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.
Anne’s work is of particular interest to me, because her research discusses ‘the work’ (that is, the song) and its relationship with the performance and recording. She acknowledges the problems involved in separating the ‘pre-composed’ aspects of a musical work from those aspects that are owned by the performer or others. She opens with a discussion of the various rights established in the Berne convention – Moral Rights and Economic Rights – and then speaks of the ‘related rights’ or ‘neighbouring rights’. There is, traditionally, a distinction between what should be played (defined by the composer) and how it should be played (defined by the performer). So when a musical score is present, the what is fixed and can therefore be codified and protected.
Anne describes aural traditions (presumably, folk musics) whereby in some cultures the what is ‘shareware’ and therefore not protected in copyright. For some such non-Western cultures the idea of ‘owning’ a composition is strange and alien. She defines melody, harmony and form as the primary spaces in which copyright subsists. When a recording becomes the fixed medium of communication (and repetition). But this means that some aspects (particularly a drum groove) cannot be easily protected in copyright. Clyde Stubblefield’s Funky Drummer is provided as an excellent example; in this work, there is negligible harmony or melody (apart from the C#9 one-chord riff) – the groove is the composition. This of course raises interesting questions about ownership, particularly in the context that Stubblefield is one of the world’s most sampled drummers. Anne deconstructs and notates the drum groove, and describes the groove itself as of negligible value (to samplists) compared to the way Stubblefield plays it, which, she argues, is what makes the drums so heavily used in subsequent works. (I would argue that there is an additional factor at play, which is the simple fact that the drums briefly play unaccompanied in the original Funky Drummer, making sampling easier in a practical sense).
Stubblefield famously seized control of this situation by recording his own sample CD, meaning that he could profit fairly from the ‘value’ that was inherent in his playing. Bringing us up to date, Anne discusses the way that the value of Stubblefield’s performance (that is, the unique subtleties of the groove/timing profile of his playing) can now be electronically extracted easily by workstations and all the sounds replaced.
Making the point that the Stubblefield case demonstrates a problem in identifying wherein authorship actually lies, Anne then plays us Chin Hippy by Squarepusher. He is a ‘granular samplist’ and manipulates sounds – and original sound sources – in the digital domain. Squarepusher’s processes, as the paper states, resemble those of electro-acoustic composers, and present similar programmes. Again, Anne asks the important question ‘where is the work?’ – is it in the digital manipulation of timbral parameters of a sound source, in the design of the workstation/software, in the original sample, or in the placement of the manipulated sounds in context? And what does this mean for related rights? The (recorded) performance is, in this context, a fixed composition. What does this mean for the law and the future? Anne deliberately leaves these questions hanging, but all questioners in the room agree that this is a problem that needs attention.
Music in the Postcolony: Song and ownership in South Africa – a case study. Christopher Ballantine (University of KwaZulu-Natal, South Africa)
In post-apartheid South Africa no less than in the era before 1994, intense contestations about entitlement and ownership continue to fester within the public sphere. Currently in the news is a bitter dispute about one of the country’s best-known and most frequently recorded songs. ‘Thula Baba’ is a simple lullaby. Two industry giants are at war over it: the record company Gallo, and the internationally successful musical Umoja. The point on which the legal battle turns is whether, as one of the heavyweights alleges, ‘Thula Baba’ is an old, neo-traditional song in the public domain, or whether, as the other claims, the song was actually composed just 50 years ago and then copyrighted. Though of course a dispute about vast royalties, at a deeper level this is a contest between South Africa’s time-honoured oral and communal musical tradition, sustained by the people who live it but who will derive no benefit from the quarrel, and a Johannesburg-based commercial songwriter who claims to have written the song and whose corporate affiliations have everything to gain. My paper will tease out some of the issues involved.
Chris’s paper focuses on a dispute over particular song ‘Thula Baba’ which is either a traditional song or was composed by Bertha Egnos (a white SA jazz pianist working in London before WWII).
The opponents are Gallo (a record company, representing the Egnos authorship side) and UMOJA (a touring/performance group, representing the traditional side). By contrast Joe Terron [sp?] (representing UMOJA) argues that the song is traditional and thus not subject to copyright. Thula Baba was released as a single (by Egnos) in 1963, and later appeared in a 1960s movie called Dingaka.
It was common at the time (and to some extent, still is) to claim authorial ownership of public domain items. The assertion of UMOJA is that Egnos’ claim to authorship is fraudulent. Chris (who was an expert witness in the case) cites two major obstacles to putting things right. Firstly, in order for a song to qualify for traditional authorship it must be untainted by subsequent cultural changes (e.g. 300 years of colonialism). He points out that such romantic ‘quasi-mystical’ criteria mean that such isolation probably never existed, and is certainly impossible to isolate and identify. He calls this the ‘cultural essentialism’ problem.
The second obstacle is ‘The Archive’, and Chris illustrates by looking at the audio from the court record. SA recording artists Abigail Khubeka was called to the stand to give evidence. UMOJA’s lawyers called her to give evidence that Thula Baba was in the public domain before 1963, making it impossible for the work to have been composed by Egnos. She testified that she knew Thula Baba as a child (she was, as a witness, in her 70s). She was cross-examined (quite aggressively) and was asked whether the version of Thula Baba she sung as a child was exactly the same, note for note, as the version of Thula Baba that was released. Subel (the lawyer for Gallo) tried to suggest that there had been some subsequent adaptation of the melody. He also points out that there was not a single recording of Thula Baba until 1963. Khubeka asserted (very strongly) that this lullaby was known to many people aurally and that they did not record it because rural black people did not have access to recording studios. She continues to take the position that the song was passed from old to young in each generation and was thus never recorded because it known to all.
Chris points out that what looms large in the exchange is the idea of an ‘archive’ – the Gallo side invokes the archive (that is, the extent to which the song was recorded). Gallo’s position is that because the work was not archived until 1963, it effectively did not exist [JB note – US law would call this ‘recorded in a fixed medium’]. Archives pretend to be neutral but in fact they are powerful in the definition, and (as here) subsequent assertion of copyright and ownership.
How do we overcome the obstacles, Chris asks? The first one is simply a case of ‘deconstructing the cultural essentialist argument’, and making the point that musical style should be subtracted from the study of The Work.
The second problem, he asserts, can only be protected by developing a ‘traditional’ archive and giving it legal power. There is a current (2013) SA governmental proposal in train for a Traditional Knowledge Bill. To qualify for protection, the piece of music must have originated within a traditional community, be seen in this way by members of that community, must have no identifiable author, and be fixed in a particular form. Registration of a song in such an archive would, importantly, enable the collection of royalties for these works, which would be paid back to the (usually poor) communities that generated them. He suggests that such a law represents remarkable progress, and a potential reward for those who represent this traditional music.
Questioning from the floor reveals some interesting possibilities, including a discussion of the timescale of the expiry of such rights, a comparison between this case and the making of postwar Native American recordings in the US, and the involvement of the World Intellectual Property Organisation (WIPO) in future developments.