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Abstract
While the commercial distribution channels of popular music (such as record retailers, radio stations, video channels, web stores), attribute authorship to performers, copyright law requires that a ‘musical work’ be invented ex post facto out of the ‘sound sculpture’ produced by the artist (and others, such as the producer) in the recording studio. This article explains how copyright law came to privilege some types of authorship, discusses the potential effects of recognizing a multiplicity of authorial contributions in the production of music, and argues for a closer correspondence of legal and aesthetic understandings of culture.
Acknowledgements
The article developed out of discussions with the students and teachers on the University of London's LLM course, Legal Regulation of the Music Industry, and has been previously presented at the ESRC/AHRC Cultural Industry Seminar Series (Seminar 6), ‘The Effects of Intellectual Property on the Organisation of Cultural Production’, Bournemouth University, on 16 September 2005, and the Oxford Intellectual Property Research Centre's seminar series in November 2005. I would like to thank the participants in those seminars for their comments, as well as Tanya Aplin, Richard Arnold, Jane Ginsburg, Martin Kretschmer, Daniel McClean, Roger Wallis and, particularly, Johnson Okpaluba, for reading and discussing earlier drafts of this paper.
Notes
The claim seems to have been misconceived, since Akinola had not collaborated in the creation of the dance arrangement, so could only have succeeded by claiming that the dance arrangement infringed copyright in the rap arrangement.
CDPA, s. 9(2) defines who is the author of a sound recording, namely, the ‘producer’. In turn, the ‘producer’ is defined as the ‘person by whom the arrangements necessary for the making of the sound recording are undertaken’ (CDPA. S. 178). Case-law concerning the ‘producer’ of films indicates that ‘organizational input’ is important: Beggars Banquet Records v. Carlton TV 1993 EMLR 349 (arguable claim that person who provided finance and arranged access to venue where event was filmed was a person who made arrangements); Century Communications v. Mayfair Entertainment 1993 EMLR 335 (person had undertaken the arrangements necessary for the production of the film when it initiated the making of the film, organized the activity necessary for making it, and paid for it). For sound recording cases applying the concept, see A & M Records v. Video Collection 1995 EMLR 25l (person who initiated process and contracted conductor was owner rather than the conductor who booked the orchestra and the studio); Bamgboye v. Reed 2004 EMLR (5) 61, 86 (para. 85) (when defining producer of sound recording the question is ‘Who was it who got the recording made (to put it in a colloquial way)? It is a matter of fact and degree’).
A good example here is the dispute between the drummer Paul Cook and the band Sade, which evolved out of an earlier band ‘Pride’, which split into ‘PSP’ and ‘Sade’: see Cook's blog at http://sonyxfiles.blogspot.com/.
A joint owner (or other co-owner of copyright) can sue an infringer independently and can also bring an action against another co-owner.
Redwood Music Ltd v. Chappell & Co Ltd 1982 RPC 109 (a straightforward arrangement of a well known song employing for the purpose well known musical devices and clichés could be original); Godfrey v. Lees 1995 EMLR 307, 325–326 (noting that Redwood ‘well illustrates how little originality is required of a person's contribution to a piece of music in order to attract copyright in the altered work which results’).
Morgan was Elton John's drummer for thirteen years: Morgan currently works with the band Orleans and has a wikipedia entry at www.en.wikipedia.org/wiki/Charlie_Morgan and a personal website, www.manicdrums.com. See also, letter from Guy Protheroe to Robert Page, of Gentle Jayes, regarding Paul Cook's contribution to various Sade songs: http://sonyxfiles.blogspot.com/.
In an action between Paul Cook, a drummer, and his former band Sade, in which Cook claimed to be co-author of various songs, including the highly successful ‘Smooth Operator’, Protheroe and Morgan provided an expert opinion supporting Cook's claim: Protheroe to Robert Page, Gentle Jayes, 10 February 1995, available from Cook's blog: http://sonyxfiles.blogspot.com/. One reading of this, when contrasted with the evidence given in Hadley v. Kemp, might be that experts have a tendency to interpret the evidence in favour of whoever commissions their reports. For suggestions to this effect, see Alexander Citation(1996) (referring to the judicial requirement that an expert avoid becoming an advocate as an ‘expression of a noble but vain hope’ and describing reality of an effective expert as one who presents ‘controversial opinion’ as ‘incontrovertible truth’ through careful use of primary facts).
Popular music that is created in the old-fashioned way, where the song is developed outside the studio and later recorded would generate two works: ‘musical work’ and ‘original work of sound’.
One side-effect of such a change might be that record companies obtain rights relating to sound works for the period of life plus 70 years in addition to the existing right in sound recordings which has been set at 50 years from making, release or communication to the public. A proposal to increase the copyright term for sound recordings was rejected by the Gowers Review of Intellectual Property Citation(2006) after a careful examination of the economic arguments.
In Aston Barrett v. Universal-Island Records 2006 EMLR (21) 567, where the authorship of various songs on recordings featuring Bob Marley was disputed, Lewison J. held that Aston Barrett was author of an instrumental bridge between the fifth and sixth verses of ‘Who the Cap Fit’ (on the album ‘Rastaman Vibration’). Rather remarkably, at para. 356, Lewison J. refused to decide whether this rendered Barrett a co-author explaining ‘I am quite unable, on my own and without expert assistance, to reach any conclusion about whether the bridge was an original composition; a question of interpretation or performance; or part of an overall arrangement of the song as a whole’. Cf. Locksley-Brown v. Mcasso Music Production Ltd 2005 FSR (40) 846 (Judge Fysh being anything but deferential to the musicologists); Austin v. Graphophone Co (1923) (1917–23) MacGillvray's Copyright Cases 398, esp. 402–408 (where, in an infringement action, Astbury J. was highly critical of the experts who appeared on behalf of the defendant, a clutch of eminent musicians and composers, observing that they ‘so misdirected themselves as to make their real task well-nigh impossible’).
Two problems arise in relation to calling evidence of fans. The first is that it may be difficult characterizing the evidence of actual fans as ‘expert’ in accordance with the Civil Evidence Act 1972, s. 3. But see e.g. Greensleeves Records Ltd.& Anor. v. Melodisc Music Lts & Others. (4 November 1994) (where Deputy Judge Anthony Grabiner QC treated the evidence of an enthusiast and record collector, Mr Rounce, as expert and helpful in determining the likely authorship of reggae song ‘Oh Carolina’). The second difficulty involves justifying how the views of ordinary listeners can help a court establish what is a significant contribution to authorship. In the latter regard, it is worth noting that there is jurisprudence in the context of infringement, suggesting that when a tribunal assesses what is important in a work, the matter is viewed from the point of view of what the target audience would consider important: Billhofer Maschinenfabrik GmbH v. T.H. Dixon 1990 FSR. 105, 121–2 per Hoffmann J. (artistic copyright case). For an exhaustive discussion of the legal test of infringement of music copyright, see Okpaluba Citation(2000).