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. 

Here Comes Success

Most popular music biographies, whether in print or on film, have the same lacuna. They deal well with the pre-fame years. This period is often covered in great detail, particularly in musicians’ autobiographies, which may say something about the arrested development that fame forces upon its recipients. Music biographies also deal reasonably well with the years of the fame, albeit that this period frequently turns out to be more dull than the pre-fame years.

What is missing or what tends to be obfuscated is how this fame is achieved. There is usually a quick leap between obscurity and mass adulation. This can be frustrating, particularly for those who want to have similar success. The aspirant musician is left with no clue as to how it is achieved.

            There are various possible reasons why the attainment of success is glossed over. One is that artists and their employers would like it to be mystified. The work that goes into making it is either more prosaic or more undignified than they would want to be made known. Another reason is that the success might not be as ‘popular’ as it has commonly appeared. The cash nexus between the artist and fan might be superseded by various behind-the-scenes deals.

            Or perhaps the attainment of success genuinely is peculiar. Artists may well have made it without knowing quite what has happened. One of the filmic conventions for demonstrating rapid success is to show a montage sequence of escalating hysteria, accompanied by swirling media headlines documenting the artist’s rise. I used to be frustrated with these, but have come to think that this maybe is how success feels. Take-off can be so sudden that it feels as though it has taken place in jump cuts. Meanwhile, the newspaper headlines neatly summarise the role of the media in both covering and amplifying success.

            The second episode of ‘Cilla’ was on British television last night. This three-part drama documentary is charting the career of the singer Cilla Black. The first episode was concerned with her pre-fame years. Last night’s episode documented the arrival of fame. Unusually, it was more interesting than the early years. It also made a better stab than most at communicating how the attainment of success feels. It helped that the great Sheridan Smith was playing the lead role. It also helped that the true Cilla story contains elements that are both dramatic and sudden. She moved quickly from being on the fringes of the Beatles’ scene (famously being the cloakroom attendant at the Cavern Club) to being a signed recording artist.

            That said, the programme glossed over a great deal and included much dramatic licence. Although Cilla was shown in the recording studio, there was no indication that she promoted her releases. Instead, she was shown back in Liverpool, waiting for news from the distant metropolis. She received this news via a public call box. While there might have been an element of truth in this, surely she could have listened to the chart run-down on a radio. Nevertheless, I found myself sharing her elation when she heard that she had made it to number one. I found myself thinking, yes, that is what it must feel like. This is because it showed Cilla on the cusp and in-between. It was her who had made the hit record, but its ascension was happening apart from her, while she remained in her old world. The phone box was a portal to new places and to different time-frames, just as it is in Dr Who. Maybe I just want the mystification to remain.

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? 

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. He 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.

Jarndyce v Jarndyce

I’ve thought that a good (and hilarious?) high-art musical joke would be to do a hip-hop track called ‘Jarndyce and Jarndyce’. It would take its name from the hereditary legal case that runs through Dickens’s Bleak House. Jarndyce v Jarndyce drags on for several generations, gradually consuming a large inheritance with legal costs. The same would be true for the hip-hop track. It would obviously be a huge hit, generating tens of thousands of pounds in royalties. None of these would ever be paid out, though. The track would be crammed full of samples, deliberately targeting some of the most litigious music catalogues. There would be some early Rolling Stones, a bit of the Stranglers, several samples from Marvin Gaye, and some of George Clinton’s work thrown in for good measure. The lyrics, too, would be stolen from a variety of sources, including hip-hop artists who have suffered their own legal misfortunes. The chorus would feature a number of interwoven melody lines, each taken from the most obvious of hits. None of this borrowing would be credited or cleared. ‘Jarndyce and Jarndyce’ would instead welcome claims of copyright infringement. More than this, it would want to set the various copyright owners in conflict with each other. The aim, ultimately, would be to create a track whose shares are so complicated they are never resolved. And while this conflict is in motion the song's royalties are consumed.