Monday, 18 September 2017

La curiosa historia de ‘Guantanamera’ y cómo se convirtió en uno de los cantos más populares de fútbol

Threads become posts become articles. The discussion of ‘Guantanamera’, which I mentioned in the blog entry ‘Believe It, Chant It, Wear It’, has prompted a great piece by Katia Chornik, which has appeared on Mundo, one of the BBC’s world service websites. I’m quoted a few times, albeit that my words have been kindly translated into Spanish:
Los cantos más memorables y apasionados generalmente provienen de los hinchas de equipos visitantes
The article can be accessed via this link.

Tuesday, 22 August 2017

Recording Bias

Music copyright is elitist. Many theorists have made this claim. They have pointed to the fact that copyright law tends to equate music with its notated form. It therefore over-privileges aspects that can be written down - principally melody and harmony – while it deals unfairly with those elements that can only be loosely captured in a score, such as rhythm and timbre. It is suited to classical music; it is not suited to popular music.
There is evidence of this bias in case law. The Spandau Ballet case, for example, stemmed from a dispute between guitarist Gary Kemp, who claimed that he was the sole author of the group’s songs because he initiated them, and the other members of the band, who argued that they should be regarded as co-authors because they fleshed out Kemp’s compositions with their musical arrangements. Park J found in Kemp’s favour, noting that
A composer can ‘hear’ the sound of his composition in his mind before he ever hears it played. Beethoven could hear his music in this sense even when he was deaf. When Mr. Kemp was devising his songs the sound which he had in his musical consciousness must surely have been the sound they would have when performed by Spandau Ballet, not the sound they would have when sung by Mr. Kemp alone to the accompaniment just of his own guitar.
This decision rested on the conception of the genius romantic composer.
            It should nevertheless be remembered that most songwriting agreements do not come to court. In addition, songwriters are free to make their own decisions about musical worth. They can credit groove and timbre if they want to. In fact, common practice amongst hip-hop and R&B composers is to give 50% of the compositional credits to the author(s) of the rhythm track. If there is an elitist bias, it is at a judicial level; it is not enforced by the legislation itself.
            There is a classical music bias that has been overlooked, however. Academics have focused on the copyright in songs. They have not addressed the elitism of sound recording copyright, which it could be argued has had more profound effects. It is in this area that the bias is legislatively embedded.
Sound recordings have regularly been equated with film in copyright law. There is a fundamental difference, nonetheless. Films have the possibility of two copyrights. There is one that recognises financial and organisational skills, which is awarded to the producer, and another that recognises the original creativity in films, which is usually awarded to the director. In contrast, there is usually only one copyright in sound recordings. It recognises financial input and organisational skills, and is commonly claimed by the record company.
Why is there no creative copyright in sound recordings? Classical music can take some of the blame. Film directors have been awarded a copyright because of their genius. These auteurs take the base material of the film script and convert it into a new artistic work (this conception of directors is itself a reflection of the romantic bias of copyright law). If sound recording were to receive a similar copyright, evidence would need to be provided of creative individuals who take the musical composition and by virtue of their ‘personal and original character’ create a new work, which can be judged to have artistic merit of its own.
If we look at popular music, we can see this happening all the time. Records are valued as much for their production values and the recording ability of the musicians as they are for the underlying song. The producer and the musicians are not following the written instructions of a score; they are making musical and sonic decisions of their own. In contrast, when we turn to classical music, we are not meant to hear the recording studio as a compositional tool. Instead, classical music production is dominated by the ‘concert hall ideal’. The recording is supposed to sound as close to a live performance as possible. The job of the record producer is to be unobtrusive. Similarly, the job of the performers is to follow the score. Their creative genius should be submerged; they are obeying the instructions of the musical composer.
Sound recording copyright has been legislated with classical music in mind. Recording activity has been deemed to be passive at best and damaging at worst. As such, it is not considered worthy of a creative copyright of its own. It is beyond the bounds of the Berne Convention, the international agreement that assesses the creative rights of authors in literary and artistic works. In 1908, British delegates to the Convention suggested an author’s copyright in sound recordings, similar to the one that was being created for films. Their proposal was rejected. Other delegates believed that sound recording was a ‘travesty’, stating:
the composer suffers at present moral injury, from the fact that his work is usually deformed by the necessities of adaptation to the instrument [the gramophone]; the orchestration is re-arranged, melodies are modified because certain notes register badly; ‘scenas’ are cut, and arranged to suit the length of playing of the disc.
In Britain in the early 1950s, members of Gregory Committee assessed the legislation of sound recording copyright by attending the recording of a Mozart symphony. They reported that there was a ‘very high degree of skill (in part technical, in part musical) called into play in recording music’, but concluded that recordings ‘approximate more closely to industrial products than to original literary or musical works’. As such, in the consequent 1956 Copyright Act there was only one copyright in sound recordings, which was awarded to the manufacturer. This remains the case in current British legislation. The Copyright, Designs and Patents Act recognises the director and the producer as separate authors of a film. When it comes to sound recording, however, there is a solitary recipient of copyright: ‘the person by whom the arrangements necessary for the making of the recording ... are undertaken’.
Brazil, Chile, China, Costa Rica, the Dominican Republic, Iceland, Peru, Turkey, Uruguay, Zaire and the countries of the European Union all recognise two copyrights in film. They have one that recognises creative skill, while the other recognises the producer’s duties. In contrast, Ghana is the only country that recognises two sound recording copyrights.
It could be argued that this issue crosses the lines of the copyright in sound recordings and the copyright in songs. If recorded performances and record production were recognised as composition, then this artistry could be absorbed into songwriting credits. In many instances, in fact, this already happens. For example, the majority of hit songs in the UK charts last year were co-authored by professional songwriters, recording artists and (sometimes) record producers. Nevertheless, it can be argued conversely that these credits are the result of a defect in copyright law. In many instances composition, performance and production continue to be separate skills. Musicians and record producers are only documenting their artistic practice as composition because the law gives them insufficient recognition elsewhere. If there were a creative copyright for sound recording it would enable this artistic practice to be recognised appropriately. The elitist bias of legislation would be properly located and addressed.

Wednesday, 9 August 2017

Is Equitable Remuneration Equitable?

The journal Popular Music and Society has recently published my article ‘Is Equitable Remuneration Equitable? Performers’ Rights in the UK’. If you do not have access to the journal via an academic institution, it would usually cost £28 to read it. However, the following link allows the first 50 readers to access the work for free:
            The article has its roots in an entry for this blog, which in turn formed the basis of a talk I gave at the ‘Working in Music’ conference about the Musicians’ Union, held at the University of Glasgow in January 2016. The abstract is as follows:
British musicians receive ‘equitable remuneration’ when their recordings are played in public or are broadcast. Performers’ rights are weaker than those of songwriters, however. This is largely because songwriters are the first owners of their copyrights, whereas performers rarely own the copyright in their sound recordings. This article concerns the remuneration of musicians’ labor. It looks at the legislative evolution of performers’ rights in the UK and addresses the influence that songwriters, record companies, and the Musicians’ Union have had on this area of copyright law. It argues that performers will only achieve legislative parity with songwriters if the ownership and conceptualization of sound recording copyright are reconfigured. This copyright should be awarded to performers for their creative labor, rather than to record companies for their financial and administrative endeavors.

Saturday, 15 July 2017

Where is the Public Interest in Business-to-Business Licensing?

At the end of June I spoke at the 19th Biennial IASPM Conference in Kassel, Germany. My main theme was blanket licensing and how it is under threat: some artists are refusing to licence their songs to streaming services; some publishers are withdrawing their repertoire from broadcast licensing; and Blockchain technology has been proposed as a means of individually licensing the use of music in venues, shops, hotels and industrial premises, as well as for individually licensing broadcast and online. For me, these developments are not good. If blanket licensing goes, the public will lose its democratic access to music. Artists will suffer too: the winners will no longer compensate the losers.
            My talk drew on a blog entry from last year and it could be considered out of date. Twelve months ago there were many celebrity holdouts from Spotify and there was much talk of 'windowing', i.e. restricting the availability of new releases. Today, this is no longer the case. Spotify has become an aspirational brand. Artists, record companies and publishers are no longer restricting their content on this streaming platform.
            This latest phase does not detract from my larger point, however. Blanket licensing is being eroded. We will miss it when it’s gone. You can access my paper via my page.


Monday, 3 July 2017

Fear of Musicking

There is a bias amongst some popular music academics. They are for musicians and they are against songwriters. This is not borne out of a need to venerate the incredible playing ability of certain artists, quite the opposite in fact. The desire is to move away from the idea of ‘artists’. Musicians can be viewed as workers. Theirs is a job of honest graft. In contrast, it is songwriters who carry with them the bourgeois notion of the creative genius, operating at a remove from society. This viewpoint is made clear in a recent call for papers for a ‘Working in Music’ conference:
As with any artistic production, music is also - and perhaps mainly - work. Such an idea is opposed to the romantic mythology from the 19th Century which conceives of artistic activity as coming from transcendental inspiration, impossible to rationalize, and of the artist as an exceptional being whose ‘talent’ would be irreducible to sociological analysis.
What we should be value is the work (the physical effort that is expended in making music) and not ‘the work’ (the musical product that is credited to an author). Christopher Small, with his neologism ‘musicking’ is key to this notion. He believes that we should think of music as a process - and thus a verb - rather than as an object - get rid of that noun!
To music is to take part, in any capacity, in a musical performance, whether by performing, by listening, by rehearsing or practicing, by providing material for performance (what is called composing), or by dancing. We might at times even extend its meaning to what the person is doing who takes the tickets at the door or the hefty men who shift the piano and the drums or the roadies who set up the instruments and carry out the sound checks or the cleaners who clean up after everyone else has gone. They, too, are all contributing to the nature of the event that is a musical performance.
I’m in agreement with much of this. Music is social; we should take genius down a peg or two; songwriting should not be placed above performance in the musical hierarchy. This outlook generates some questionable claims, however.
            First, there is the idea that the practice of musicians is out of step with the legal and commercial perceptions of music. Simon Frith has recently argued that ‘The law treats music as a work, a commodity, intellectual property, something that can be owned and exploited’, whereas ‘Musicians think of music as a process’. But do they always think in this manner? The recording industry may have declined in recent years, but the goal for many musicians is still to make a recording. They also want to have credit for it. These musicians do think of music as a noun. Frith once described the process of popular music as resulting in an object:
The ‘industrialization of music’ can’t be understood as something that happens to music but describes a process in which music itself is made – a process, that is, which fuses (and confuses) capital, technical, and musical arguments. Twentieth Century popular music means the twentieth century popular record; not the record of something (a song? a singer? a performance?) which exists independently of the music industry, but a form of communication which determines what songs, singers, and performances are and can be.
I would argue that this still remains the case, regardless of the academic vogue for musicking.
            Second, there is the desire to conflate music-making processes. It is argued that the division of labour into composition and performance is a classical music conceit. Popular music, in contrast, witnesses a confusion of these roles. Musicians compose as they are playing; songs are produced communally. Frith stresses this point in his recent article, stating that ‘The law assumes music is authored, created by named individuals’, whereas ‘Musicians know that music making is an essentially collaborative, a social process [sic]’.
            Music making is certainly collaborative and the divisions between composition and performance can be blurred. This does not mean, however, that they are the same thing. Few popular music songs are notated, but most of them are written. This is most obviously true of the lyrics. The words are honed and they are crafted, and it is usually an individual who does this. It is also true of the music: chords and melodies are usually developed by individuals or by small teams of writers; they seldom emerge whole during the rehearsal process.
            There is, of course, the question of whether the chords and melody should be valued above other elements of music, such as rhythm and the timbre. Frith believes not. He argues that ‘The law describes music in terms of notes and tunes’, whereas ‘Musicians think of music in terms of sounds and textures’. Again, though, do all musicians think in this way? There are a lot of performers who still believe in songs, and there are many who believe (perhaps conservatively) that lyrics, melody and harmony should be given greatest compositional accord.
            The idea that performance and composition take place simultaneously is in some ways outdated. It harks back to the idea of the rock group: a band of musicians who work up their material in rehearsal or in the recording studio. This is not modern practice. Most contemporary hit records are made by solo artists or by collaborations between solo artists. These musicians usually have a hand in writing their songs, but they do not write them on their own. We live in an era of professional songwriters. Their job is to work on the notes and tunes. It is somebody else’s job to work on the performance.
            There is, however, one modern example where the lines between performance, composition and recording are truly blurred. This is the lone, electronic artist who writes, edits and records their material on a digital audio workstation. Ironically, this type of music making is the least social or collaborative of all.
            Finally, we come to attempts to solve the legal dilemma. If the law is an ass when it comes to performers, how do we make it into something better? One proposal that has been put forward is to regard performance as composition. Richard Arnold has argued for this. He believes that ‘in the field of popular music many works are created in performance rather than being written down first’. Lionel Bently’s solution is to forgo the conventional compositional copyright for popular music and instead have a copyright in the ‘original work of sound’:
The effect of this would be to save copyright law from being asked to invent ‘musical works’ (and, indeed, ‘performances’) in circumstances (as in much of rock and pop – but not all) where the musical artefact is created in the recording studio (and subsequently marketed, appreciated and consumed) by way of such recording.
This idea is problematic in two respects. First of all, it ignores the fact that many songs are not written by the recording artists. As noted above, it is rare today for hit songs to be worked up in a studio like this. Bently’s idea is also unworkable in respect of cover versions: artists whose songs have been covered are not likely to welcome the covering artists as co-composers. The second problem with this proposal is that it posits composition as the desired musical goal. Copyright will give due respect to performers, but only if they cast themselves as writers. Isn’t this where we came in?

Friday, 19 May 2017

That's Me in the Spotlight: Audiences and Musicians on Screen

I have recently had a chapter published in the book Musicians and their Audiences, which is edited by Ioannis Tsioulakis and Elina Hytönen-Ng.

My argument is that musicians learn to perform by watching other musicians on television, film and video, and that audiences similarly learn how to perform by watching the screening of audiences. I suggest that there have been various relationships between the screening of fans and musicians. At times, as with Elvis Presley’s first performances, audiences have provided an act of interpretation: their reactions help to attach meaning to the music. Later, with the British invasion and other examples of teen ‘hysteria’, the actions of artists and audiences are not always aligned. Here, the audience can be viewed as causing interference. The rock years of the 1960s and 1970s offer another model. Here fan behaviour can be frowned up. As such, there has been incompatibility between the rock aesthetic and previous form of audience representation. Finally, I look at the video era, which has brought interaction between fans and artists: everyone is filming each other. To buy the book costs loads of pounds, but you can access an earlier version of the chapter here.

Wednesday, 3 May 2017

The Thicke of It

In my previous blog entry I discussed the difference between the ‘formalist’ nature of songwriting copyright and the ‘physicalist’ nature of sound recording copyright (hopefully, this is more interesting than it sounds). Basically, the copyright of songs expands beyond the format in which the song is embedded, whether that is sheet music or a recording. Consequently, plagiarism expands beyond the inscribed form. You can infringe copyright even when you do not copy the tune exactly. What is at stake is the ‘style and sentiment’ of the work. Sound recording copyright, in contrast, is bound by the recording itself. You can only transgress it if you use the physical incarnation of the work. If your recording sounds like another recording, but does not use that recording, then copyright is not violated. As a result of this difference, Anne Barron has argued that protection of songwriting copyright is ‘thick’ while the protection afforded to sound recording copyright is ‘thin’. Jason Toynbee welcomes this. He argues that the formalist conception of songwriting copyright has led to a ‘hypostatization of form’, whereas the physicalist limitation of sound recording copyright has enabled ‘phonographic orality’ to spread.
            This talk of thinness and thickness can be misleading, however. There are occasions when sound recording copyright is more restrictive and expansive than songwriting copyright. In the first instance, songs have to be ‘original’ works in order to attract copyright in UK legislation. In contrast, all sound recordings automatically receive copyright protection, whether they are inventive or not. Secondly, while there is a similarity between songwriting copyright and sound recording copyright in British law, in that transgression is limited to the copying of ‘the work as a whole or any substantial part of it’, there are differences regarding what makes a part significant. When it comes to songwriting copyright, case law has defined a significant part as a ‘a substantial, a vital, and an essential part’ of the composition; when it comes to sound recording copyright most people now believe that you need to clear any use of a recording, no matter how small. Thirdly, there are differences regarding which musical elements are protected. In his analysis of legal cases relating to the infringement of musical compositions, Simon Anderson has found that most decisions have been focused on ‘melody and lyrics, as these are the elements to which originality, and therefore copyright, can most easily be shown to exist’. Sound recording copyright, in contrast, encompasses all musical (and non-musical) elements that are present in the original recording.
            If songwriting copyright is thick, it is also loose. Composers are generally free to incorporate rhythms, timbres, chord changes and production techniques from previous works. They can even borrow melodies and lyrics if they are shown to be commonplace. Sound recording copyright, meanwhile, is thin but rigid. On the one hand, you can mimic huge swathes of previous recordings. On the other, it is not legally permissible to use even the smallest element of a recording unless you pay for it. This is very much a property law: trespassers will be prosecuted.
A further twist is that the thinness of sound recording copyright has enabled songwriting copyright to be loose. The performative and timbral elements of music are protected as sound; they are not protected as song. This is the case even if producers, engineers, bass players and drummers are being given a share of songwriting credits. By way of example, U2 famously split their compositional income equally between band members. However, if I were to copy the bassline of ‘I Still I Haven’t Found What I’m Looking For’ in my own song it is unlikely that I would be successfully prosecuted. If I adopted the main melody or Bono’s words, then I would. There is, however, one exception to this custom. Texture and rhythm - including Adam Clayton’s basslines - receive compositional protection if use is made of the actual recording. Sampling triggers the copyright in the sound recording and the copyright in the song. The latter occurs even if the compositional elements in play would otherwise fall foul of the ‘significant part’ test. It should be noted, however, that these compositional payments are being made because it is accepted practice within the music industries; they are not the result of case law.
            Are things changing? One factor that I missed in my analysis of the ‘Blurred Lines’ decision is that it offends the formalist and physicalist boundaries of music copyright. If Pharrell Williams and Robin Thicke had sampled ‘Got to Give It Up’ they would have held their hands up: payment would have been made to Marvin Gaye (or his estate) as the composer, and to Motown (or their inheritors) as the owners of the sound recording. ‘Blurred Lines’ does not sample Marvin Gaye’s recording and nor does it use any of its melodic parts or lyrics. What it instead does is imitate the feel and the groove of Gaye’s record. These elements have previously escaped the thick looseness of songwriting copyright and the thin rigidity of sound recording copyright, and it is this freedom that has enabled writers and musicians to build upon each other’s works. Pharrell Williams is correct in his depiction of the threat of the ‘Blurred Lines’ decision:
If we lose our freedom to be inspired, we’re going to look up one day and the entertainment industry as we know it will be frozen in litigation ... Everything that’s around you in a room was inspired by something or someone. If you kill that, there’s no creativity.