Is the 1988 Copyright Designs and Patents act relevant to the recognised music industry publishing norms?

Introduction

Over the past 20 years, there have been a number of high profile court cases concerning the ownership of copyright contained within recorded music. The outcomes of these cases have challenged the established music industry norms of copyright ownership, where the songwriter is deemed to be who first created the lyrics and melody of a piece [Free, D. 2002]. This ideology ignores the potential significance of other musicians involved in creating a recording that would be heard by the general public. The Copyright, Designs and Patents Act 1988 stipulates that copyright does not exist in a musical work until it is recorded in writing or in any other way [Copyright Designs and Patents act, 2013]. When interpreting this statement in it’s most literal sense, it can be seen that every time a musical work is recorded, a new copyright will be generated associated with that particular recording. This report will focus on the importance of reading the copyright law in this way, in an attempt to answer whether or not “All musicians featured on a popular music recording are entitled to an appropriate share and interest in the music publishing copyright of the work performed on that recording”.

Godfrey VS Lees, 1995

Robert Godfrey was involved with the group Barcley James Harvest in the 1970’s. As the bands “Resident Musical Director” he claimed to have joint authorship of six musical works featured on 2 of the groups albums, claiming to have made orchestral arrangements in 4 cases, and piano/organ accompaniments in 2 others [Domone, K. & Domone M, 2010].

Blackburn J. ruled that Robert Godfrey did indeed have a claim to the copyright on the 6 musical works but was stopped from revoking this license because of waiting for 14-years to claim [Arnold, J. 2009]. This is referred to as estoppel, which is a legal principle that stops claims from being granted if a claimant’s previous actions suggest he/she has accepted the position they were in previous to the claim.

Blackburne J. puts forward the following in his ruling:

“It 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”

[Arnold, J. 2009]

This is the correct reading of the 1988 copyright act as it focuses on how the contribution made to a recording can be very small yet still attract an interest in the recordings copyright to the performer in question. However, this completely disregards how the music industry works and if this interpretation were applied to every existing musical work, would this be fair to the songwriter who had the original idea for the work? For example, a bass player may play a performance of significant quality as an accompaniment to already existing lyrics and melody. Would the idea for that bass line exist without the melody and lyrics used as the inspiration for his part?

Hadley VS Kemp, 1998

A disagreement in publishing income sparked this legal case between Gary Kemp and Spandau Ballet, but perhaps the most interesting section deals with the saxophone solo in the song “True”. An expert musicologist described the solo as “particularly attractive” and “particularly felicitous” yet it only takes up 35 seconds (9%) of the finished recording.  Park J. found that Steve Norman (saxophonist) and not Gary Kemp arranged the notes in the solo played by Norman, yet still credited the sole authorship of the song to Kemp.

This decision, although conforming to music industry norms, contradicts the Godfrey VS Lees case. The saxophone solo contribution was clearly of high originality as it could not have been written by Kemp and should therefore, when strictly abiding to the 1988 copyright act, attract an interest in the copyright of the work. Instead, it was ruled that a pre-existing space was included for a saxophone solo and so; its inclusion was not a significant part of the work because it was not in itself, an element in the work [Arnold, J. 2009].

The member’s claims to a share in the copyright in the songs were also rejected with the exception of one song where the percussion parts were of “substantial and prolonged prominence” [Free, D. 2002]. This follows the ruling in the Godfrey VS Lees but the reasoning behind it contradicts Blackburn J.’s  “little originality” statement. 

To compound all of this, the claimants were further denied from revoking any licenses as they were estopped from doing so.

Beckingham VS Hodges 2002

This case focuses on a session musician known as Bobby Valentino, contracted to perform a violin part on The Blue Bells recording of a song called “Young At Heart”. Previously recorded by Bananarama, the song achieved a medium amount of success. Written by Robert Hodges and his girlfriend (Siobhan Fahey) for Bananarama, it was decided the song would be re-recorded in a different style, for which Bobby Valentino’s violin playing was required. The version by The Blues Bells was a hit in 1984 and an even bigger hit in 1993 when it was used on a commercial for Volkswagen. The violin part was a crucial part of the work’s success and Hodges and Valentino both insisted that they were the parts composer [Free, D. 2002].

Although Hodges gave Valentino the initial idea for the part, it was ruled that Valentino created the part by reversing a country riff played somewhere else in the song and by drawing on inspiration from a song Valentino had composed himself previously.

It was judged that there was collaboration in the creation of the work, there was a contribution from each joint author and the contributions were not separate. Therefore, all requirements of the 1988 copyright act were fulfilled for Bobby Valentino to qualify as a joint author to the work and he was also not estopped from revoking the gratuitous license granted to him, unlike both Godfree VS Lees and Hadley VS Kemp cases [Free, D. 2009].

This is completely against music industry practices but given the apparent significance of the re-recording and inclusion of the violin part, it could be seen as the “fair” conclusion to this case. The work recorded by Bananarama was not as successful as the Blue Bells version and that lack of success can be associated with the differences between the two sound recordings. However, when using the Hadley VS Kemp case as the precedent, did Bobby Valentino not just fulfill his contractual obligation by providing a violin part of high quality, just as Steve Norman was, as part of Spandau Ballet, on “True”?

Brooker VS Fisher 2009

The final and most recent case concerns Procul Harum and the 1967 song “A Whiter Shade Of Pale”, written by Gary Brooker and recorded as a demo tape to his own accompaniment. The song was then re-recorded after taking on Matthew Fisher as an organist who performed the now famous introduction on the recorded work. Fisher and Brooker both agreed that Fisher had created the organ solo for the recording in question but disagreed on sharing the ownership of the copyright to the song itself [Arnold, J. 2009].

Blackburne J. ruled that Fisher should indeed have a share in the copyright of the work, because the organ solo was sufficiently different to what was composed by Brooker and that the existence of a demo recorded previously does not change the organ part from being a product of individual skill and labor by Fisher [POP].

Fisher was not estopped from revoking his gratuitous license until the case went to the court of appeal that upheld the decision that Fisher was entitled to a share in the copyright, but should not be able to benefit from the copyright because of the 38-year gap in putting forward his claim. This was then overturned by the high court that saw it as unfair that Fisher be granted a share in the copyright but be then unable to claim the benefits of that share [Arnold, J. 2009].

This, and the Beckingham VS Hodges cases have set a dangerous precedent for the music industry as they have shown musicians who had no input on the lyrics and melody of the original song being granted a share in the songs copyright if their instrumental performance is deemed significant enough. This is shown particularly when looking at Blackburne J.’s comments on the Brooker VS Fisher case:

“If Mr. Fisher’s only contribution to the work had been the organ accompaniment to the sung parts, it would be a nice question, whether that contribution would qualify him… as a joint author of the work”

[Arnold, J. 2009]

This is incredibly contradictory, as by copyright law and Blackburne J.’s own words, it should. He stated in the Godfrey VS Lees 14 years previous that little originality is required… to a piece of music in order to attract copyright in the altered work” [REF]. It is highly confusing and difficult to come to a clear conclusion how decisions on copyright can be made when both of these statements came from the same Judge interpreting the same laws differently.

Reflection on the cases

It could be seen that the main hurdle facing the ownership of copyright in musical works is the lack of actual music industry law. This lack of law leads to Judges making decisions on creative and individual works using the Copyright Act of 1988 that does not make a definitive statement on what music is. This needs to be rectified, but then it is very difficult to define what may become memorable or significant in a musical work. If it is not the lyrics or melody created by the songwriter, then the instrumentalist in question would be justified in his claim to seek a share in the works copyright, as he is partly responsible for that works success (particularly seen in The Blue Bells case). It is almost like trying to predict what will be the most quotable line in a film script, as it is impossible to look into the future [Arnold, J. 2009].

A possible solution to these copyright claims could be found when looking at the Spandau Ballet publishing agreement that sparked their copyright feud. The vocal agreement between Gary Kemp and Spandau Ballet was that 100% of all royalties generated from the songs went straight to Kemp. Kemp then paid the other members 50% that was shared equally between them. After the split of the band, the 50% ceased to be paid to the other members by Kemp, and a legal case ensued [Southall, B. 2009].

Park J. dismissed the publishing claim as it was found the band had entered into agreements stipulating that publishing income went solely to Kemp, which effectively stated that the band accepted that 100% of the money was his and it was Kemps choice for it be split whilst the band were together [Southall, B. 2009].   

Considering that it was only when Kemp ceased to pay 50% of the publishing income to his band members that the agreement turned sour, it would appear this would be a fair way of dealing with money generated. Spandau Ballet recognized Kemp as the primary songwriter and understood that he was entitled to a greater share, but still received compensation for their performances on the recorded works. This relies on good inter-band relationships however, as not all songwriters will necessary be willing to give away pieces of publishing income earned by what they consider to be their ideas. Therefore, it would be difficult to write into a law and be enforced. Also, this relies on all musicians on the recording having a pre-existing relationship and would be difficult to apply to session musicians.

Conclusion

The copyright act of 1988 completely disregards the standard music industry norms by stating that new copyright is generated every time a new musical work is fixed [Arnold, J. 2009]. This effectively means that whether musicians want it or not, they have an interest in the copyright of every recording they perform on. The industry has tightened this area, with session musicians being asked to sign contracts before performing on any recordings, stipulating that they understand they will not go on to make a claim to any copyright [Arnold, J. 2009].

Without assessing each individual work created on an individual basis and looking at how important the piano playing or the guitar riff etc. is to the quality of the final musical work, it is hard to attribute the song writing credit when using copyright law. Because of how circumstantial every single band, solo artist; writer, song and recording session is, it is very hard to put forward a solution to the problem. Following Copyright law word for word would mean that the answer to the proposed question would be yes, all musicians featured on a popular music recording should be entitled to an appropriate share and interest in the music publishing copyright of the work performed on that recording. On the other hand, should the person playing the triangle have the same share in the copyright, as the guitarist who wrote the riff that the public whistles on their way to work? In the words of Blackburn J. “it would be a nice question” [Arnold, J. 2009].

Reference List:

Arnold, J. (2009) Reflections on the triumph of music: copyrights and performers rights in music [Invited Speaker Seminar], Oxford Intellectual Property. 20th October.

Copyright, Designs and Patents act (Year that the site was published 1995 /last published 2013, May 19th) Available at: http://www.legislation.gov.uk/ukpga/1988/48/section/3 (Accessed: 10/12/13).

Domone, K. & Domone M. Barclay James Harvest Biography. Available at:http://www.bjharvest.co.uk/bjh-biog.htm (2010) (Accessed: 10/12/13).

Free, D. (2002) Beckingham v. Hodgens: The Session
Musician’s Claim to Music Copyright 
Vol.1, No.3, Autumn 2002, pp.93–97 Available at:http://www2.warwick.ac.uk/fac/soc/law/elj/eslj/issues/volume1/number3/interventions.pdf(Accessed: 10/12/13).

Southall, B. (2009) Pop Goes To Court. Second Edition. London: Omnibuss Press.

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