[this session included my own paper which I will post separately with slides]
Authorship and originality. Chair – Anahid Kassabian
Authorship in the age of Digital Reproduction. Anne Danielsen (University of Oslo, Norway)
[abstract] 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.
I’m working on some research at the moment that involves working out how common a particular bass drum pattern is – particularly in 1980s (or earlier) R&B and Hip-hop. So the question is – what songs do you know that feature this groove? Facebook or Tweet me with your answers, or fill in the ‘Other’ box in the poll below. As ever with these things, I can’t reveal more detail, but rest assured that your answers will be helping a songwriter.
This article originally appeared in Total Guitar magazine issue 219, October 2011. Reproduced by permission. Words: Joe Bennett. Illustration: Christian Ward. Click the image to download a pdf of the article.
Do you have a favourite song? Do you know why you like it? We all have favourite tracks, of course, but if someone asks us why we like a particular song – that is, the words, melody and chords – we find it difficult to give an answer. Often we’ll talk about where we were when we heard the track: going to school, falling in love, going on holiday, passing an exam or getting a new job. And tracks are great for evoking these memories. But tracks and songs are not the same thing.
It’s impossible to own the copyright on a lyric concept. An immeasurable number of songs have been written about the songwriter’s favourite subject – romantic love – so it’s to be expected that from time to time lyrics feature similar ideas or even specific phrases. So when a well-known play on words appears in a song title – and in the main chorus hook – and then someone copies the lyric almost verbatim, there’s a dilemma for the listener, and perhaps for the songwriter.
Today’s example is Britney Spears’ song ‘Hold It Against Me‘, as contrasted with the Bellamy Brothers’ 1979 hit ‘If I Said You Had a Beautiful Body (Would You Hold It Against Me)’. It is doubtful here whether a copyright has been infringed (as the lyrics are referencing a cheesy chat-up line which pre-dates both works) but I think you’ll agree that anyone familiar with the Bellamy Bros’ song would recognise it in the Britney one. This just goes to show that the ‘philosophical’ definition of musical plagiarism is not always the same as the legal one…
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.
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.
I’m doing some work at the moment as a forensic musicologist for a copyright dispute case. Here are a few of my favourite contentious song infringements – some that were disputed successfully (and shouldn’t have been), and some that were never disputed (and should have been!).
I Drove All Night (Steinberg/Kelly – recorded by Rob Orbison) – chorus melodic hook
There’s a Place (The Beatles) – end of verse melody
Beautiful Day (U2)
– 2nd chorus end melodic theme – descending perfect 5th over minor iii chord
The Sun Always Shines on TV (Harket/Furuholmen/Waaktaar-Savoy)
– Start of chorus melodic theme
Karma Police (Radiohead) – end of breakdown section; semitone drop in piano riff
Sexy Sadie (The Beatles) – identical piano riff
The Verve’s Bittersweet Symphony – main harmonic/string riff
The Andrew Oldham recording of The Last Time – a straight sample, but hardly 100% of the IP in the publishing. Remarkable gamesmanship by ABKCO.
Down Under (Men At Work) – intro flute riff, 2nd phrase
Kookaburra (Marion Sinclair / Larrikin) – an astonishing judgement at 60% of the publishing (given that it’s from an instrumental section, and is actually Aeolian as opposed to the original major pentatonic phrase), and particularly contentious as it raises the question of whether a secondary hook is part of the ‘song’ in publishing terms. Article about the case (Daily Telegraph)