I’m in Seattle at the New Music Ecosystem conference, organised by the University of Washington Law School. It’s a gathering of music and law professionals, discussing the future of creators’ compensation, tech/music innovation, and copyright reform. [Grammar folks – I’ve now been in the USA for long enough, and had Oxford commas inserted into my copy so many times, that I have decided to give in and just use them from hereon].
Today I attended two presentations at the DIY Musician Conference. The first one, which I’ll get to in a later post (because it’s kinda techy and will take time to write up) was an open DJ session with Ableton Live. The second, which I’ll briefly summarise here, is a one-hour overview of contracts for independent musicians, presented by my estimable colleague Tonya Butler, Assistant Chair of the Music Business department at Berklee.
ABSTRACT: When it comes to getting signed as a musician, a bad deal can be much worse than no deal at all. In this session, Tonya Butler, a top negotiator, will be providing vital information on key music contract clauses while walking the group through the key negotiation points of each clause.
This week, Lana Del Rey stated that she is being sued for copying Radiohead’s 1992 song Creep in her 2017 release, Get Free.
It’s true about the lawsuit. Although I know my song wasn’t inspired by Creep, Radiohead feel it was and want 100% of the publishing – I offered up to 40 over the last few months but they will only accept 100. Their lawyers have been relentless, so we will deal with it in court.
Both songs use the same chord sequence: | I | I | | III | III | | IV | IV | iv | iv |
Creep is in G major, so | G | G | B | B | C | C | Cm | Cm |
Get Free is in Bb major, so | Bb | Bb | D | D | Eb | Eb | Ebm | Ebm |
They are both mid-tempo (Creep is around 92 BPM; Get Free is around 102BPM).
They both have a similar rhythmic feel – straight 8s 4/4 time, in 8-bar sections (this is a similarity but an unremarkable one, given that it applies to a huge number of songs).
…and some history…
Creep is part-borrowed from Albert Hammond’s The Air That I Breathe (1972) – later a hit for The Hollies. According to The Guardian, Radiohead gave Hammond and his co-writer Mike Hazlewood a credit in the Pablo Honey album liner notes.
Here are the three songs in reverse order of release:
Paying the Piper: Constructing Narrative in the Contemporary Music Industries
ABSTRACT: 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.
Chris Anderton – Southampton Solent University (UK)
Just for the fun of it? Contemporary Strategies for Making, Distributing and Gifting Music
ABSTRACT: Technological developments in home recording and internet distribution mean that it is now easier than ever before for musicians both to create music and to distribute it to the public for a relatively minimal financial outlay. The traditional economic relations and structures of the recording and copyright industries may largely be bypassed through processes of disintermediation, and musicians have much greater control over their own recorded works than is typically afforded by the commercial recording companies. Many musicians have adopted alternative strategies for making their music available to the public, and it is one broad subset of these musicians that this paper will focus on. These musicians make their music available for free download/streaming through sites such as Bandcamp, Free Music Archive and the Internet Archive, or directly through their own websites. In some cases, the music is released through collective Netlabels and Creative Commons licences, while at other times, copyright is retained and the music is made available on a ‘name your price’ basis with no minimum amount specified. This article will use Jacques Attali’s notion of the ‘Age of Composition’ as a starting point for considering the strategies of these musicians and their relationships with traditional models of music making and distribution.
Chris opens with a description of the opportunities afforded in recent years to independent artists by internet-based distribution technologies. Our first example is Mery Ann (Spain), the artist name for Maria Aguilar, the co-owner of Zodiac Musick, a now-defunct netlabel that was in existence between 2003 and around 2015. Mery Ann’s work is retro 80s synth electronica [my reference points are vaguely Tangerine Dream and Georgio Moroder]. Chris reads an excerpt from the label’s radical mission statement:
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”?
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)
Friends, musicians and soundmen (and women) – lend me your ears. Here are some Wayfair TV commercials in a playlist – let me know (Twitter @joebennettmusic) what songs you think they’re using as a template for the music. Disclosure – this is for academic research, not copyright/client work.
[Health warning – these ads have a level of cheesy catchiness that may be difficult to cure once acquired.]
I Hate These Blurred Lines: Wrongful Appropriation and Copyrightability in Music Copyright
Academic/copyright post: here’s an abstract (pdf) of a paper that I’ll be presenting with Prof Wendy Gordon next week at Boston University Law School.
This is based in part on an earlier paper that we presented at the Art of Record Production Conference in Aalborg, Denmark in December 2016, a draft of which is embedded below with voiceover and music examples. As this is an academic paper about music copyright, it contains musical excerpts from the original audio recording. My first attempt to embed the video resulted in an automatic takedown (academic fair use YouTube dispute is in progress), so I’m trying again with a Screencast embed. Because the video represents commentary and (not for profit) academic research, I’m continuing to claim fair use. Let’s see how long the audio survives!
Abstract: We have two concerns with music infringement trials: The first concern is the process by which juries decide questions of whether a defendant copied too much from a plaintiff’s work. (This is the inquiry sometimes known as “wrongful appropriation” or “substantial similarity”.) This paper discusses the challenges of methodology in forensic musicology, and the musical and psychological difficulties of applying the ‘substantial similarity’ test fairly and objectively. (Bonadio, 2016; Gordon, 2015). We present an analysis of three disputes, with comparative audio examples – The Isley Brothers/Michael Bolton (2001); Robin Thicke & Pharrell Williams/Marvin Gaye (2015); and Randy California/Led Zeppelin (2016).
Our second concern addresses copyright classifications, in particular, the contested relationship between the creative decisions that give rise to copyrights in “musical works” (compositions) and the creative decisions that give rise to “sound recordings” (sounds as rendered). We suggest that overlap between the two is common and should be better recognized. To illustrate the potential compositional contributions of performers and sound engineers, we utilize audio examples from Newton v. Diamond and other disputes.
Peter begins with some caveats; he comments that the report deals particularly with the recording industry (and does not cover other music industries – e.g. live music and music education). Second, he notes the support from Kobalt Music, whom he notes are a very particular type of publisher, with a particular interest in digital and many very large-scale song catalogues in their portfolios.
As mentioned in a previous post, the question of whether Led Zeppelin’s Stairway To Heaven (1971) copies a part of Spirit’s Taurus (1968) may soon be settled.
Representatives of the late Randy Wolfe (aka Randy California) are claiming that the four-bar introduction section of Stairway To Heaven copies a substantial part of his 1968 instrumental composition Taurus.
Judge Gary Klausner stated that a jury should be used, because the matter in question is necessarily subjective: “while it is true that a descending chromatic four-chord progression is a common convention that abounds in the music industry, the similarities here transcend this core structure […] What remains is a subjective assessment of the ‘concept and feel’ of two works”.
So let’s compare the works – how similar are they?
In the next couple of days I’ll post proper transcriptions of the two with audio and some discussion points. For now, here’s an interview I did yesterday with BBC Radio 5 live, discussing the songs with presenters Sarah Brett and Ore Oduba.
I was interviewed this week by the UK’s Daily Telegraph newspaper about the alleged similarities between Sam Smith’s new James Bond movie theme song ‘Writing’s On The Wall’ and Michael Jackson’s Earth Song. This blog post is a more detailed version of that analysis.
[If you’re wondering why The Carpenters appear in the above playlist, all will be explained shortly].
Lots of people around the web have been pointing out that the end of WOTW’s verse makes them want to go straight into the chorus of MJ’s ‘Earth Song’, and on listening to the tracks it’s easy to hear what they mean. It’s interesting, though, that although the ‘feeling’ of the end of WOTW’s verse is reminiscent of Earth Song for some listeners, there are only actually three notes that have the exact same pitch – and these notes are not placed at the same point in the bar.
The songs are in different keys – Earth Song is in Ab minor and WOTW is in F minor. When comparing melodies, it’s helpful to ‘normalise’ this difference by notating both songs in the same key, so that any similarities or differences are more visually apparent. Here’s the comparative/normalised transcription.
So, if there are no notes that are exactly the same (in terms of pitch, rhythmic placement and harmonic context), why are so many listeners crying foul?
There are two areas of apparent similarity. The phrases in the penultimate bar of each song’s verse, highlighted in the red rectangle above, both have 8 syllables and have similar rhythmic scansion (and there’s no more use in runnin’ / did you ever stop to notice). But the section that everyone is talking about is the rising phrase ending on a B flat note (this is something I gotta face / this crying Earth this weeping shore?). These respective phrases, although they have only three pitches in common (with different rhythmic placement), give an impression of similarity because of the way the phrase ascends to the strong Bb note, with the same underlying dominant chord (in the normalised key of Abm, Eb major).
The songs also feature what we might call ‘surface similarities’ – that is, aspects of the arrangement or performance that appear in many other songs, but are combined in each work in the same way. They are both sung in the higher register of the male voice; they are performed at a similar tempo (Earth Song is around 6BPM and Writing’s On The Wall is around 65BPM). They are also both have a sweeping, epic quality and a lyric where the protagonist expresses some form of regret. There are of course many songs that feature these elements, but in combination they contribute to a subjective impression of similarity.
There is one other fragment of similarity, and interestingly listeners don’t seem to have picked this up to the same extent, despite the notes lining up exactly. WOTW’s chorus drops down dynamically at [01:28] and at this point the phrase ‘how do I breathe’ has the equivalent notes, syllable count and rhythmic scansion as bar 2 of Earth Song’s verse ‘what about rain’ [0:51 in the full length version]. The rhythms for this four-note section are identical, with identical pitches of Eb, Db, Cb and Db. The underlying chord on beat 3 is different, but the melodic similarity, for a brief moment, may be apparent to the listener. Here’s the relevant section, key-normalised as before.
But methodology is all in comparative music analysis, and it can be abused. If you look hard enough, and work with small enough fragments, you can find similarity everywhere. In the Spotify playlist above, listen to the strings intro in WOTW followed by the first verse of Superstar by the Carpenters. Three notes of G, F and C below, in an F minor tonality. Coincidence? Er, yes.
Music analysis can only highlight the similarities and differences; it’s impossible to see inside the mind of a songwriter, and any accusation of melodic plagiarism usually has to demonstrate quite a high level of similarity between the works. There are melody similarities between WoTW and ES but there are also many differences; these melodic fragments and production/arrangement choices will certainly have appeared in other songs. Which leads us to the really interesting question – if no musical elements are identical, but the combinations of elements are similar enough to invoke allusion to an earlier work, might we describe the act of combining those elements as creative? Can composing consist simply of bringing together pre-existing ideas? Might we characterise all creativity in this way? (Arthur Koestler thought so).
Were Sam Smith and Jimmy Napes influenced by Michael Jackson? Quite probably – many great pop songwriters are. Would they have been familiar with Earth Song? Almost certainly – it was a worldwide hit and remains a classic. But is this an example of deliberate plagiarism? I’m not so sure. It depends on what you mean by ‘original’.
And what you mean by ‘composing’.
And what you mean by ‘copying’.
Copyright note for transcription excerpts: I claim fair dealing exceptions for the purposes of research, criticism, review and news reporting.
I was recently invited to write a blog piece for ‘Harkive‘, a music/sociology data collection project run by Craig Hamilton at City University Birmingham. He conducts a survey for one day per year, collecting qualitative data about music listeners’ habits. The aim of Harkive is for people to “share the story of how, where and why they listen to music”. The blog entries are an attempt to add colour to the data, detailing the real-world situations in which we experience music. Here are some examples of previous entries. My contribution is a single ‘day in the life’ of music listening – in this case, my activities on 14th July 2015. I found the act of reflecting on a whole day’s listening (including inadvertent listening) to be a surprising experience – there’s a lot more music around us than I had ever really considered. If you’re interested in contributing to the project here’s the link.
This is a blog post about 5 bars of music. As reported in Rolling Stone and The Sun recently, the melodic similarity between Sam Smith’s 2014 song Stay With Me and Tom Petty’s I Won’t Back Down (1989) resulted in an amicable settlement between the writers and publishers sometime in 2014, resulting in Petty and Jeff Lynne, who originally wrote I Won’t Back Down, receiving a 12.5% share of the royalties. The PRS database in the UK confirms the share (members only access).
And subjectively, the songs are pretty similar, as bloggers had been pointing out since mid-2014.
But everyone was relaxed about the settlement, and Petty issued a statement to this effect:
About the Sam Smith thing. Let me say I have never had any hard feelings toward Sam. All my years of songwriting have shown me these things can happen. Most times you catch it before it gets out the studio door but in this case it got by. Sam’s people were very understanding of our predicament and we easily came to an agreement. The word lawsuit was never even said and was never my intention. And no more was to be said about it. How it got out to the press is beyond Sam or myself. Sam did the right thing and I have thought no more about this. A musical accident no more no less. In these times we live in this is hardly news. I wish Sam all the best for his ongoing career. Peace and love to all. (Petty, 2015)
Here’s the thing. Petty used the term ‘accident’, which one might interpret as meaning the copying of the melody was inadvertent. Sam Smith’s representatives claimed that the similarity was the result of a ‘coincidence’:
ABSTRACT: This paper examines some of the specific provisions in the US Copyright Law that hinder ascribing joint authorship (and therefore authors’ rights) and performance rights to all parties—performers, producers, songwriters, engineers—in contemporary popular music practices. Taking as its starting point studio practices that might be described as “composition-in-recording,” two areas of US copyright law are considered. The first concerns the particularly strong role of the “work for hire doctrine,” which in effect has the power to appropriate the creative output of individuals, as well as a specific provision in the definition of joint authorship—that the contributions of each author must be independently copyrightable for a work to be considered jointly authored. These two provisions, it is argued, disproportionately hinder broad attribution of authorship in music production. Second, the paper examines the uncomfortable tension between the idea/expression distinction that undergirds US copyright law on the one hand, and the composition/performance distinction that provides different legal rights to composers and performers of musical recordings. Here it is argued that “composition-in-recording” considerably problematizes the validity of assigning different rights to “composers” and “performers” (which is further problematized by the narrow, quotidian definition of what acts constitute studio “performance”). The paper concludes by suggesting some specific changes to the US Copyright Law that could better bring into alignment studio practice and a broader ascription of authorship, as well as some justifications within legal theory for doing so.
Tom’s presentation covers an area that is related to mine – that is, we’re both interested in the relationship between the creative process in popular music recording and the law that governs ownership. Copyright protects ‘expressions of an idea’ rather than an idea itself.
[with apologies to Martin for missing the start of his session]
From the late 1920s until the late 1980s the amount of records the BBC could play on its radio stations was severely limited by a system known as ‘needletime’. Officially this was an arrangement between the BBC and Phonographic Performance Limited (PPL), acting on behalf of the major record companies. However it was also subject to scrutiny and intense lobbying by the Musicians Union (MU) which was dedicated to restricting the amount of records played on the radio as part of its determined campaign to ‘keep music live’. Based on a series of previously unseen documents, this paper examines the history of the needletime agreements, their scope and the controversies which emerged between the contending parties. It suggests that an understanding of the needletime agreements sheds further light on the historically complex nature of the UK’s music industries and on the interactions between those representing music makers, music publishers and music users.
I’m en route to the UK & Ireland IASPM conference in Cork. I was at the International one in Spain last year – the branch and International IASPM conferences leapfrog each other every other year, so for 2014 we’re back in our respective countries. I’ve submitted an abstract for the 2015 conference in Sao Paulo, Brazil (about chord loops in the Eurovision Song Contest – regular readers will know this is an interest). Waiting to hear if it gets through peer review.
So here’s my abstract for the forthcoming conference. This is part of a panel about similar themes — other presenters are Holly Holmes (Chester), Dan McKinna (BIMM) and Marcus O’Dair (Middlesex).
As always I’ll live-blog from the conference where possible.
Where is creativity? Locating intellectual property in collaborative songwriting and production processes
(Joe Bennett, Bath Spa University)
Songs lie at the centre of popular music’s Intellectual Property framework. They represent the starting point for the industry’s two most important creative products: the live performance or the recorded audio artefact. In the early 20th century, US and European copyright conventions were established whereby two separate objects could be ‘owned’: the song and the sound recording, the latter being a derivative work of the former. This state of affairs, where ‘song’ and ‘track’ are separate copyrights, remains at the industry’s administrative core, and has led to awareness among creators of the economic benefits of ‘keeping a slice of the publishing’.
However, in real-world songwriting and production situations it is not always easy to ascertain who contributed to ‘writing the song’ and who acted as an arranger, performer or producer. Inferring creative contributions from the audio artefact itself is fraught with methodological challenges; from a listener’s point of view, there is no experiential distinction between song and track. Drawing on the theoretical work of Moore, McIntyre and Csikszentmihalyi2, together with interviews with professional songwriters and the author’s own experience as a songwriter and expert witness forensic musicologist, this paper argues that the artificial administrative distinction between ‘song’ and ‘track’ is simultaneously a constraint upon creators and a silent driver of creative practice itself.
2 Allan F Moore, Song Means : Analysing and Interpreting Recorded Popular Song (Ashgate, 2012); Phillip McIntyre, “The Domain of Songwriters: Towards Defining the Term ‘Song,’” Perfect Beat: The Pacific Journal of Research into Contemporary Music and Popular Culture 5, no. 3 (2001): 100–111; Mihaly Csikszentmihalyi, “Society, Culture, and Person: A Systems View of Creativity,” in The Nature of Creativity : Contemporary Psychological Perspectives, ed. Robert Sternberg (Cambridge University Press, 1988), 325– 339.