Close to the Edge: investigating songwriting’s ‘plagiarism threshold’

Joe Bennett, Boston Conservatory at Berklee

[Presented at IASPM 2017, 26 June 2017]

Wicked.png

Stephen Schwartz’s score for ‘Wicked’ quotes 7 pitches from ‘Somewhere Over The Rainbow’… but does it infringe a copyright?

Here is the abstract, with references, for the academic paper I presented at the IASPM 2017 conference in Kassel, Germany. At the moment it’s just abstract, slides and references. If it ever turns into a full paper I’ll upload it to this website with the rest.

Abstract: The songwriter Stephen Schwartz once described his ‘Unlimited Theme’ (from ‘Wicked’) as a musical joke, using as it does the first seven pitches from ‘Over The Rainbow’.Schwartz believed that by limiting the number of copied pitches, he was evading an accusation of plagiarism. Schwartz’s belief in a legally defined plagiarism threshold represents a common misconception among musicians; there is a similarly widespread myth that copyright law permits a specific number of seconds of audio sampling (this has explicitly been contradicted in US case law). But borrowing and adaptation is a common form of creativity, and there is a real risk that if creators misidentify the line between influence and plagiarism, they might either inhibit their own creative freedoms, or inadvertently infringe copyright. This paper discusses the mythical plagiarism threshold, using examples from copyright case law, interviews with creators, and comparative analysis of musically similar works to explore the question “how much is too much”?

Download pdf of slides (or click image below)

Slides

References:

  • Bridgeport Music, Inc. v. Dimension Films, 383 F.3d 390 (6th Cir. 2004)’. Harvard Law Review 118 (4): 1355–62. doi:10.2307/4093384.
  • Cronin, Charles Patrick Desmond. 2017. ‘Seeing Is Believing: The Ongoing Significance of Symbolic Representations of Musical Works in Copyright Infringement Disputes’. Social Science Research Network. https://papers.ssrn.com/abstract=2967590.
  • Demers, Joanna. 2006. Steal This Music – How Intellectual Property Law Affects Musical Creativity. Athens : University of Georgia Press,.
  • Grand Upright Music, Ltd v. Warner Bros. Records Inc., 780 F. Supp. 182 (S.D.N.Y. 1991)
  • Schwartz, Stephen. 2004. Wicked’s Musical Themes Interview by Carol de Giere. http://www.musicalschwartz.com/wicked-musical-themes.htm.
  • Three Boys Music v. Michael Bolton 212 F.3d 477. 2000 477. 9th Cir.

 

Constructing Narrative in the Contemporary Music Industries

Kenny Barr (University of Glasgow, UK)

Paying the Piper: Constructing Narrative in the Contemporary Music Industries

gi.pngABSTRACT: In the 21st century the digitalisation of every facet of the production, dissemination and consumption of popular music presents an immensely complex set of challenges and opportunities to creators, investors and consumers. Encompassing a diverse range of disciplinary and methodological approaches, this panel identifies and engages with a number of key narratives relating to ways in which popular music creators are rewarded for their musical labour in the digital age and the wider ramifications for consumers and investors. Each paper interrogates and critiques distinct aspects of these unifying central themes. The first paper scrutinises the issue of fair remuneration of musical performers in the digital sphere and the efficacy of stakeholder responses and interventions. The next paper presents an empirical challenge to the dominant binary narratives found in many academic critiques of copyright as a means of rewarding popular music creators. The third paper argues that the erosion of collective licensing in the digital age has potentially negative ramifications for the availability and affordability of music to the consumer. The final paper explores the contentious issue of ‘value’ in the world of music streaming and argues that a new paradigm for ascribing and gauging value is required.

Kenny’s core research question: How do primary creators experience copyright in the contemporary music industry?

Research methods: narrative-based interviews, plus hard data via surveys, plus industry data. [Read more…]

Public Interest in Collective Licensing #iaspm2017

Richard Osborne, University of Middlesex (UK)

‘Where is the Public Interest in Collective Licensing?’

Queen Anne

Queen Anne. Not even the implementation of a groundbreaking copyright act during her reign could cheer her up.

ABSTRACT: In 1841, Lord Macaulay argued that copyright ‘produces all the effects which … mankind attributes to monopoly … to make articles scarce, to make them dear, and to make them bad’. Popular music has witnessed the reverse. The music industries’ most obvious monopolies are the collection societies. Collective licensing makes music abundant (blanket licence schemes, in particular, provide unfettered access to music) and it prices it democratically (all music costs the same). Collective licensing has shaped our musical environments. It is the reason why, in theory, any song can be broadcast or played in public premises. It is being weakened. Artists, labels and publishers are withdrawing from licensing schemes for streaming. Entrepreneurs are proposing blockchain systems that will do away with the need for collection societies. It is licensors and licensees who have dominated narratives about collective licensing. Questions of ‘public’ interest have been focused on how much businesses should pay and how much creators should receive. It is the argument of this paper that music consumers need to enter these debates. If collective licensing is eroded then music will become more expensive and scarce.

Richard’s favourite form of music, he says, is blanket licensing! He intends to advocate, today, for the needs of the public. Are [copyright] monopolies always inherently ‘evil’?

[Read more…]

Fair Internet for Performers Campaign #IASPM2017

Ananay Aguilar: University of Cambridge (UK)

‘Negotiating Change: the Fair Internet for Performers Campaign’

Graphic

The Fair Internet for Performers Campaign

ABSTRACT: My current four-year research project focuses on performers’ legal rights. The study responds to criticisms to copyright law for privileging Romantic ideals of classical music that pay excessive tribute to the author. To overcome this asymmetry, the research places performers’ rights at the centre of the discussion. Drawing on interviews with performing musicians and record industry and government representatives, I examine these rights from a wide perspective: I take into account 1) the history of these rights, 2) how performers make use of the law in everyday practice and through case law, 3) how the rights are managed, and 4) the processes involved in changing existing law. I have found a systematic under-privileging of performers in aesthetic and legal discourse and practice. This paper engages with the fourth point by examining the Fair Internet for Performers Campaign advanced by the Musicians’ Union with international support from AEPO-ARTIS and FIA. By mapping the stakeholders in this debate and their differing strategies and proposals, I assess the timeframe and chances of this campaign to lead to positive change for performers. I argue that, ultimately, this battle is one of successfully harnessing and directing public opinion by persuasively narrating popular music: the major labels’ greatest strength.

Ananay’s project is situated, historically, almost 100 years after the origin of copyright in sound recordings. The research has four elements: origins, use, management and reform, and today’s presentation covers the last one – reform. [Read more…]

Academic conference questions – translated

conf.jpgSo farewell, Kassell, as day 5 of the IASPM2017 conference winds down. Our German hosts have been fantastic, and the overall atmosphere has been, as ever, one of courteous collegiality and mutual academic admiration. Almost all of the questions from the floor have been in the spirit of inquiry, peer support and knowledge sharing.

Almost.

Below, as a public service, I’ve provided a list of some of the more ‘problematic’ questions that we hear from time to time at academic music conferences, with translation.

Thank you for a great presentation…
I’d like to tell you about my work.

Less of a question, more of a point, really…
I’d like to tell you about my work.

Have you read…?
I’m going to cite an out-of-print book you’ve never heard of and watch you squirm politely.

What’s the relationship of your work to [e.g.] the Andean nose-flute?
I’ve written a book about the Andean nose-flute.

One of the things that seems, to me, to be the case, based on the way you set up the inherent affordances available to the agents of this paradigm, is that, how can I really say this, well, there’s a difference between… well, more of a dichotomy… between the primary sources as they state their position phenomenologically, and the secondary sources, filtered as they inevitably are through the lens of scholarship and the attendant limitations of the contemporaneous evidence base available, although I have to say you do a great job of pulling those sources together given the inherent paucity of reportage from the primary participants, which I suppose is an inevitability due to the kind of retrospective material we’re dealing with here, and we all would support, as I’m sure everyone here agrees, the requirement to preserve the authenticity of that, even if the researcher is sometimes pressured by the field into creating taxonomies not necessarily intended for academic consumption by the original practitioners being studied, and that’s important, but only important inasmuch as the research community needs to define it for this particular sub-field, given that there are so many other sub-fields within which different taxonomies have been established; what’s your view?
It’s time for the coffee break and I’m the only one in the room who doesn’t want coffee.

How does the tabor syncopation example you played relate to Bourdieu’s concept of cultural capital?
You musicologists know nothing about society.

In terms of the geopolitics you mention, what is the effect of the Dorian pivot-note key change halfway through bar 23?
You sociologists know nothing about music.

The Politics of Digitizing Analogueness #iaspm2017

Pat O’Grady
: Macquarie University

The Politics of Digitizing Analogueness

Plugins

Plug-in hardware emulation – are looks as important as sound to the user?

ABSTRACT: In the field of pop music production, audio companies such as Waves and Universal Audio claim to reproduce the sound of ‘vintage’ analogue signal processing recording technologies. They use software to emulate the form and sound of technologies that, in their hardware form, became highly valued parts of recording studios from the 1960s and 1970s. These digital technologies are marketed towards the increasingly capable and more affordable personal computer market, often used in home studios. The companies claim to provide the user with the comparable results to analogue. Since the 1980s, similar changes to the recording technology landscape have been understood as ‘democratization,’ as music production trended towards a digital economy. However, these emulations also exist alongside a reemergence of the use of analogue technologies in music production, particularly in large studios. In this paper, I explore how the popularity of digital emulations can be partly attributed to shifting attitudes towards analogue vintage technologies. I draw from an analysis of industrial discourses within music production in order to show that rather than democratize the field of music production, they reinforce the social order of the field of recording. In doing so, they continue to promote within a discursive space the importance of large studio music production.

Pat begins by leading us quickly through the development of the technologies that led us here, through the rise of digital recording in the 80s, the rise of the workstation in the 90s and the plugin in the 2000s and beyond. We are now, he suggests, in the ‘Analogue Comeback’ era, and he cites both analogue hardware and UAD emulation plugins in some Australian professional studios’ advertising. He notes that due to the four-decade establishment of digital recording, there now exist professional studio practitioners who did not grow up with analogue equipment. [Read more…]

Binaurality and stereophony in 60s/70s pop #iaspm2017

Franco Fabbri: Conservatorio di Parma, Università di Milano (Italy)

Binaurality, stereophony, and popular music in the 1960s and 1970s

Mixing desk

In the early days of stereo recording, engineers would often mix without headphones, even if the final mix was intended for binaural listening.

ABSTRACT: Stereophonic headphones were first marketed in the USA in 1958. Binaural listening (via headphones) became one of the favourite ways for fans to listen to rock albums in the late 1960s and early 1970s. Stereophonic mixes, however, were not necessarily designed for binaural listening. Sound engineers rarely used headphones, and generally preferred to mix without wearing them, with some explaining that they couldn’t get a proper balance if they didn’t listen to the studio monitors. Often they would listen to the result of a mix with cheap shelf loudspeakers, or even car loudspeakers, claiming that those would be the most common sound sources used by the audience; strangely enough, headphones were not used for this purpose in the studio. While the association and historical overlap of stereophonic mixes, advances in studio technology and consumer audio, and the rise of psychedelia and progressive rock have been commented (more in accounts on or by individual artists/bands/producers than in general terms) the issues of binaurality, of stereophony, and of their relations with popular music has seldom been explored. The paper will focus on the musicological aspects of binaurality and stereophony, both at poiesic and aesthesic levels.

Franco opens with a history of the study of binaurality, leading us to the development of stereo audio in the 50s/60s, which provided two [and this is key to what follows] separate channels. He makes the point about the difference between binaural listening on headphones (which separates the signals completely) and binaural listening (which includes phase/delay between the signals). In the earliest experiments in binaurality, headphones were used first – and listeners considered headphones more ‘realistic’ than speaker-based stereo. Headphones were also not an option in the early days of cinema (he cites Disney’s Fantasia as one of the earliest movies with 2 channel sound)… because of the social aspect. Franco illustrates “it was difficult to kiss your loved one in the cinema wearing headphones”! [Read more…]

Technological tactility in mixing #iaspm2017

Brendan Anthony: Queensland Conservatorium (Australia)

Talking tactility: Technology’s influence on ‘feel’ in popular music mixing.

SSL

What does ‘tactile mixing’ mean when everything is digital?

ABSTRACT: One of the final creative stages in the popular music production process is mixing, and often creative brilliance not technical prowess is responsible for mix popularity. The arrival of digital technologies has affected a rapid change in mixing techniques and perhaps the subsequent overuse of various forms of technology can dominate and distract the mixers’ connection to creativity. In this instance technology should be an extension of consciousness, because mixing is a form of synesthesia and mixers should attempt to connect to creativity and emotion through their mix system. This author theorizes mixers can connect to the emotive paradigm of music via a personalized system designed around a preference of tactility and a sense of ‘feel’ when mixing. Therefore, this paper uses a qualitative comparative investigation into the popular music mixing process. This exploratory experiment involved five participants, who mixed two songs each, with varying forms of technology and tactility. The participants completed a questionnaire after the experiment so comparative data regarding the mixing experience was collected. Mix results were analyzed by the author and a thematic analysis supported by professional research completed the study.

[ABSTRACT ONLY – with apologies to Brendan for arriving late – the last few minutes that I saw sparked a fascinating discussion in the room].