[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.
First 8 pitches. Lana is in Bbm. Nino is in Gm. Otherwise the same, at least in pitch terms. Could be cryptomnesia. Thanks to the eagle-eared Simon Troup of Digital Music Art for finding this one.
Stairway to Heaven famously uses a chromatically descending A minor chord pattern, but was it too similar to Spirit’s 1968 instrumental ‘Taurus’?
I appeared on Voice Of Russia radio this week (the Brendan Cole show), talking about the Stairway to Heaven/Taurus allegations of plagiarism. It was a long and wide-ranging panel discussion, also covering Oasis, Deep Purple, Coldplay, Gershwin and others. The panelists were:
Johnny Sharp, music writer for Mojo and Q magazine,
Andy Millmore, head of Litigation at Harbottle & Lewis, and has acted for music companies, book publishers, as well as other clients.
Joe Bennett, dean of the School of Music and the Performing Arts at Bath Spa University and head of the annual UK Songwriting Festival.
Below are some quotations from the full 30-minute discussion. The podcast can be downloaded here (28MB) or press play below to hear it in your browser.
——–
JB: “The whole issue basically hinges around a four-bar piece of music played using a descending minor chord pattern…
“Yes, I believe he [Jimmy Page] copied it. […] It’s a riff he had access to, it’s a riff he heard recently and it’s not the kind of thing that would be terribly similar through coincidence. The issue is whether the thing being copied was in fact owned by Randy California in the first place. Can you copyright a minor descending chromatically in half bars?”
AM: “Actually, I’m not sure that I completely agree with the way Joe has characterised the question here because I think it’s pretty clear that any musical work, any literal work which it’s a fairly low threshold of originality does belong as a matter of copyright to whoever created it. If it is entirely commonplace and standard and gone before then there’s nothing knew and original. But once you hit that low threshold you’re the copyright owner in that work…
“And then the two questions become – one is, was there as a matter of fact copying? From what we know of the evidence in this case is suggestive of the fact that there could have been copying or maybe subconscious copying – a concept that was recognised in the George Harrison ‘My Sweet Lord’ case where it was found that Harrison didn’t know that he was copying but nonetheless he was subconsciously…
“So let’s assume that Randy California gets them on that, and then the question is – is it a substantial copy? And that’s the legal test – is there a substantial reproduction here? And then you start getting into quality questions about what has been taken, what has been saved and what’s been reproduced.
“This is actually a very difficult question… I think the original could well be owned by Randy California notwithstanding that is a descending minor chord pattern because it’s the particular minor chord pattern in which his copyright subsists. Has that substantially been taken by somebody else?”
CF: “With the Led Zeppelin example, to me it sounds way too similar to be regarded as just gaining inspiration. The Randy California version actually sounds like a Led Zeppelin song played wrong and I know it’s Jimmy Page that’s supposed to have copied it – I think the line should be drawn where getting inspiration is a theme or a feeling, but when you actually take the riff of the song I think that should be regarded as plagiarism.”
JS: “The only people that have really been open about it [plagiarism] is someone like Noel Gallagher – he’s always been like ‘oh I like that’, ‘I love that’… And he got nailed for it for a song which was left off their second album, which was very similar to ‘Uptight’ by Stevie Wonder. It was originally included on ‘What’s The Story Morning Glory’ and had to be taken out…”
“…There are not a lot of musicians who do it. It’s incredibly common for musicians to be accused it [plagiarism].
“You look at any Amazon review of an album and someone will say – ‘I can’t believe that they get away with this track, it must be obvious to anyone with ears that this is a complete rip-off!’ Everyone thinks they hear echoes of another track… And a lot of the time musicians hear that.”
“A few years ago Joe Satriani – the rock guitarist, had sued Coldplay because he claimed that they had taken a little snippet of melody from one of his endless self-indulgent guitar noodles. You listen to it and really it was like ‘mate, you’re dreaming.’
“This is a man who like a lot of musicians has a very large ego and believes he doesn’t get the credit he deserves. He sees a band like Coldplay who get a certain amount of critical acclaim, although not everywhere, But Satriani obviously looked at that and thought – ‘I see my influence everywhere, they’re all ripping me off!’ It’s amore in his head that reality.”
“In regards to Led Zeppelin doing this – if hadn’t been Jimmy Page I might have been prepared to say – well yeah, it’s just a minor chord pattern. It’s not an uncommon pattern of chords – the descending pattern of chords, and even the fingerpicking – the sort of 1-2-3-4 is hardly uncommon in the folk tradition. The fact is, Jimmy Page has form – a lot of form, when it comes appropriating other people’s work. Now whether that would count in the court of law is highly debatable, no doubt.”
JB: “Well coincidences can take place and in the case of the Joe Satriani track I think that idea starting on a minor ninth chord with the melody and then over the C chord – that was the melodic fragment he was picking up on. My personal view is that it is not beyond the realm of coincidence that two composers separately could come up with what is a relatively simple harmonic and melodic idea over two phrases.
“The challenge with this kind of issue, and particularly the Randy California issue, is that everybody hears music subjectively.”
“When a listener hears a piece of music they’re listening to quite a lot of information going into their brain, not just the thing musicologists write about typically – melody, harmonic context, i.e. the underlying chords and that which could be notated, but they’re also hearing the production, they’re hearing the instrumentation.
“So for example, had I played you the Randy California track using a brass band arrangement, it would be technically the same composition and the same piece of intellectual property in terms of music publishing, but it would sound completely different because it would be played by a brass band.. So, the reason that a lot of people hear similarities can be influenced by something as simple as instrumentation, and because I’m sitting here with an acoustic guitar and have played both examples on the same acoustic guitar back to back, that rather enhances their similarity as composition in terms of listener perception.”
CF: “The Beatles in particular came up with very-very original songs for their time and had a very unique sound. While they might borrow ideas and get influence from rock and roll and other stuff that was around at that time, they definitely put their own stamp on it. I don’t think that you could regard what they did as plagiarising, but it was taking influence and producing original music.”
JB: “A lot of my academic research is investigating the psychology of the creative process – exactly how do people come up with melodies? There’s a lot of romantic mystery attached to it in the mainstream media and of course songwriters maybe have a bit of a vested interest in mythologizing the process in that way.”
“Every creator of music has heard previous music and is creating new material in that context. So when I interview songwriters they tell me that it happens all the time that they accidently, inadvertently or even deliberately compose fragments for their own song that they’ve taken from other songs… But normally that’s avoidance of plagiarism – a normal part of the creative process. You just go – oh that sounds a bit similar, I’ll tweak it until it doesn’t.”
AM: “The issue that we come across again and again is the dichotomy between an idea and the form of expression of an idea… And you see that in all forms of copyright works, it’s not just music.
“But at what point is what has been taken – the inspiration, as against down at a level where it’s the particular way in which that idea is expressed. It’s a real problem for the courts to grapple with any particular case and therefore it’s a real problem for artists and music companies when they’re looking at issues like this…”
“I think the answer ‘I wasn’t aware’ is probably not a defence… A court can find that you were copying and reproducing and that’s the test – were you as a matter of fact copying without intending to, maybe even without realising?
“The answer seems to be yes you can. You’ve got to have pretty compelling evidence to show that that particular track was around so much and you’d heard it so often that it was somewhere there in the back of your mind that you’d be regurgitating it without even realising…”
JS: “When you combine a musical pattern and also a lyric which quite often Led Zeppelin have done then that’s when you haven’t really got too much of an argument. Again it was something that Noel Gallagher has done several times – the song ‘Whatever’ goes ‘I’m free to do whatever I want’ and Neil Innes of the Bonzo Dog Doo-Dah Band said that he [Neil] basically stole that from ‘I’m free to be an idiot’. As far as I know Neil Innes now has a credit on that one, along with the other ones that Noel Gallagher has given credits away to. If Neil Gallagher was going to steal the melody, he might have gotten away with it, but to actually steal the first two words? Then you’re in trouble.”
CF: “Most times when you come up with a song that you actually want to borrow a part of then you approach their publisher and ask permission to do so. I’ve done that before in bands that I’ve been in – we did a cover of Mr Sandman which is obviously a very old classic song. We approached the publishers and they approached the writers and they gave us permission to use it.”
“…We basically did a cover of the entire song but did it in a very different way to the original. The original is all very happy-clappy and we were doing a darker version of it. So we sent them a recording and they wrote back and said – yeah, you’ve got permission to use it… And they would get a percentage of royalties from it.”
AM: “It’s an expensive thing to do as a claimant and it’s an expensive thing to defend as a defendant. And I hate to say it, being a lawyer, but it is one of the areas where typically the people who really succeed are the lawyers and therefore it lends itself to early resolution.”
JB: “It’s all in the ear of the listener isn’t it? It’s dependent on the way people receive it – to some people things will sound very similar, to other people not.”
Discussion of the originality spectrum – is ‘newness’ defined by non-plagiarism from the Domain?
Joe Bennett (Bath Spa University): Who Writes the Songs? Creative Practice and Intellectual Property in Popular Music’s Digital Production Chain
In music, two objects can be owned – the composition (sometimes including a lyric as a ‘literary work’), and the sound recording. The separation of song and recording is the basis on which the music industry distributes monies, but equitable IP distribution becomes more difficult when creative individuals’ contributions (of melody, lyric, arrangement, performance or production) overlap or are non-‐linearly created. In the 1960s it became increasingly common for performers to write their own songs; from the 1980s, democratisation of recording technologies gave songwriters and performers the opportunity to self-‐produce; and by the early 21st century most digital home studios had more production power than the world’s leading studios had enjoyed only 30 years earlier. 1 These changes in creative context mean that songwriters no longer need to notate their work as they did in the early 20th century; production, lyric, melodic, arrangement and performance elements can be created, edited and adapted at any stage of the creative process. Non-‐linear creative practice in song production has implications for ownership and copyright that may challenge the historical privileging of melody & lyric in popular music’s legal hierarchy. 2 This paper will provide examples of creative practice, and discuss the legal, musicological and ethical questions that 21st century song production presents for the music industry and for future music creators.
Mark Summers (Sheffield University): Human-Machine Creative Collaboration and Copyright: performing with improvisation-driven music systems
Copyright can be problematic in areas unforeseen by legislators. One such area is that of interactive music systems which combine an improvising instrumentalist with live electronics to create a collaborative performance. The capabilities of such systems are as varied as the number of systems that have been created. These range in a continuum from the instrument paradigm, where an acoustic instrument is extended electronically (for example, MIT’s Hyperinstruments), to the player paradigm, where the system provides an improvising partner that feeds off the instrumental improvisation but is independent of it (Lewis’s Voyager or IRCAM’s OMax).
This paper will discuss these systems and their performance, raising questions about works (in the improvised input, in the output of the system, the mixed output of system and improviser or even in the system itself?) and authorship (is the improviser performing or creating, is the creator of the system the author of its output, are the creator and improviser co-authors of the mixed output?). In the light of these questions and based on legislation and case law, suggestions will be made as to where copyright may subsist and who might own it.
Martin Scherzinger (New York University): Authors or Commons? Neither, but Both!
A choreographed Beyoncé video is the creation of ‘thousands’ of individuals’ creative ideas, but only a small subset of creators are rewarded through economic rights.
The reach of private property rights, it seems, is widening. Over the last two decades, scholars in a variety of disciplines have tackled the impact of IP law on practices of politics, science, economics, law and culture. Not only has IP been extended to new information objects (from databases and software designs to biological seed lines, bacteria, genetically engineered life forms and DNA sequences), but the lengths of time for which protection is granted have been substantially extended for nearly all objects. At the same time, we witness today an outpouring of academic and popular scholarship in critical response to the widening reach of the IP concept. Like an evil twin, the progressive IP and cyberlaw scholarship calls for an expansion of the commons, emphasizes the productive delinking of cultural practice from cultural policy, and offers countervailing forces to the enclosure of the commons. Instead of identifying the expanding commons as inherently progressive, this paper argues that the peculiar co-mingling of the commons with its privatized antithesis productively underwrites new networks of exchange value. It is the opportunistic conceptual mélange between private property and public domain – whereby one side of the conceptual pole readily supplements (as alibi) for the other – that prevents the proper functioning of either conceptual principle in practice. Not property alone, but the very opposition between property and commons becomes the bastard concept for power. The paper describes contemporary cases of proprietary interests vested in anti-property as a paradoxical capitalist expansion of the laboring commons.
It seems that property rights are expanding in many domains. The ‘length of term’ is expanding, sometimes as much as 120 years. Legal literature tends to follow it with ‘like an evil twin its own shadowly branch of inverted morality’.
Has copyright become delinked from its original mandate?
Have excesses of (over) protection undermined some laws (e.g. patents of amino acids undermining innovation and research)?
Three types of IP ‘enclosure’:
Property/land rights (18th and 19thC)
Cultural commons enclosure – now becoming proprietary
Future planning – copyrights protecting affecting as-yet-unachieved innovation. A ‘pre-emptive strike on the future’
In music we have pre-emptive constraints (e.g. DRM – constraints on on pausing, syncing etc) which undermines other laws that allow legitimate copying. Martin argues that the swing has gone too far towards protectiveness. He contrasts Lessig style arguments with less permissive, legally-supported ones.
Mismatch between anthropological reality and human behaviour. Informal ‘habitae’ are not implied by the law – free software being an example. There is a social network that is out of sync with the property laws that guard them. When people are at odds with the law and don’t care, we have a mismatch that needs to be resolved. Music is at the vanguard of developments – the MP3 effect was an early example of the genie leaving the bottle, generating mass criminality in the context of current laws. Three quarters of global information consumption is arguably ‘outside the law’. The ‘author is dead’ argument is very powerful – intertextuality is an ontological axiom of art. “Any time you do anything [in the arts], you cannot not break the law”. The cautious and comprised artist who ‘checks with the lawyers first’ arguably distorts the creative process, placing a constraint on communication.
The logic of ‘likeness’ is no longer the argument. However mashed up or adapted a sample may be, if it can be traced back to the source it is considered plagiarism. Transformativeness is paradoxical when viewed through the lens of law. Thresholds of similarity don’t line up with artistic practice, especially in self-derivative artforms (Martin cites Nickelback’s songs This is How You Remind Me and Someday which are in some respects the same song.
Copyright distorts the creative process because different types of copying have different costs. The author is irreducibly put into pastiche but must achieve originality. A fully postmodern approach would lead to the development of a ‘generalised commons’. An author without the author and a commons without a commons devolves both parties’ independent powers. Powerful stakeholders often assert their influence by embracing both sides of the author/commons dichotomy. A Beyoncé video is essentially a ‘collaboration of thousands’.
While Beyoncé is the pop star, Gatson is quick to give credit to all of the dancers in the clip, including some that the team enlisted from Africa. “We say, ‘Share the light, you sparkle brighter,’ and we share our light with a lot of new, creative people…
Limelight is the reward rather than ‘true’ authorship. If we were serious about rewarding authorship we would find a mechanism to reward and acknowledge them. Only a small subset of creators is compensated. Disney – Grimm bros and Rudyard Kipling turned into unique IP.
Martin now turns to the ‘false romance of the commons’. Gold becomes iron – everything has its roots in Africa (so the romance of authenticity argument goes). It is perilous to mix the global public domain and the cultural concept of the innovative author. Billions of dollars of IP fees are paid from the ‘global south’ to the ‘global north’ (the latter owning more IP in many fields). The benefits and joys of access are geographically differential. Internet penetration is around 1% in Africa. Differentian access, differential constitution, asymmetric copyright.
The Bluebells – co-writers with Bobby Valentino, say the courts
Ananay Aguilar (University of Cambridge): The Value of Performance in Law: Performers’ Rights and Creativity
British copyright law has been criticised for privileging musical elements and practices that have been important in the conceptualisation of classical music, above those which have developed independently of that tradition. This conceptualisation has been associated with classical music’s aesthetic concept of the artwork: both law and the artwork treat composition as the culmination of creative genius, while performance is attributed little or no creative status. This asymmetry is further complicated by the domination of capital over labour in the protection of sound recordings, as copyright law vests authorship in the company that bears the costs of making and issuing the recording: performers are denied authorship over the record of their own performance. While the 1988 Copyright, Designs, and Patents Act introduced rights in performance, the depth and breadth of legal protection for performance-based musical practices, like most popular musics, remain limited. To overcome this asymmetry, commentators have focussed on how the concept of authorship might be extended to embrace collaborative practices that fall outside of the practices of classical music. My current project explores an alternative approach that places performers’ rights at the centre of the discussion. In this presentation I will attend to relevant case law to outline two main issues: firstly, the separation of creativity between composition and performance implied by these rights and, secondly, their relation to recent technological developments.
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.
Bernd Justin Jütte (University of Luxemboug): The EU’s Trouble with Mashups -‐ From Disabling to Enabling a Digital Art Form
New tools for editing of digital images, music and films have opened up new possibilities to enable wider circles of society to engage in ’artistic’ activities of different qualities. User generated content (UGC), a term that already transmits a notion of amateur artists, has produced a plethora of new forms of artistic expression. One type of UGC are mashups, which are compositions that combine existing works (often) protected by copyright, and transform them into new original creations.
The European legislative framework has not yet reacted to the copyright problems provoked by mashups. Whereas the flexible US fair use doctrine has ac-‐ commodated mashups rather easily, the strict corset of limitations and exceptions in Art 5 (2)-‐(3) of the InfoSoc Directive does not leave any, or only very little, room for this innovative and widely popular form of artistic expression for commercial or non-commercial purposes. The paper analyzes the current European legal framework and identifies its insufficiencies with regard to enabling a legal mashup culture. By comparison with the US approach, an attempt is made to suggest solutions for the European legislator, based on the policy proposals of the EU Commission’s “Digital Agenda” and more recent policy documents (e.g. “On Content in the Digital Market”, “Licenses for Europe”). In this context a dis-‐ tinction is made between non-‐commercial mashup artists and the emerging commercial mashup scene.
Frédéric Döhl (Freie Universität Berlin): @MusicHistoryLaw
A Question of Context and Aura. About Copyright Law’s Reaction to Digital Composing with Second Hand Sounds – with Special Regard to Mashup
Particularly due to widely acknowledged, theorized, and studied technological (pc, sam- plers, internet) and aesthetical (postmodernism, retromania) changes, the use of well- established practices of employing a musical reference has grown exponentially across the board from avant-garde music and jazz to all kinds of popular music genres during the last four decades. But has the massive quantitative change mutated in any respect to a qualitative change, too, bringing anything new to the wide and old field of musicalborrowing (Burkholder, 1994; Schneider, 2004) with regard to both the production pro- cedures and/or the reception and evaluation of these kinds of music?
Keith Negus / John Street / Adam Behr: Digitisation and the Politics of Copying in Popular Music Culture Musicians are at the forefront of discussions around revenue loss in the music industry, yet often neglected in existing studies which usually focus on corporate perspectives or audience activities. Drawing on extensive interviews with musicians operating in different genres – and at different points in their careers – within the broad field of popular music this paper presents initial observations from an investigation of how the notion of ‘original’ ideas and rights of access (and hence copyright) are negotiated by practicing musicians. How do they regard duplicating without permission in order to circulate free copies or bootlegs? How do they see the practice of appropriating, reusing, sampling and imitating? How does this relate to the existing legal and policy framework?
Here’s the new Paloma Faith single, ‘Can’t Rely On You’. It has been suggested that it may be similar to Franz Ferdinand’s 2004 single ‘Take Me Out’.
In January this year Alex Kapranos tweeted “Hey @Pharrell – I love your tunes. If you want to borrow a riff, just ask…”
Let’s take a look at the notes.
‘Take Me Out’ – the main riff in the original key of E minor.‘Can’t Rely On You’ in its original key of B minor.Here’s the ‘Can’t Rely On You’ riff transposed into the same key as ‘Take Me Out’ for easier/fairer comparison.Both riffs aligned note for note. The transcription of ‘Can’t Rely On You’ has been transposed into the key of E minor for easier comparison.
They look and sound similar – but does this mean that Pharrell has copied Kapranos’s riff? Let’s look at the objective facts.
Take Me Out is seven note events (G E E D B D E). These appear on the 3rd, 5th, 7th, 8th, 9th, 11th and 13th semiquavers of the bar of 4/4.
Can’t Rely On You uses all of the same pitches and all but one of the rhythmic placements (the second ‘D’ is played one semiquaver earlier).
Can’t Rely On You adds three extra notes (E, E and D, on the 11th, 15th and 16th semiquavers of the bar).
Both riffs occur in the same harmonic context – that is, over the home minor key ‘i’ chord.
Discussion
They are both simple minor pentatonic riffs, so anyone composing this ‘type’ of riff would be using the same 5-note palette from which to choose pitches.
But the similarity is certainly striking. Can’t Rely On You copies some very specific and arguably (in combination) unusual characteristics of the ‘Take Me Out’ riff, including starting on beat 2 on the minor third, identical pitches for the first seven notes, a distinctive rhythmic pattern (a rest, 2 quavers, 2 semiquavers, after which there is a slight rhythmic deviation). And ‘Take Me Out’ is a very well-known song so it is extremely unlikely that Pharrell/Faith did not recognise the similarity.
So is it possible that two composers could have made the same note choices independently of each other?
An independent research study in (Frieler and Riedemann, 2011) suggested that independent creation in popular music is possible, and found under experimental conditions an example of two arguably similar melodies. I was unconvinced by their conclusions – the full research paper notated the melodies that were composed by the study’s participants, and there were similarities but also a number of differences, which would have served to make the melodies appear noticeably dissimilar – more dissimilar than most examples found in US and UK melodic plagiarism case law. Certainly their study did not show any similarities of the specificity that appears in the Pharrell/Kapranos example.
This is a difficult one to argue either way, because the riff is so short and because there are slight dissimilarities. My view is that copying has taken place – there are just too many coincidences (literally – that is, notes that coincide). Kapranos has decided to let it lie anyway. It might be possible to put this one down to cryptomnesia.
The case has now been resolved, and the jury found in the Gayes’ favour, despite the copying not being exact and the musical elements dissimilar, as my original February 2014 post (below) argues. In an interview with the Hollywood Reporter, Richard Busch, the Gaye family lawyer, describes how the Thicke side’s hubris and inconsistency contributed to the jury verdict going against them – but insists that the case was successful because of the characteristics of the music itself. For those who have said that this sets a dangerous precedent for creators (including me – see this MTV news interview), this may be so in terms of discouraging musical homage in arrangements. But in (US) legal terms, a jury ruling is different from a court ruling, so each case is judged on its merits and on the specific evidence presented. Therefore this settlement does not represent ‘case law’ (as attorney Brian D Caplan points out in the same MTV feature) but it has certainly made some creators rather uncertain about their future songwriting and producing practices… [JB]
Here’s a fun bit of arguable plagiarism from Sting.
Every Breath I Take (Gene Pitney) – excerpt from [0:58]
G
Only with every little breath I take
Em
Only with every little step I make
C
Only with every little beat of my heart
D
And every single minute I’m awake
Here’s the Gene Pitney original from 1961, which was written by Gerry Goffin and Carole King and produced by Phil Spector, charting at #42 in the UK. Listen from [0:58].
Here’s a rather close to the wire song that, to my ears, owes rather too much to the verse of ‘Don’t Worry Be Happy’. Compare Emily J’s vocal in the advert [0:00] with Bobby McFerrin’s [0:28] first melodic phrase. And note the identical harmony in bars 1-4 of the verses.
Popular Music as Prophecy: Composing the Future. Rupert Till (University of Huddersfield, UK)
Attali describes how popular music organises the structures and movements of society into audible sound, before such socio-cultural developments are clearly visible. He described three eras of music and sound, as did Cutler and Frith after him. However he predicted in 1977 a fourth era of sound yet to come, focused on composition. This paper investigates this prophesied new world, discussing the implications of presenting creators of popular music as composers. It investigates how popular musicians describe their creations and what this means. It explores their aesthetics, why they write music, and what the relations are of their compositions to modes of mediation and distribution. It attempts to define popular music composition, and its relationships with songwriting, arrangement, improvisation and production. It asks what we might prophesy for the future of society, on the basis of a musical world where popular music composers circulate their music directly to their audience, in virtual and social media music communities outside of existing national geographic boundaries.
Rupert starts with his theoretical framework, citing Attali (1977), Cutler (1993) and Frith (1996). Allati has a ‘4th code’ focusing on composition [from his Four Stages of Music]. His Ritual (Oral – 10,000yrs)/Sacrifice (c.400yrs)/Repetition (recordings – c.100yrs)/Composition (deregulation – the future?). Attali’s view is that when the focus is on making and sharing music for pleasure we (will?) begin to enter the ‘composition’ phase.
He points out that popular music ‘composition’ deconstructs the elitism of the classical tradition and therefore may be more apt for a ‘Composition’ age. He then talks about songwriting and describes it as a ‘special case’ of composition, for several reasons, not least because it involves lyrics. He alludes to ‘team composition’ and the blurred line between songwriting, production and arrangement, especially in rehearsal/recording studio creative environments. In Attali’s view (1977, remember) was that in a notational ‘composition era’ these activities could be carried out at home, by an individual.
Musical Chameleons – Fluency and Flexibility in Online Appropriation Practices. Maarten Michielse (Maastricht University, Netherlands)
This paper argues that music audiences who spend their free time remixing, mashing up, and covering popular music online are often not fans, as we perhaps might expect (Jenkins 1992, 2006), but rather ‘enthusiasts’: music hobbyists who work with any source material, no matter the original artist or genre (Abercrombie and Longhurst 1998; Geoghegan 2009). Remix enthusiasts, for example, tend to enter online remix contests of artists and songs that they often do not know or particularly like. Similarly, cover enthusiasts on platforms such as YouTube tend to work with a broad variety of different source materials, often choosing their songs pragmatically (in terms of popularity, actuality or the challenge that they offer) rather than affectively. This paper uses a combination of online participatory observations and qualitative interviews (see Hine 2000; Kozinets 2010) to show how music enthusiasts find joy in constantly broadening their horizon and developing, what Gouzouasis calls, musical ‘fluency’ and ‘flexibility’ (Gouzouasis 2005; see also Guilford 1967) in order to be able to appropriate ever new source materials in a quick and meaningful way.
The presentation opens with a playback of the song ‘We Came To Rock’ by ‘Nenna’ which was provided as source material for a recent remix competition. The song was derided by the remix community, but interestingly several remixers (who stated online that they hated the source material!) downloaded the files and remixed it anyway! Maarten challenges the prevailing mainstream view that remixers only work on music that they like. He states that remixing opportunities are limited to situations where the raw materials (isolated multi-track files) are available. He points out that filtering [e.g. nulling, hard pan etc] can be applied to isolate audio objects in a mix but it is sonically often unsatisfactory [I have suggested elsewhere in this week’s blog that the popularity of the Funky Drummer loop can be ascribed in part simply to its brief isolation in the mix]. So remixers often work with what Maarten calls ‘the usual suspects’ (i.e. mainstream successful/viral works) because this may mean that the remix may be appreciated by a wider audience. He stresses that remixers are not entirely cynical – rather, they want to engage with listeners and other creators – and this is part of the motivation for choosing mainstream work as the source audio for the remix.
The Cultural Capital Project: Towards Digital Music Monetization Based on Shared Culture. Ian Dahlman (McGill University, Canada), Brian Fauteux (Concordia University, Canada), Andrew Dewaard (University of Wisconsin-Madison, USA)
[abstract]
This presentation will introduce and outline the ideas behind The Cultural Capital Project, a collaborative research project funded by the University of California Institute for Research in the Arts, which explores the historical antecedents, theoretical trajectories, legal ramifications and technical components involved in the creation of a non-profit patronage system and social network uniting musical artists and fans. CultCap operates on three fronts: first, a social network of user-generated listening and sharing habits; second, opt- in tracking software that harvests the musical consumption of users, then suggests equitable compensation to artists through a micropayment subscription fee; third, a legal intervention aiming to provide a legitimate space for the digital consumption and promotion of music in which users are treated as stewards of cultural goods. Incorporating the multitude of individuals who propel the cultural industries with their creative labour, including fans, photographers, artists, labels and others, The Cultural Capital Project aims to establish a “radical monetization” of the music industry based on equity, connectivity and sharing. Integrating the ideas of Bourdieu, Attali, Lessig and more, this research argues — both legally and philosophically — for the recognition and compensation of music consumers in the cultural industries, and the establishment of a sustainable infrastructure to fully embrace shared culture.
[note – my blog summary below was typed at some speed, and may not have framed this complex paper as fluently as the authors would like. For those who wish to explore the Cultural Capital in the detail intended by Brian and his colleagues, please read the original paper, published online at http://www.iaspmjournal.net/index.php/IASPM_Journal/article/view/635]
[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.
ABSTRACT:
[edit: update 12 March 2015]
Popular Music as Prophecy: Composing the Future. Rupert Till (University of Huddersfield, UK)
The Cultural Capital Project: Towards Digital Music Monetization Based on Shared Culture. Ian Dahlman (McGill University, Canada), Brian Fauteux (Concordia University, Canada), Andrew Dewaard (University of Wisconsin-Madison, USA)
