In the January 6th Wall Street Journal, Terry Teachout raised a couple interesting points about “intellectual property”. One point especially has some direct bearing on composers and performances of their work:

Last month a London judge awarded 40% of the copyright of Procol Harum’s “A Whiter Shade of Pale” to Matthew Fisher, the group’s ex-organist. Mr. Fisher, who had asked for 50%, doesn’t claim to have written the song, but he did write the Bach-like organ countermelody heard on the group’s 1967 recording of “A Whiter Shade of Pale,” which sold 10 million copies. Judge William Blackburne called the countermelody “a distinctive and significant contribution to the overall composition and, quite obviously, the product of skill and labor on the part of the person who created it.”

[...]

…anyone familiar with Procol Harum’s recording would be likely to agree that Mr. Fisher’s countermelody is an integral part of the song.

Here’s the problem: Where do you draw the line separating creative performance from actual authorship? Yes, Phil Woods’s coruscating alto saxophone solo on Billy Joel’s “Just the Way You Are” is one of that song’s most memorable features — but does that fact entitle Mr. Woods to a share of the royalties that are paid to Mr. Joel for having written the song?

And, a few more questions:

1) In works with indeterminate or improvisatory elements, could the performer begin to claim some share of actual authorship royalties for their realization of your piece?

2) Could another performer be found guilty of infringement, if their own performance was deemed somehow too similar to a previous performer’s realization of your piece?

3) If yes, and taking the issue to its logical extreme, might the interpretation of even a “fully-notated” (bearing in mind that there’s in reality no such thing) piece of yours be deemed the performers “property”? That they could end up “owning” that little attack, portamento or ritard?

26 Responses to “Yours or Theirs?”
  1. jodru says:

    What’s at issue in the Procol Harum case is fundamentally different than what occurs in an indeterminate piece. The opera singer who adds a couple of extra high C’s to an aria hasn’t just earned themselves a writing credit.

    In rock bands, where the writing process is typically democratic, should the singer who wrote the lyrics and the guitarist who came up with the chord progression get credit for writing the drummer’s beat, or the bassist’s line? Moreover, should John Lennon get credit for writing ‘Yesterday’, or Alan Freed for writing ‘Maybellene’?

    Of course not. Pop music has a miserable history on this score, and it’s great to see Matthew Fisher win this case. Queen were one of many bands that lumbered through its career attributing songs to whichever member brought them to the group. But late in their career, after one too many arguments on the subject, they realized that the group writing & arranging process transforms any given song so much that the songs can only be attributed to the entire band, which is what they did on their last two albums.

  2. david toub says:

    This is why the entire concept of copyright should be overhauled. Ostensibly there to protect the creator and encourage creation, it has had a deleterious effect on creativity and the production of new things. For all the copyright lawsuits out there protecting large corporations, the main innovations have still come from small groups, mostly without strict copyright protections (think open-source, for example).

    The same is true for music. While composers and musicians of course have to eat, and should be compensated to the max for their efforts, I’m not convinced that our current system of intellectual property protection does much to enhance the incomes of composers and performers. Your example, Steve, is one reason for this. I suspect that many composers reading your post will be apprehensive and concerned about whether or not their musical works are potentially someone else’s in part.

    So, given current IP law, wouldn’t Donald Rumsfeld be able to sue for part of the royalties from Phil Kline’s Three Rumsfeld Songs, since they never would have existed without his speeches (or his incompetence, but that’s another story)? Shouldn’t Sibelius’s estate be able to collect from Ingraham Marshall (who used manipulated fragments of the former’s fifth symphony in The Fragility Cycles?

    Part of the issue, I think, hinges on whether or not something is new and distinctive. I don’t know that a performer’s portamento would be considered legally distinctive, but I’m no lawyer.

  3. Steve Layton says:

    jodru wrote: In rock bands, where the writing process is typically democratic, should the singer who wrote the lyrics and the guitarist who came up with the chord progression get credit for writing the drummer’s beat, or the bassist’s line? …. Of course not.

    Sure. Which can also mean that the drummer not only recieves a share of every song a group writes (since since their part is almost always self-created), but also controls the right to any other drummer’s performance of the song, that uses the same patterns, right?

    Given the Matthew Fisher decision, I can’t see any real legal difference between that and, say, a performer’s claim on a realization of an Earle Brown piece. Not just as regards a recording of their performance, but the intellectual substance of their performance. In essence they could be judged to actually own all the rights to it. Not just as their own performance, but somehow as joint authorship of that piece with Earle Brown.

    Common sense would say “Aw, come on!”… But we’re talking legal sense here. It could be a weird and slippery slope.

  4. david toub says:

    But we’re talking legal sense here.

    Steve, “legal sense” is a contradiction in terms.

  5. A.C. Douglas says:

    It perhaps escaped the notice of most who read Mr. Teachout’s piece — apparently Mr. Teachout among them — that the language used by Judge Blackburne made direct reference to established British copyright law; viz.,

    Judge William Blackburne called the countermelody “a distinctive and significant contribution to the overall composition and, quite obviously, the product of skill and labor on the part of the person who created it.”

    The legal formula, “skill and labor”, in British copyright law is key to establishing — or withholding — an award of copyright. The notorious Sawkins-Hyperion case of a couple years ago is instructive on this point:

    “The amount of skill and labour necessary to establish a copyright is not very large and is often expressed in negative terms (‘not insubstantial’). Nor need it involve inventive thought, although the use of inventive thought is obviously likely to confirm the originality of the work.” In determining whether a work meets the statutory test of originality, “[t]he question to ask in any case where the material produced is based on an existing score is whether the new work is sufficiently original in terms of the skill and labour used to produce it,” and is not merely an updated copy of the existing score irrespective of how much skill and labor may have been used to produce that copy. On this test, three of the four Lalande editions produced by Dr. Sawkins and used by Hyperion met the statutory test of originality within the meaning of the term in British copyright law, and so were deemed to have acquired protected copyright status. Once that key legal question was decided in Dr. Sawkins’s favor, it was a veritable tiptoe through the tulips to establish that Hyperion had infringed the copyright in those three editions by producing the CD in question.

    The full working out of this issue can be read in this post of mine of May 2005 (from which the above is excerpted):

    http://www.soundsandfury.com/soundsandfury/2005/05/the_sawkinshype.html

    ACD

  6. Jeffrey Quick says:

    Sounds like a good reason not to include indeterminacy in your piece. If you don’t make your performer write the piece for you, they can’t take credit.

    Most Renaissance masses couldn’t be written today because of IP issues. And if Charles Ives had had to deal with Bono/Disney copyright law…

  7. A big part of the difficulty here is the conceptual vagueness around the difference between the “song” and the “arrangement”, which also branches off into the territory of “derivative work.” In one sense, it could be argued that in the Procul Harum case the organist contributed to an “arrangement” of a “song” which he didn’t write, and that the group only ever performed the “arrangement” — the arrangement is a “derivative work” and Fisher contributed to the creation of that work. I would then argue that Fisher is entitled to royalties on any versions of the song that use his contribution to the arrangement — then if I make an arrangment of the song which incorporates the distinctive organ line, I’m making an arrangement of the arrangement, but if I leave the organ part out Fisher should not receive royalties.

    In the case of the Billy Joel song, I would have a few questions. First, was the sax line in question composed/improvised by Woods, or composed by Joel? Second, assuming it was improvised/composed during a recording session, was it does as “work for hire”? If Woods was hired to come into the studio and play on the album, it was probably work for hire. On the other hand, if Woods played regularly with the band and worked up his solo while they were on tour and was then asked to come in and record when the time came to make the record, it probably wasn’t and he should indeed be entitled to a cut. Procul Harum presumably worked up their arrangement of their song in circumstances where the organ line was not “work for hire.” I should say that I don’t know the Joel song, so I’m in no position to rule on whether the contribution is “substantial”.

    In answer to Steve’s questions:

    1. It depends in part on the extent of the improvisational or indeterminate elements. I don’t know how a judge would rule, but in my opinion it should work like this: the performers don’t get composition credit EXCEPT in cases of other performers recreating those improvisations. So if I record your heavily improv-oriented piece I shouldn’t get a piece of the “writing” royalties on the album sales, but if a different performer copies my version, I should get a cut of those sales. All of this is contingent of the amount of improvisation being “substantial” which is a necessarily vague concept that would simply have to be argued out in court.

    2. Yes — if the previous performer’s performance were unique enough to qualify as an arrangement then it would be a derivative work. Again, “substantial”-ness is key.

    3. Nope. Copyright credit doesn’t (appropriately) get assigned piecemeal like that. The performance would have to diverge “substantially” from the notated work in order to qualify as a derivative work.

    Standard disclaimer again: I’m not a lawyer, I’m merely speculating on this stuff.

    P.S. I note with some alarm that ACD and I seem to agree for a change. . .

    P.P.S. The one place I often disagree with these rulings is the way the composition credit is divided up. I don’t know the song, but 40% writing credit on the basis of the organ riff seems high. Similarly, Sting shares writing credit on the Dire Straits song “Money for Nothing” on the basis of his contribution of the “I want my MTV” line which parodies the hook from “don’t stand so close to me.” I don’t know what the percentages of the credit are, but Sting was very embarassed that his publishing company insisted on asserting authorship.

  8. Along the lines of “I’m not a lawyer, I’m just speculating”—the people who are making these decisions about “significant contributions” are not musicians, they are just speculating. And things are getting very sticky very quickly. Ten years ago, I would have dismissed this kind of thing, but recent cases are blurring lines I once thought solid.

    Scenario: composer x writes a piece for violinist y. After working on it a bit, violinist y says some of the bowings are a bit awkward, and suggests alternatives, which composer x agrees with and puts into the score. Until very recently that kind of thing wouldn’t have raised an eyebrow, but now it is becoming clear that violinist y would have a case in a court of law for partial ownership of the result.

    At this point, any smart lawyer would advice composer x to get a signed disclaimer from violinist y before incorporating changes.

  9. Tom Myron says:

    “At this point, any smart lawyer would advice composer x to get a signed disclaimer from violinist y before incorporating changes.”

    That’s why in my end of the business by outs & releases are standard practice.

  10. Lawrence — If the revised bowings were a dramatic overhaul of the editing of the score, I think the violinist would have a legitimate claim to some ownership (although the easiest and I think best way to handle it would be with a buyout or a release or something, as Tom Myron suggests). That piece of the ownership shoulld be pretty small (in many cases negligible) but still justified — my main concern would be that a court might assign an inappropriate percentage of ownership.

    I would argue (very tentatively, since I haven’t had a chance to think about it in any depth) that the industry would be well served by making these kinds of written releases and licenses so standard that they were an expected part of doing business even in very casual settings. I would feel silly asking performers to sign contracts and releases at this stage of my career, primarily because as far as I know nobody else of my rather small professional stature is doing it and I would look like an egomaniacal nutjob. It would be especially awkward in situations where the performers are unpaid volunteers. But if it were an accepted part of doing business (and made easy with the availability of open-source standard contracts that everybody had access to and used) it might provide some legal clarity and protection for people in unforseen future situations.

  11. You can have indeterminacies that are actually very very strict, and take little “creativity” on the part of the performer. My experience with even the most indeterminate work of Christian Wolff – and the case hardly gets more extreme than in his work – is that you’re still very much interpreting, not writing your own piece, though I guess any performance of “For one, two or three people” might by the nature of the process come close to an “arrangement”.

    But when I take my own most indeterminate work, I don’t feel performers are co-composing at all. The choice-making part of the work is something that is composed into the piece. I controll (that is, my score controlls) what choices the performers make.

  12. Galen, you are right about the need for a standardized process.

    Ultimately, the big issue to me is not financial – it’s a problem of permission. We are very close to a situation like this scenario: violinist z wants to perform a piece by composer x. Not only does violinist z have to obtain the music, s/he also has to get permission to play it with the bowings of violinist y, who is notoriously difficult to communicate with. After months of waiting for a reply from violinist y, violinist z gives up and programs something in the public domain.

    Multiply this scenario by all the numbers of performers one could have to contact in order to play an ensemble piece, and you have a dissemination nightmare.

    Samuel, you are right from an artistic standpoint, but this doesn’t really have anything to do with art. Most lawyers have grown up with the notion that the recording is the music, not some piece of paper.

    Tom, I’ve never seen it written before: is the term really “by out?” I had always assumed it was “buyout.”

  13. Jingle Cat says:

    When you pay someone a flat fee to forsake their rights to a percentage it is a buy-out.

  14. Tom Myron says:

    Tom, I’ve never seen it written before: is the term really “by out?” I had always assumed it was “buyout.”

    Yeah, you got it. What am I, a typist?

  15. Samuel — I pretty much agree with you about the indeterminacy issue; my response was more focused on works that involve improvisation. And by improvisation, I don’t mean something like the way the ensemble in music for 18 musicians decides how many times to repeat each segment, but more something like a sax solo over jazz tune, or a realization of a figured bass, etc.

    But your comments made me think of a potentially interesting conceptual followup question. The 1976 US Copyright law states: “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. ”

    This clearly means that John Cage can’t (and as far as I know never tried to) copyright using the I Ching or rolling dice to choose notes. It also clearly means that Steve Reich can’t (and again, as far as I know never has tried to) copyright his phasing technique. Suppose I write the following piece: “Using an 8-sided die, assign one side to each note of the A minor scale which starts on A below middle C. Roll the die 12 times, and write the notes as a series of 12 sequential 16th notes. Have two pianists play the series of notes as a repeating cycle, starting at the same time, but having one pianist play slightly faster than the other so that they go gradually out of phase. The piece ends when the two pianos are back in phase.” This piece is simply the instruction to follow a set of procedures for generating a piece. It should, theoretically, be _un-copyrightable_. My prose description above is copyrightable, just as my engraving of a public domain work would be, but the piece itself should be impossible to copyright.

    So let’s take it to the next step. Two pianists get together, roll some dice, and perform the piece. Another group of two pianists thinks that the pitches that were generated when the first team played the piece worked especially well, and decide to use the same pitches. Do the original pianists have a copyright claim? The only thing they could hope to claim is the series of pitches, but those pitches were not the product of creativity — I can see two opposing arguments. First, if the original pianists had rejected their first few sets of pitches until they got a set they liked, they might argue that they applied their own creativity to the selection process. On the other hand, since the pitches were generated by a random process, the second set of pianists might argue that the first set was making a “discovery” of “facts” when rolling the dice, and that they can’t copyright the discovery of “what happens if we roll a set of dice 12 times at these 12 points in time.” I personally prefer the latter interpretation, but I don’t know if I’m right. What do people think?

    By the way — if you perform my un-copyrightable piece, I hope you’ll credit me even though you don’t have to :)

  16. Steve Layton says:

    Galen wrote: My prose description above is copyrightable, just as my engraving of a public domain work would be, but the piece itself should be impossible to copyright.

    But you might be able to patent the compositional method you described, or even obtain a trademark for certain elements.

    I might agree with Samuel too, except that legally what’s interpretation and what’s creation has been getting more blurry. A lot of Law relies on precedent to keep things in from quickly spiraling out of control. But little by little, some new rulings manage to themselves become precedents, and keep shifting the whole field. We like to think that all this shifting will eventually lead us to the most balanced and just place. But it’s often just as much the case that it leads to progressive destabilization and opportunism, only fixed by throwing the whole thing out and starting over from scratch.

  17. You guys are missing one big deal. There’s no money in our side of the business. That means no lawyers, no lawsuits, no hassles. Lawsuits go where the money is.

  18. You’re right, Jeff, Lawyers go where the money is, but in my experience buckets of money can show up in unexpected places. It’s a good idea to think about these things before they become a problem, because when the lawyers show up, they’ll be sure to be a step ahead of you. I’m currently involved in three different projects where these issues are very pertinent, one of which I wish I had thought through beforehand.

    But again, it’s not the money that’s at issue for me: it’s permission for use. Anyone who has tried to set a text to music by a recently deceased writer knows what a weirdly possessive issue copyright ownership can be. The idea of sharing copyrights with several unlike-minded people is a real nightmare to me. Not just my copyrights, but copyrights in general — again, because the issue is access.

  19. Well Jeff, remember the whole Mike Batt silence scandal?

    Anyway, Lawrence, you’re basically right, but then, the legal terms aren’t fixed. In fact it’s conceivable (though highly unlikely…) that in a lawsuit concerning the copyright on a version of an indeterminate piece, a lawyer might point to *this very discussion* as an example of how the music world treats copyright issues involving indeterminate works… so watch what you’re posting! It may cause jurisprudence! :-)

    (because there will be a time when assistant butchers will be whistrling Variations IV – that’s the whole idea of modernism, that there will be such a time, right?)

  20. Seth Gordon says:

    1) In works with indeterminate or improvisatory elements, could the performer begin to claim some share of actual authorship royalties for their realization of your piece?

    Kind of, but they need to create their own individual work and “piggyback” it on – i.e., if they play a version of Just The Way You Are that veers off into free jazz before returning to the head, they could name the track “Just The Way You Are / Orshgabornavitch #7″ – with credit for the latter part being given to whoever. But it needs to wander pretty far from the source – if the JTWYA changes are still clearly evident under the improv, Billy Joel could claim “Orshgabornavitch #7″ was plaigarism.

    2) Could another performer be found guilty of infringement, if their own performance was deemed somehow too similar to a previous performer’s realization of your piece?

    Sometimes. Miller Lite wanted to use the opening of Santana’s version of Black Magic Woman/Gypsy Queen in an ad. They cleared the rights with the author Peter Green, but Santana wouldn’t license the performance – so they had some guitar chameleon ape it note-for-note, inflection-for-inflection. Santana sued. That case fizzled out before it even got started. I don’t believe there was even an OOC settlement.

    On the other hand, Tom Waits won a rather large chunk of change from Frito-Lay, who hired an impersonator and made a commercial that sounded an awful lot like his “Step Right Up” – they weren’t using Waits’ actual song, but he won anyway, just on account of the implication that it was him singing in the ad. Same thing happened with Bette Midler and Ford.

    The fundamental difference was that in the latter cases the issue was the human voice, and the implication that the listener would think Waits himself or Midler herself was endorsing the product. And while from a musician’s perspective Santana’s guitar is his “voice” – that’s not the way the court sees it.

    3) If yes, and taking the issue to its logical extreme, might the interpretation of even a “fully-notated” (bearing in mind that there’s in reality no such thing) piece of yours be deemed the performers “property”? That they could end up “owning” that little attack, portamento or ritard?

    Based on the Santana case, I would guess that would never happen.

    Also, I’m not sure we need to worry much about the logical extremes or slippery slopes – things very rarely (if ever) go that far in our court system. Copyrighting a portamento is inherently unreasonable – and our legal system operates on reason as much as (if not more than) pure “logic” – it’s like, logic gets you to the table, but reason wins the case. Well, usually it does. We hope.

    given current IP law, wouldn’t Donald Rumsfeld be able to sue for part of the royalties from Phil Kline’s Three Rumsfeld Songs

    Nope. Government works – which would include any statements issued in an official capacity – are considered “fair use” and are exempt from copyright protection. At least until President Bush issues a signing statement giving all rights to his administration’s utterances in perpetuity to the Fox News Channel.

  21. david toub says:

    At least until President Bush issues a signing statement giving all rights to his administration’s utterances in perpetuity to the Fox News Channel.

    Seth, those morons are welcome to keep all of his utterances to themselves in perpetuity.

    Including this one.

  22. jodru says:

    Did anyone happen to write down the information for that Russian chick?

  23. Steve Layton says:

    :-) Just check your spam inbox, jodru; if it’s like mine you’ll have a couple dozen similar offers every hour…

  24. jodru says:

    No, those are all offers to help out African businessmen. This one was unique because she explicitly said that she was the best at sex.

  25. Anonymous says:

    Is it possible for anyone to maintain a thread on this or indeed any new-music site that does not veer off into rabid whining about the right wing minutes after takeoff?

  26. T.D. Lake says:

    One of the hardest things for me as a young composer who would someday like to be played and published is the thought of legal issues. Here’s my feeling:

    1. All music written in art compositions with very few exceptions has only twelve notes.
    2. All music written in art compositions with very few exceptions has very few ways of organizing the notes… that is a musicology question, but it’s pretty true.
    3. Popular music is concerned with copyright minutae because of the way they run their business.
    4. If you quote a new composer and you are aware of it, give him or her credit. There are ways to give them credit.
    5. If you quote a new composer and you are unaware of it, then it sort of depends. Are the melody lines exactly the same? Did you steal their entire harmonic and rhythmic structure? How long did you steal? Because if you’re answering yes and alot to those questions then you’re probably aware of it.
    6. Freely quote from Bach, Schubert, Beethoven, Debussy, because it’s a sign that you know the music, and it delights people who listen to historical art music.
    7. I have never written a piece, that two days later I didn’t start humming Gymnopedie or something of the sort while listening over it.
    8. Legal issues are never clear cut and that’s why we have lawyers. Hope that if you get tied up that your publisher backs you up, or alternately that you lose everything for plaigarizing as you justly deserve.

    As far as music that’s improvised… I used to perform jazz, and half the things I played were licks from other people’s solos. That’s common convention. I never recorded, but it could get kind of difficult, because anything recorded has a copyright. So, if you’re onstage and you play some Phil Wood’s licks, ok. If you record some Phil Wood’s licks, maybe not ok. That’s up to Phil Woods and a team of lawyers to decide.

  27.