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.
Here’s an advert soundalike track. They’ve even copied the Cuíca drum. Not a single note or chord is the same as Me And Julio Down By The Schoolyard, of course. But the arrangement and production clearly references the Paul Simon original – and the casual listener is left in no doubt of the source. This is the challenge of soundalike works in music publishing – technically copyright can subsist in any part of a musical work, but it tends to be interpreted (in law and in the making of the work) as only being based around musical notes i.e. if it can’t be notated, it isn’t copyright.
Of course, it is impossible to own the copyright in a musical technique, whether it be strummed semiquavers on an acoustic guitar or a Cuica ‘laughing’ drum. But if the combination of musical decisions in the original work is unique (strummed 16 acoustic, Cuica drum coming in a few bars later, fingerboard muting over a 3-chord/2-bar loop, all at the unusually fast tempo of 210BPM), it’s fair to say that the soundalike track is referencing a specific work rather than just a musical style. And if this is the case, it’s presumably been done so that the casual listener will ‘recognise’ the original; thus, the copyist is benefiting (in this case commercially) from the endeavours of the original artist – without licensing the track or asking permission.
Disclaimer – I make these observations only as an interested academic and musician. There is, as far as I know, no copyright infringement case associated with these works, and if there is I am unconnected with it. But if anyone connected with the publishing of ‘Julio’ is reading this, I hope you go after them!
I’m putting a copy of the post up here to preserve it just in case the original post is taken down, but please do read the original.
In summary, the stats demonstrate that the decline of CD sales has not been replaced – in artists’ income terms – with the rise of digital. So artists were hugely better off in the age of physical CD sales. The original data (which includes some well-researched stats about songwriter royalties) can be found in this spreadsheet.
————- original post below ————–
Recently, the UK government passed The Digital Economy Act which included many, perhaps draconian, measures to combat online music piracy (including withdrawing broadband access for persistent pirates).
As ever, this was incredibly difficult to research. Industry figures are hard to get hold of. Some are even secret. Last.Fm’s royalty and payment system is beyond comprehension. (If you can explain it to me, please get in touch)
Note: these figures do not include publishing royalties (paid to composers of songs). The full spreadsheet of data does though. You can see all the numbers and sources here:http://bit.ly/DigitalRoyalty
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.
Not all similar-sounding songs are copyright infringing – or are they? The new Alexandra Burke single ‘Start Without You’ has a chorus that is remarkably similar to the New Orleans/Creole Mardi Gras song ‘Iko Iko‘. The videos are below so you can judge for yourself (note the ‘Natasha’ 1980s cover is one of hundreds so is not the ‘definitive’ version – it was just the biggest UK hit version – personally I prefer the charm of the original 1960s Dixie Cups version).
The question is – why is this not an infringement? There are two reasons, I suggest. Firstly, despite the Dixie Cups successfully claiming authorship one could argue a case for the melody not being a copyright work – the DCs themselves mentioned in interview that their grandmother used to sing it to them (they were credited as composers in the absence of a prior composer being identified). Secondly, it uses musical ‘gestures’ from the melody rather than a significant number of identical notes. The chord pattern is identical, and the melody’s phrases often start on the same note and beat, but the actual notes, when compared like-for-like, are different. That said, if the Dixie Cups did want to contest this, I reckon Burke (…’s songwriters’ publishers’ lawyers) would have a hard time defending that melody…
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.
[addendum – I’m delighted to say that Dr Typke has replied to the blog post personally, with a very interesting point about the development of Musipedia – click on ‘comments‘ at the bottom of the post to see it]
A lot of the posts on this blog have been somewhat one-sided, perhaps even evangelical. This is because I believe that there are serious strategic benefits to Universities and other large organisations of adopting ‘free’ web-based interactive services, rather than trying to source all their IT needs in-house.
But today I’d like to take a different angle on a much-rehearsed debate – the idea of democratically-collated knowledge, most famously exemplified by Wikipedia.
The Wikipedia arguments
I meet academics all the time who are not regular Wikipedia users, and many of them are critical of it because the very concept sounds absurd. To publish an article on which people rely for research, and to make it editable by anyone in the world seems anathema to HE’s methodology of peer review and serious scholarship. But this point of view misses two important characteristics of Wikipedia – firstly, it is not a primary source. Its policy states that entries should cite only verifiable and reliable primary and secondary sources. Secondly, to criticise it based on the potential for malicious damage is to misunderstand the basically altruistic nature of humans; the majority of people seem to enjoy sharing knowledge. Wilful sabotage takes place, of course, on Wikipedia as in physical textbooks (remember those rude pencil drawings in the margin of your teenage classroom copy of Hamlet?), and, this being the web, the online version is instantly published worldwide. But there is a critical mass of opinion that will prevent inaccuracy; try sabotaging an important Wikipedia page and you’ll see what I mean – it will revert to the accurate version within minutes, as a member of the community swoops in to heal the wound.
There have been attempts to compare online and print encyclopedias, notably the Nature survey earlier this year, and Wikipedia comes out fighting in these cases. But, just like a regular encyclopedia, it is not a one-stop-shop for research – it’s a starting point to get an overview of a subject, leading hopefully to investigation of the reliable sources it cites. Like all academics, I tell my students that Wikipedia is not a source in itself and should not be cited in research (indeed, Wikipedia’s own policy makes this clear). But unlike some colleagues, I do encourage students to use it in order to identify the reliable sources on which the article is based. Wikipedia works. It’s not the fount of all human knowledge, but it does link to it.
These arguments have been well rehearsed in the blogosphere, in the mainstream press, and even in scholarly research. But today, in the interests of balance, I want to discuss a site that falls down precisely because of its democratic, participatory online approach – Musipedia.
What is Musipedia?
It’s a website, founded by Dr Rainer Typke, that attempts to document and make searchable melodic themes from copyright and non-copyright musical works, mainly from Western/tonal music, covering the classical repertoire, popular song and jazz. Here’s the ‘About’ page from the site. Its philosophy is inspired by Wikipedia (although it is a separate organisation) in that it asks the worldwide community of musicians, musicologists and music-lovers to contribute melodies through various web-based interfaces, and then provides mechanisms for visitors to search its database for melodies. The site went ‘democratic’ in 2004 by adding any-user contributions and edits.
And, speaking as a music specialist, it’s very difficult to use. Entries are unreliable, the database is patchy (it includes some really obscure folksongs and omits some massive international pop hits), and it is musicologically underpowered in several ways, making no reference to harmonic context or bar placement, and suffering from an under-developed rhythmic engine (made worse by some contributor entries that contain no rhythmic information). This is not to criticise Typke – he is an eminent published academic with extensive knowledge of music information retrieval systems and some outstanding primary research. But I suggest that it is Musipedia’s Wikipedia-like contributor system that is its downfall.
The idea of a ‘melody dictionary’ is not new. Barlow and Morgenstern published their ‘Dictionary of Musical Themes’ in the late 1940s, and their database (of 10,000 Western classical themes) is now available online. This is much more reliable (than Musipedia), perhaps because of its non-collaborative nature; it was researched by individuals who had a clear overview of a particular musical canon, and more importantly these individuals had a particular level of musical literacy. It’s not flawless – like Musipedia, it omits harmonic context and rhythmic placement, but as a source of monophonic musical lines it’s perfectly usable. Personally I use it in songwriting dispute cases when I’m acting as a consultant to copyright lawyers – it’s a great way of calculating the statistical likelihood of particular pitch choices. And the updated/online version improves hugely on the original print publication because there is a playable MIDI file of each entry.
Musipedia, I suggest, is hampered because there is no measure of the musical knowledge of its contributors, and no quality assurance mechanism to ensure that entries are accurate (plus inevitable legal hindrances related to online music publishing and copyright). But surely one could say that Wikipedia suffers from the same lack of contributor-screening? Certainly, but in the latter case, there are enough suitably-informed people who can spot an error in an instant; the majority of those with an interest in a particular subject can (and do) error-trap Wikipedia articles. Musipedia is different; making contributions requires a certain level of subject-specific skill (aural pitch analysis, music reading etc) beyond the generic research skills of cross-referencing needed to contribute to Wikipedia. Musipedia’s input interface cannot differentiate between an experienced musician and a tone-deaf music fan, and the same problem applies to members of the online community who might error-trap entries by the latter.
For Wikipedians, a democratic approach has achieved a stable welfare state; but I suggest Barlow and Morgenstern’s benign autocracy is more successful than Musipedia’s hippy commune, despite Typke’s excellent architectural drawings for the squat. Hmmm – might have tortured that metaphor far enough now.
There’s a political parallel here in the UK; whatever one thinks of David Cameron’s Big Society arguments, some roles require specialist expertise and can’t be democratised. There are arguments in favour of self-appointed/untrained community religious leaders or even educators, but I’m sure none of us would want to be operated on by a community surgeon, or be a passenger with a community airline pilot. But I digress.
So we’re back to the gatekeepers debate. Wikipedia shows us that democratisation of factual knowledge seems to work – there are enough people in the know (who care enough) to outnumber the saboteurs, the ‘haters’ and the mis-informed. And the ignorant (I use the term in its non-pejorative sense) will mostly stay away from editing Wikipedia articles about which they have no knowledge. There is little incentive for anyone to make malicious edits to, say, an article about a DNA polymerase, and thus it is more likely that such an entry will be accurate because it will, by its nature, attract interested experts as editors.
Music is different. Everybody loves it, and everybody has an opinion about it. But to perform, compose, notate or analyse music requires a set of learned skills that are diluted, not multiplied, by mass democratic knowledge. And if we have no democratically effective mechanism of differentiating between accurate and inaccurate entries, the database’s integrity will suffer.
So I conclude, tentatively, that applying democratic principles to factual knowledge seems to be a recipe for accuracy. Applying them to technically challenging skills such as melody transcription doesn’t seem to bring the same benefits. It’s early days for Musipedia, and I really hope it succeeds, but its wikipedia-like strategy may just be its downfall.
Which is maybe why 99% of the songs on myspace aren’t so great. Sometimes you need gatekeepers.
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)
In a previous post I was discussing the issues of copyright and peer review relating to the publishing of academic work online. Well, I’m delighted to report a lovely example of some progress in my own subject area, Music.
It’s a serious and in-depth study of its subject, and contributes new knowledge and debate to our discipline, as all good research must. And it has been published in online-only form – there is no physical book version. I emailed Daniel to congratulate him on successful publication, and he mentioned in his reply that some of his academic contacts were rather alarmed that he hadn’t ‘published’ his book in the print media sense.
Daniel shares my view that the economic arguments for an academic being supported by a print publisher are negligible – sales of such specialist texts being inherently small in number. And he believes that the best way to share his research with the academic/musical community is to publish it in unprotected form online. The peer review/quality issue is taken care of (presumably by the AHRC funding application process, and the support of the three august institutions that make up CHARM – Royal Holloway, King’s College London and the University of Sheffield.
And most pleasingly of all, his work is not based around music technology or musical e-learning – he’s a self-proclaimed ‘traditional’ academic researcher working in ‘classical’ music – a specialist in, among other things, Medieval European music. So if colleagues like this are becoming early adopters of online research dissemination, the future for e-research looks very bright indeed.
So Daniel, and all e-researchers like him, still needs to tiptoe carefully around the niceties of copyright. In his multimedia (presumably HTML/CD-R?) publication Multimedia Music of Fourteenth-Century France (1997) he describes “editions of music, recordings, maps, charts, facsmiles of manuscripts, tables and translations” that are unavailable in the online version for copyright reasons. What if he did publish these omitted excerpts online? Who really would be harmed economically?
This work, which is about as specialised/specific as music research gets, has a great academic significance but not an economic one. And the latter has hamstrung the former, as he acknowledges;
UK institutions of higher education are entitled to receive a copy for the cost of the copying. At the moment, again for copyright reasons, it’s not available elsewhere. But if there’s enough interest a commercial release may be developed later.
We need a change in copyright law – some extension of ‘fair use’, where the knowledge benefit to society outweighs the negligible economic loss to the copyright owner – in cases when the book version of the research is uneconomic to publish. Or better still, some form of digital watermarking/tracking (like YouTube’s previously-used mechanism for paying PRS royalties for music) so that academics, students and copyright owners can benefit from the ‘Long Tail‘ principles of remuneration that only the Internet can provide.
The status quo doesn’t help anyone – new knowledge is effectively suppressed if its dissemination (in print form) is uneconomic or unfunded. We have an opportunity to change this from the inside by simply publishing our research online as a matter of habit. And Web 2.0 tools (blogs, wikis etc) make this as easy as saving a Word document.
It’s not all good news. Some of the principles I’ve been discussing on this blog – notably the advantages of publishing research freely on the Internet – bring with them two attendant ‘issues’ (I used to refer to these as ‘problems’ but then I became a manager, and all ‘problems’ became either ‘issues’ or ‘challenges’ ;-). They are – Data Protection and copyright.
Data Protection is, basically, the right for individuals to see, and to some extent control, personal information about them that is stored on computers. The Data Protection Act 1998 means that identifying individuals online without their knowledge or consent, while not always strictly illegal, can cause potential problems for bloggers/researchers/teachers using Web 2.0 tools – especially when you get into ‘privacy-light’ web applications like Facebook. You’ll note that where I’ve posted photos of students at work on our School website they are not identified by name, or when they are (e.g. in a pop video) this personal identification has been set up by the student themselves. This is one reason (the other being convenience) why we use embedded YouTube code with video-based student work (i.e. use YouTube playlists to find where the student has posted their own work, and effectively link to it – avoiding any issues of content ownership or DPA). If the student graduates and decides for whatever reason that they don’t want their pop video online, they can just take it off YouTube and it will disappear from the School site (this feature was, of course, unavailable to Ricky Gervais in 1983).
The other big issue/problem/challenge/hurdle is copyright. Researchers often own their own copyright on their work (perhaps – though this is open to question depending on the individual’s employment contract with their home University), and are free to publish it online (although technically teachers often can’t – in most cases their teaching materials are the Intellectual Property of the employer). So before you post anything online you have to know who owns it in the first place (disclaimer – I have a decent working knowledge of this area as a composer and writer, and a teacher of copyright relating to musicians, but I am by no means an expert). As my own lawyer says, Intellectual Property Rights are only properly relevant when there’s money to be made – and even then, they can only be enforced by the courts. And given that a great deal of research (in the arts/humanities particularly) is highly specialised, few researchers are ever going to make megabucks out of their work in terms of publisher royalties – the sales are too few in number. Publishers make money, of course, out of Universities’ subscriptions to their academic journals, which is one reason why it’s so difficult to find a lot of academic articles online unless you subscribe to a service like JSTOR. It took me a good couple of hours to unearth a research article the other day using Athens/JSTOR (it was so much hassle that it would almost have been easier to go to the library).
So assuming you’ve figured out who owns whatever you’re posting online, you run into the problem of quality. Who says that a blog/site is any good? In the old days it was easy – peer review was applied by publishers. Now that anyone can post random unresearched opinions online (as in this blog) it’s very difficult for the concept of peer review to apply. But it must be possible; the difference between web and print as text media is that print distribution costs money (and therefore a profit-making entity called a publisher), so surely we must be able to find a better differentiator than this?!. I admire the approach of Radical Musicology, which publishes all the work freely online. Given that most academics are not funded through publishing royalties to any great extent, shouldn’t all journals be openly available?
If I’m being naiive with these ‘open source’ principles as applied to research, then this may be technically and legally true in the current climate, but I’m in esteemed company. Cornell University recently lifted its restrictions of reproduction of its public domain works. UCL now requires all its researchers to publish to an open-access online repository. And scholarly publishers in the USA are seriously miffed about the University of Boston’s decision to publish all of its academics’ research online – although inevitably this has triggered the same peer-review quality debate outlined above.
The recent attempts by the music industry to enforce copyright control (e.g. the YouTube/PRS collision, which Google is effectively going to win, and the removal of DRM on iTunes) demonstrate that it is impossible to enforce electronic restrictions when there is huge demand for online content. Indeed, throughout human history we’ve proved to ourselves – politically, economically, and especially with access to knowledge – that a minority can’t enforce control against the majority interest (for very long). And the demand for open access to online academic materials is certainly there. Every academic has had to tell students that Wikipedia is not a primary source, and many assessors apply penalties for citing it. But perhaps the cultural expectation of the student (or of any ‘digital native‘) is to be able to find anything online – if they don’t get instant gratification they won’t go to a library. And if Wikipedia is all students can find via a Google search, they will cite it. So, if we as academics and researchers make more in-depth content available without the requirement for secure e-portals like Athens, we’ll be spreading the knowledge we generate as effectively as possible…
…which is kind of what the job’s all about.
Note – if you’re interested in the issues behind this debate, read Martin Weller’s excellent ‘Ed Techie’ blog – particularly this entry about copyright, including the Larry Lessig TED lecture (which I’ve embedded below). Martin’s a Professor of Educational Technology at the Open University in the UK.