De-naturalizing Musical Authorship (Lionel Bently) #crasshc3 #copyright


Steve Norman, the Spandau Ballet sax player

Lionel Bently (University of Cambridge): De-naturalizing Musical Authorship
Determinations of who counts as an ‘author’ of a musical work has a number of legal consequences.  Most obviously, it governs who  count as the first owners of copyright, and thus who benefits from revenue streams associated with publishing/ recording (mechanicals) and performance (including broadcasting and streaming).  Secondly, it is relevant to the duration of copyright – the term of copyright in music and lyrics being calculated by reference (i.e. currently seventy years after) the death of the author (or in the case of co-authorship the last author to die). Third, being an author entitles a person to be named as such when a work is published or recordings are distributed: authors are granted what is known as the ‘moral right’ of attribution.
Copyright law has tended to assume that the legal concept of authorship maps onto a natural, flesh-and-blood, human beings. It thus is typically taken for granted that identifying who is an author for one purpose (say, ownership) necessarily operates to identify the author for other purposes (term, attribution).  In so doing, the dominant arena for determining authorship concerns ownership. Here the rules have developed rather restrictively, so as to exclude from the category of authors a perhaps surprising range of contributions (as seen most clearly in the Spandau Ballet case, Hadley v Kemp). But the effect of such an approach is not just to exclude contributors from counting as owners, but also from being entitled to attribution.
Certainly, one can see the logic in assuming that the word ‘author’ means the same thing in different parts of a statute, and indeed the convenience in so doing. However, if we consider the legal task of ascribing authorship as informed by matters of policy, the assumed unity or integrity of ‘authorship’ in copyright seems problematic.  The policy considerations that underpin restricting who counts as an author in the three domains – ownership, term and attribution – are very different. By exploring these policies in more detail, I want to suggest that copyright law could respond more flexibly to a diverse range of creative practices if it recognised that the legal concept of authorship is not ‘natural’. One consequence of so doing might at least to be to afford rights of attribution to a wider array of contributors than are currently accommodated by the moral right of attribution.

[JB comment]

I’m a big fan of Lionel’s work so was looking forward very much to this presentation. I particularly recommend the following paper, which covers some of this presentation’s content in more detail:

Bently, Lionel. “Authorship of Popular Music in UK Copyright Law.” Information, Communication & Society 12, no. 2 (March 2009): 179–204. doi:10.1080/13691180802459948.

[ends]

Lionel begins by stating that authorship is central to copyright. It defines:

  • The beneficiary of economic rights
  • The beneficiary of moral rights (the rights of attribution and the integrity of the work)
  • The term (life plus 70)

Authorship is assumed to be unitary. That is, an author identified for economic rights purposes is the same person for moral rights purposes. According to Coppinger Authorship is a question of status and fact, not agreement. First ownership of copyright vests in author. A ‘work of joint authorship’ is ‘not distinct from the contribution of the other author or authors’. In order to have a co-authorship claim you have to demonstrate that there has been collaboration, that the authors have contributed to the work, and that the contributions cannot be separated.

Lionel now cites Hadley v Kemp [1999] EMLR 589, wherein sax player Steve Norman argued that the [39s] sax solo was a significant contribution to the song ‘True’. The judge Justice Park tested the legal extent of ‘contribution’. The judge said that the sax solo was ‘a particularly attractive item’ but said that it is ‘in essence a fill, albeit a particularly felicitous one’. There are many ways to understand Hadley vs Kemp.

Romantic authorship. The judge appears to believe this, stating that ‘a composer can ‘hear’ the sound of his composition in his mind before he ever hears it played’. By this token Gary Kemp (the original songwriter of True) was the ‘romantic creative genius’. The case also raises issues of composition vs performance, peculiar facts (Kemp was allegedly a ‘control freak’ who ‘had the last word’). Finally Lionel concentrates on the influence of the musicologist, Guy Protheroe, on the judge’s verdict.

Lionel now speculates on the plausible possibilities of the creative process. Kemp was the initiator and main influence – on melody, chord structure, rhtyhm or groove, and song form. Few changes were made in the process leading up to the recording session. Park J said [my emphasis] ‘it would be surprising if a slight contribution was enough to make a person a joint author…’.

Childress v Taylor (Judge Newman) is now compared as a test case and with reference to the extent to which claims of joint authorship can be supported. There is a general tendency (in property law) to limit authorship – to agglomerate. So the concept of authorship is underpinned by particular policy concerns. Authorship might mean different things in different places within the regime.

We now discuss authorship and term – ‘life plus 70’ from the death of the last joint author. There are concerns that parties may manipulate authorship to increase the term (at cost to the public) – that an old author will ask a young co-author to contribute just to extend the copyright. Lionel finds a wonderful example from 1898 [gotta love long-term legal precedent] of O Sole Mio [the Cornetto song!]. Author Eduardo di Capua died in 1917. Later, poet and journalist Giovanni Capurro (who died in 1920) wrote the lyrics. However, in 1972 the estate of Emanuel Mazzuchi (d.1972) produced a document that suggested that Mazzuchi had contributed ideas to O Sole Mio. The litigation begins in 1972, and Mazzuchi wins. The copyright, which was going to lapse in the 1970s, was now extended until 2042. When a collection society was asked for the money the ownership was again contested in the courts. So from 2002 there were conflicting decisions between Rome and Turin courts. The conflict goes to the Italian supreme court. The result is that a song written in 1898 is in copyright until 2042! As Lionel points out, all parties involved are dead. No-one can oppose these posthumous claims by publishers and the estates. The real opponent here, he suggests, is the public, and this opportunistic behaviour is not in the public interest.

He now looks at policies underpinning attribution, citing Sawkins v Hyperion. Lionel supports de-naturalizing music, looking at three different types of authorship. He notes that there are problems with doing so – of complexity, presumptions of authorship, and ends by questioning whether this is worth doing? In the digital age we are seeing very different forms of musical contribution, and calls for disaggregation of rights in a musical work.

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