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.

How the developments of new technology have changed the way Music Publishers generate income over the past 50 years

Introduction

Music Publishing is the area of the music world that controls the copyright contained within musical works. Publishing companies exist to collect the royalties generated by the use of the copyright contained within songs and act on behalf of songwriters to exploit these copyrights in order to generate revenue. [Avalon, 2009, pg 41]. For this to take place a deal is signed between the songwriter and the publisher to give control of the copyright contained in the works to the publisher and gives them permission to administer them. The income from the exploitation is then split in accordance to the deal (e.g. 60%/40% or 70%/30%) and depending on the deal, an advance may be paid to the songwriter that is then recouped by their future earnings [Passman, 2011, pg 230].

The three main areas of publishing income are split into royalty brackets; performance (live performance and broadcast) and mechanical income (reproduction of recordings and works) being primary sources and synchronization (sound recording placed with moving image) being a secondary source [Wikström, 2009, pg 57]. The way each of these revenue streams has earned money for publishers has changed over time thanks to developments in technology. The relationship between these technological advancements and how they have affected the income generated will be the main subject of this piece. 

History of Music Publishing

The music publishing industry as we know it today started with the production and sale of sheet music on Tin Pan Alley, which is where the term “Publishing” was, coined [Harrison 2011, pg 110]. The publishing offices on Tin Pan Alley (Denmark Street in the UK, West 28th Street, NY in USA) employed songwriters to write songs that were pitched to the popular singers of the time to be performed. This was the only way for the works to be heard, as there were few national radio platforms in the early 20th century and those that existed, did not cater for popular music. It was also regular practice for performers to not write their own songs and therefore relied on published songwriters to give them material. Unfortunately, this resulted in unpublished songwriters finding it very hard to exploit their music without the backing of a publisher [Passman, 2011, pg 232].

Because of the lack of recorded music at that time, people had to buy and perform sheet music in order to enjoy music in the home. This is the first time the commoditization of music yielded significant profit, with “School Days” performed by Gus Edwards selling over 3 million copies of sheet music in 1907 [Wikström 2009, pg 62] showing just how vast the secondary income market could be.                                                                                                                                                                        Performance Royalties

In terms of publishing, performance royalties are a primary source of income and not only limited to when a composition is performed live in by an artist, it is whenever that particular work is broadcast publicly, whether that be on the radio, in a place of work, the internet, a shop or on television [Wikström, 2009, pg 57]. The money generated by broadcast/performance is then collected by collection societies, the main UK collection society being the Performing Rights Society (PRS), and then distributed back to its members. In short, each publisher assigns the performing right contained within all of the songs in their catalogue over to the PRS to be licensed on their behalf [Nichols, 2013]. Once this deal is completed, the PRS then go to every user and ensure that they have the correct license in order to broadcast the music publicly. The users pay a license fee to the PRS that covers their particular song usage and the funds generated (minus the PRS’s operating costs) are paid to the publisher and then, in turn, the songwriter [Passman 2011, pg 251]. It is also possible (and encouraged) for unpublished songwriters to join the PRS so that their royalties are collected and distributed to them, as some songwriters choose to publisher their own work and get paid directly, or have not yet signed with a publisher [PRS, 2013].  

Technological innovation has played a huge role in the way that performance royalties have been generated over time. Tin Pan Alley had songwriters creating works for singers to perform live in public, but this evolved with the invention of recording technology and development of radio equipment. These advances meant the songs could be broadcast as recordings and earn significant royalties without the need of a performer [Wibberly 2013]

The earning potential of recorded songs being broadcast developed further as technology opened up further avenues of secondary income. Songs started to become used in motion pictures and broadcast to cinema audiences where performance royalties are earned, although US cinemas are exempt from this. Works also started to be used in television advertising campaigns where broadcast royalties are due after every airing. As the number of television channels has increased, so has the possibility of earning public performance royalties [Passman, 2011, pg 253]

However, the largest shift in performance royalties has come in the digital age with income being generated through plays on YouTube, digital download services such as iTunes and streaming services such as Spotify. As of 2012, the royalties generated through online usage have eclipsed radio broadcast and live performance. This is an indication of the radical change the music industry has been through over time [PRS, 2013]. 

 Mechanical Royalites

Another form of copyright exploitation in the music industry is the reproduction and manufacturing of songs contained within sound recordings. Whether these are vinyl records, cassettes, CDs or even digital download files, a license needs to be applied for in order to reproduce the works in this way [Krasilovsky, Shemel, 2007 pg 161]. This license is called a mechanical license and in the UK is obtained through the Mechanical Copyright Protection Society (MCPS), which is paid on every physical release manufactured. The license fee on every physical copy produced is 8.5% of the published dealer price (PPD) but is a slightly different amount for online reproduction. These are the primary sources of mechanical publishing income. Mechanical license fees are also payable when copyrighted music features on computer games and DVDs that are being mass-produced and sold [Harrison, 2011 pg 121].

Initially, it was only vinyl records being sold that generated mechanical royalties and over time this has developed into many other forms of media using music also having to pay for it usage. Given the wealth of different formats carrying licensed songs in today’s market, it would be assumed that mechanical royalties would generate a significant portion of the music industries revenue. Unfortunately, because of the digital revolution, the amount of money generated through the mechanical reproduction of music has been in decline due to an overall decrease in the amount of physical releases sold [Rogers, 2013, pg 32].

This has not always been the case though, before the digital age, one of the music industry’s primary royalty generators was mechanical revenue. This is highlighted with the invention of the CD, as record companies were able to reissue their artists back catalogues. Avid fans would purchase their favourite acts recordings, repackaged on the new medium, which resulted in mechanical royalties coming in from records that were not only popular at the time, but also from those who had long since disappeared from the public eye [Wibberly, 2013].     

This could be seen as one of the music industry’s greatest ever marketing achievements, maximizing mechanical income. The public were promised that CDs had a cleaner sound of much higher quality, as well as being more portable and more hard wearing, enticing music enthusiasts to take up the new format [Harrison, 2011, pg 183]. However, the digital age has actually seen some music buyers revert back to purchasing vinyl; the format the industry proposed was out of date. Although still small in number, the resurgence of the vinyl format could indicate the extent of the music industry’s cunning, seeking to squeeze maximum amount of profit from the consumer [Dredge, 2013].

Synchronisation Royalties

Synchronisation in a publishing sense is the act of placing a recorded musical work to moving image and in order to do this, a synchronization license must be obtained. From films and TV programs to advertisements and computer games, wherever a musical work is used, it would have been paid for. These deals are often very lucrative for the songwriter with fees of £100,000 being relatively commonplace [Harrison, 2011, pg 123]. If a song is to be used in any film or motion picture then the producer of the film must go directly to the publisher to use the song in question, then to the record label to use the sound recording in question. This process also applies to get permission to use a work in a television advertisement or video game. The same also applies if a song is to be used on a television program in the USA. However, in the UK, the process is slightly different for television programs. The main channels such as SKY, BBC and ITV pay a “blanket license” to the PRS, which is a negotiated set fee, enabling them to use any song controlled by the PRS and any sound recording registered with the Phonographic Performance Limited (PPL) in their show [Passman, 2011, pg 261].  

The potential for royalties from secondary revenue sources can be explained when looking the soundtrack of the 1973 motion picture, American Graffiti. Music from the 1950’s and 1960’s was synced to the moving images in the film to recreate the feel of early 1960s America [Guardian, 2013]. Music from Buddy holly, Johnny Burnette and Bill Hailey [Amazon, 2013] among others, was included, which saw interest in those acts rekindled long after their recording careers had diminished or completely ceased. This meant that inclusion on the films official soundtrack provided mechanical income from the copies of the album manufactured, performance royalties were generated from the films cinema showings and synchronisation royalties were also paid for the songs inclusion in the film itself. Record labels also had the idea to stimulate primary income by re-releasing material from the featured artists back catalogue and so benefited from the profit of those sales, which in turn lead to the songwriters (or their estates) benefiting from mechanical copyright attached to production of the re-released work.

Publishing companies still didn’t realize just how productive the area of secondary income could be until Levi Jeans re-launched their brand with an innovative television advert featuring Marvin Gaye’s, “Heard it Through the Grapevine” which together married moving image and music to create a cool, authentic and original feel for their brand. Advertising agencies realized that music could be a way to help branding and sell products. This was an opportunity that could yield large amounts of money for publishers with both synchronization and performance royalties generated. Not to mention the mechanical royalties generated by the rejuvenated sales of a long since forgotten record. Virgin Publishing were the first act on this and set up a dedicated synchronization department to fully exploit this revenue stream which is now a cornerstone of every publishing company today [Marcel Visser, 2013]. 

Today, the synchronisation departments of publishing companies also have to change the way they generate revenue in the digital age. For example the act of synchronisation in a computer game should generate both synch and mechanical royalties. This is not the case and instead, a flat fee is paid to the publisher of the work in question in return for the songs use. [Passman, 2011, pg 262]. 

Another interesting sync case to look at in the digital age is Bjork’s release of a digital and interactive “App” in conjunction with an album. This is an innovative idea as music is synced to moving image in an interactive way, in a product will be copied every time the app is downloaded and therefore, generate both synchronization and mechanical royalites for publishers [Kiss, Needham 2013].  

Unfortunately for publishers, it seems that the increase in technology available could lead to difficulties when completing synchronisation deals in the future. Leading music supervisor PJ Bloom suggested that the potential exposure and revenue sales generated through a synchronisation deal are so important, that rights owners should be willing to pay for the right sync deal [Musicweek2013].

Conclusion

Labels and publishers paying for advertising space would indicate a complete shift from the current synchronisation paradigm, as advertisers would no longer be paying for the use of songs. Music Publishers would instead, pay for a works inclusion on an advert, in order to benefit from the exposure that would generate income through other revenue streams. Coupling this with how the digital age has seen mechanical royalties continue to decline, the publishing market looks to become even more challenging [Rogers, 2013, pg 32].

However, the copyright in a song will always be exploited, which means royalties will be generated, even if the money generated becomes spread thin over a number of different revenue streams. If the days of big mechanical royalties are over and synchronisation fees continue to decline, the future could be in song placement. Higher quantities of music in more places all together generating sufficient income could be the future of the publishing world in the 21st century [Musicweek, 2013].

Reference List:

Amazon. (2013) American Graffiti Soundtrack. Available at: http://www.amazon.co.uk/American-Graffiti-Soundtrack/dp/B000026E2D/ref=sr_1_1/278-6006356-5504442?ie=UTF8&qid=1382642843&sr=8-1&keywords=american+graffiti+sound+track (Accessed: 24th October 2013).

The Guardian. (2013) American Graffiti. Available at: http://www.theguardian.com/film/movie/36298/american-graffiti

(Accessed: 24th October 2013).

The Guardian. (2013) Daft Punk and David Bowie Have Helped UK Vinyl Sales Double in 2013. Available at: http://www.theguardian.com/music/2013/oct/17/uk-vinyl-sales-daft-punk-david-bowie

(Accessed: 24th October 2013).

Harrison, A. (2011) Music the Business. 5th Edition. London: Ebury Publishing.

Krasilovsky, M. W and Shemel, S (2007) This Business Of Music. New York: Watson-Guptill Puplications

Moses, A. (2009) Confessions of a record producer. 4th Edition. Milwaukee: Backbeat Books.

Nichols, S. PEDL Key Account Manager, PRS for Music (2013) Conversation with Danny Dawkins, 27th October.

Passman, D. (2011) All You Need To Know About The Music Business. 7th Edition. London: Penguin Group.

PRS. (2013) YouTube Deal – Help Centre. Available at: http://www.prsformusic.com/creators/helpcentre/Pages/YouTubeDealHelp.aspx#5

(Accessed: 24th October 2013).

PRS. (2013) PRS For Music 2012 Financial Results Briefing Paper. Available at:

http://www.prsformusic.com/aboutus/press/latestpressreleases/Documents/04%20April%202013%20-%20Financial%20results%20briefing%20paper.pdf

(Accessed: 24th October 2013).

PRS. (2013) Press Releases. Available at: http://www.prsformusic.com/creators/helpcentre/Pages/YouTubeDealHelp.aspx#5

(Accessed: 24th October 2013).

Rogers, Jim 2013, The Death and Life of the Music Industry in the Digital Age, e-book, accessed 24th October 2013, <http://uel.eblib.com/patron/FullRecord.aspx?p=1172529&gt;.

Marcel Visser (2007) Levi Commercial – Laundrette. Available at: http://www.youtube.com/watch?v=wT4DR_ae_4o

(Accessed: October 24th 2013).

Wikström, P. (2009) The Music Industry. Cambridge: Polity Press.