Authorship and originality. Chair – Anahid Kassabian
Authorship in the age of Digital Reproduction. Anne Danielsen (University of Oslo, Norway)
In the field of music, authorship traditionally resides in the musical work. In practice, this notion relies on the possibility of separating the performative aspects of music from the pre-composed. Authorship has thus been linked to the ‘frozen’ aspects of the musical process, to the structure that is left behind when the performance is over, either in the form of a notated score or a memorable melody. With the advent of recording techniques, the importance of the performance-related aspects came to the surface since in a recording also what were traditionally regarded as expressive means were fixed and thus possible to repeat. Previous to digital music production it was not possible to extract such performance-related aspects from the totality of the recorded sound. In the age of digital music production, however, this is different. In this paper I will discuss some examples of musical practice where the question of authorship is complicated, either because the creative contribution made by a specific author has not been acknowledged as part of the protected work, or because there are difficulties related to the very act of identifying wherein the authorship lies.
Here’s my abstract for this morning’s presentation. All the slides will be posted here soon, so for now here’s a link to a book chapter that sets today’s paper in context of the my research into the creative processes used by songwriters.
Joe Bennett (Bath Spa University, UK)
For a song to attract copyright it must be original. Songwriters therefore need to avoid plagiarism whilst working within the established constraints of song form. Any song that is too similar to another will breach its copyright; one that deviates too far from established norms may not survive the marketplace. Copyright law protects songwriters from accidental or flagrant plagiarism, but it can only protect musical elements that can be codified. Demers (2006) argues that this has led to a privileging of melody, lyric and harmony, offering these elements more protection than auditory artefacts such as timbre, production or arrangement. Industrially, ‘song’ and ‘track’ are economically separated but in creative practice – and in the ear of the listener – the distinction is not so easy to make. This paper will explore the difference between song originality as enshrined in case law and will contrast these with examples of homage/copying that have not been shown to infringe copyright. Drawing on the presenter’s own experience as an expert witness musicologist in copyright disputes, it will discuss the moral and legal ambiguity of the dividing line between ‘song’ and ‘track’ and what this means for songwriting’s creative development in the future.
Below are the slides (with playable YouTube examples) from a recent lecture I gave to BA Commercial Music at Bath Spa.
The songs we discussed in the session are;
- My Sweet Lord (George Harrison)/He’s So Fine (Ronnie Mack) – copyright case, 1971 and 1976
- Live While We’re Young (One Direction, 2013) and Should I Stay or Should I Go (The Clash, 1982) – subjective similarity
- History of the Black Night riff – a ‘copyright orphan’ excerpt, following its history from George Gershwin in 1935 to Deep Purple in 1970 (and, some argue, to P!nk’s So What many years later)
- Bitter Sweet Symphony (The Verve, 1997) and The Last Time (The Rolling Stones, 1965) AND The Last Time (the Andrew Loog Oldham Orchestra, 1966).
We also talked about other famous examples, including the Puff Daddy Every Breath You Take sample, after which the students asked lots of questions relating to their own creative practice (mainly, “but why can’t I sample other songs?!” and “but really, why?”).
I’m in the process of writing up these examples into a formal research paper, which will discuss the issues relating to the privileging of melody in copyright disputes, and will be presenting a conference paper about melodic similarity at the PopMAC conference 2013 in Liverpool. Abstract here.
If the embed below doesn’t work for you, here’s a link to the Google presentation.
Here’s a naughty songwriting steal from lawsuits past – Rod Stewart’s 1978 hit ‘Do You Think I’m Sexy?’ was proved to plagiarise the melody of Jorge Ben Jor’s 1972 hit ‘Taj Mahal’. Stewart agreed in settlement to pay all the royalties of the song to UNICEF.
The contentious melody excerpt can be found at 1:15 in the track. Thanks to the ever-musically-alert Richard J Parfitt for this – it was a new one on me.
Not all similar-sounding songs are copyright infringing – or are they? The new Alexandra Burke single ‘Start Without You’ has a chorus that is remarkably similar to the New Orleans/Creole Mardi Gras song ‘Iko Iko‘. The videos are below so you can judge for yourself (note the ‘Natasha’ 1980s cover is one of hundreds so is not the ‘definitive’ version – it was just the biggest UK hit version – personally I prefer the charm of the original 1960s Dixie Cups version).
The question is – why is this not an infringement? There are two reasons, I suggest. Firstly, despite the Dixie Cups successfully claiming authorship one could argue a case for the melody not being a copyright work – the DCs themselves mentioned in interview that their grandmother used to sing it to them (they were credited as composers in the absence of a prior composer being identified). Secondly, it uses musical ‘gestures’ from the melody rather than a significant number of identical notes. The chord pattern is identical, and the melody’s phrases often start on the same note and beat, but the actual notes, when compared like-for-like, are different. That said, if the Dixie Cups did want to contest this, I reckon Burke (…’s songwriters’ publishers’ lawyers) would have a hard time defending that melody…
Compare and contrast.
Lewis sued Parker for plagiarism on this one; they settled out of court and signed a confidentiality agreement (which Lewis broke in 2001, resulting in legal action by Parker). Listen for the E-D-A chord riff (the D and A chords being on beats 3 and 4 of the bar) that is characteristic of Ghostbusters and I Want a New Drug but also lots of other things, notably ‘Pop Musik’ by M (which in 1979 predated both tracks). Here’s the story of the 2001 legal action.
Anyway, here they are – judge for yourself.