuneration is paid by the user, if a phonogram published for commercial purposes, or a reproduction of such phonogram, is used for broadcasting by wireless means or for any communication to the public, and to ensure that this remuneration is shared between the relevant performers and phonogram producers’.

The UK’s Copyright, Designs and Patents Act was amended in respect of the Rental Directive. In 1996 a section titled ‘Right to equitable remuneration for exploitation of sound recording’ was added. Clause 182D(1) states that: ‘Where a commercially published sound recording of the whole or any substantial part of a qualifying performance - (a) is played in public, or (b) is communicated to the public […] the performer is entitled to equitable remuneration from the owner of the copyright in the sound recording’. PPL’s literature explains what they did next:

When considering this new legislation, and after lengthy deliberations, the PPL Board agreed that the performers should benefit by receiving 50% of all ‘qualifying’ income on a track by track basis. This was a voluntary decision as legislators declined to recommend any particular split of PPL income. This meant that every single performer, whether featured or non featured would have to register their details with PPL or one of the newly formed UK performer organisations to enable their royalties to be forwarded to them.

The featured performers are those who have an exclusive contract with the record company issuing the record. Non-featured performers are commonly session musicians and backing singers. PPL has fairly complicated methods for dividing this income between the two types of performer. In general, however, the income is split 65:35 between featured and non-featured artists. This revenue has become increasingly important. In 2012 IFPI noted that ‘Performance rights income now accounts for 6 per cent of record companies’ trade revenues worldwide’. It would be higher still if it weren’t for the fact that copyright legislation has forced record companies in some countries to share this income equitably with their artists.

Finally, I would like to return to clause 19(1) of the 1911 Copyright Act and its idea that the copyright in records should operate ‘in like manner’ to the copyright in musical works. The Rental Directive has brought a form of parity between writers and artists. When it comes to the performing right, the songwriter members of PRS commonly receive 50% of this income directly, while 50% is paid to their publishers. The songwriters’ share is safeguarded in this manner because members assign their performing right in their compositions to the collection society. Their income from this right does not have to be paid off against publisher advances. In a similar manner, recording artists now receive 50% of the performing right income directly and this too does not have to paid off against their record companies’ advances. There remains a fundamental difference, however. Artists may well receive a 50% share of the performing right in sound recordings, but this share has been established without any fundamental change being made to the authorship or ownership of sound recording copyrights. In the majority of cases these still belong to record companies. But, surely some light has been let in here? The performing right underlines a conceptual problem that exists when considering record companies to be the authors of sound recordings. If artists are now considered as equal partners in the performing right, why not make them equal partners in the underlying sound recording copyright as well? 

Words and Music: That's the Joint

In the last blog entry I wrote about the declining status of status of lyricists and the declining share of songwriting income they might happen to receive. Here, I’m going to look at another reason for the death of the 'author', one that might be occasioned by the nuances of copyright law, or it might be occasioned by the fact that musicians aren’t very good at filling in forms.

British copyright law has viewed music and lyrics in two ways. It increasingly took a Bono-ite line, regarding music and lyrics as being one, but not the same. In its origins, however, the law was Spice Girls-eque. It viewed the lyrical and musical elements of a song as being two that become one. Within the past 12 months, that Spice Girls point of view has come back into focus. Music and lyrics can now dream of being together (almost) forever. 

The first British legislation to fundamentally address recorded music was the Copyright Act of 1911. It advises that ‘a musical work shall be deemed to include any words so closely associated therewith as to form part of the same work’. The 1988 Copyright, Designs and Patents Act reversed this policy. Here, ‘“musical work” was described as being a work consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music’. Under this legislation, lyrics had to lead a separate life. They were deemed to be ‘literary works’ rather than ‘musical works’. This had an effect when songwriters filed their songs with PRS for Music and declared whether they were authors (the writers of the lyrics) or composers (the writers of the music). In the UK if you were identified solely as a lyricist you could not be awarded joint authorship of a song with the musical composer(s). This is because joint authorship was defined on the basis that ‘the contribution of each author is not distinct from that of the other author or authors’. Literary and musical works were deemed to be distinct. PRS for Music regarded the two practices in this way. In the advice that they handed out about copyright law, they stated that ‘where two or more persons do collaborate but it is possible to determine the separate parts attributable to each author it will not be a work of joint authorship’.

It has nevertheless been the case that most PRS members have failed to classify themselves as either a composer or author. They have instead presented themselves as a hybrid kind: the composer-author. There are a number of reasons why the members have chosen this designation. One is because there are few songwriters who only write lyrics. It is often the case that the lyricist is the singer. In the process of working on their songs with musicians, many singers are involved in composing the top-line melody along with the words. Conversely, the musicians will sometimes chip in with lyrical ideas. A second reason is because some songwriters and/or their publishers fail to understand the distinction between composer and author and thus claim to be both. Alternatively some songwriters and publishers fail to complete this section of the PRS works form, in which case they will be listed as composer-authors by default. A final reason why songwriters and their publishers have chosen the composer-author designation is because joint authorship has real effects. It means that the ownership of the work cannot be divided in any way. Therefore, if an act does an instrumental cover version of a song that has lyrics, the lyricist will still get paid. Similarly, if there is a foreign language version of a song, the original lyricist maintains a share. Copyright lasts until 70 years after the death of the last ‘joint’ author. Consequently, it has been financially advisable for all contributors to a song identify themselves as composer-authors, at least if they’re thinking with their dependents in mind.

American songwriters receive similar benefits, but in their own country there has been a different legal framework. US copyright law has not deemed lyrics and music to be distinct. The 1976 Copyright Act groups them together under the category of ‘works of the performing arts’. Joint authorship has also been classified in a different manner. In America a ‘joint work’ is a 'work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole'. The vast majority of songs are automatically classified as joint works. It is believed that it is the plan of most lyricists and composers to weld their contributions together in a unified work of art. This law even applies when lyricists and composers are divorced by time and space. If they intend their work to come together as part of a whole, it doesn’t matter where they were when they composed their own part. It is only when there is a lack of consent in the merger that lyrics and music are treated as separate within American copyright law.

There are countries within the European Union who have a similar outlook. They see that, conceptually, a song with words is created as a joint enterprise. This is also the view taken by the EU's legislators. In the same 2011 directive that extended the duration of sound recording copyright from 50 to 70 years, it was deemed that the majority of songs are the result of joint musical and lyrical enterprises. The document states that Article 1 of EU Directive 2006/116/EC should be amended to read: 'The term of protection of a musical composition with words shall expire 70 years after the death of the last of the following persons to survive, whether or not those persons are designated as co-authors: the author of the lyrics and the composer of the musical composition, provided that both contributions were specifically created for the respective musical composition with words'. The UK implemented this directive on 1 November 2013.

Despite these changes and the differences between British, European and American law, the registration of songs looks much the same: most modern songs are classified as being written by composer-authors. As such, we know that there is a lyrical input in there somewhere, but the precise origin of this input is hard to locate. Everybody, it seems, is a lyricist now. They are all composers too. 

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 . . .