Rights of Musicians in a Share of the Success of Their Recordings - Coursework Example

A Discussion on the Rights of Musicians in a Share of the Success of their Recordings Table of Contents 3 Introduction 4 2. Defining Music 4 3. Music and Business 5 3.1 Composition 6 3.2 Copyright 7 4. Conclusion 8 Bibliography 8 Abstract Music is the result of a complex process in which roles are not always clearly defined. In order to be considered part of the composition process and thus an owner of the music, the contributor must have provided something unique and not separate from the work. Not all musicians will have the right to be paid as an owner merely for having played on a recording. A Discussion on the Rights of Musicians in a Share of the Success of their Recordings 1. Introduction Musicians are artists that are mostly hard working and unacknowledged. Making money with music is not an easy road. The way for any business to make money is through volume and this is no different in the music industry. Volume comes when one recording is sold repeatedly so that the money accumulates and makes the people who created and own the music money from its sales. What typically happens, however, is that those with the power ‘buy out’ the rights to what a musician plays so that they do not get paid for every use of the recording that is paid for by one entity or another. Musicians with power will continue to own their rights, but those who are hired for short term of only for the period of time to make a recording are bought out so that the re-sale of the music is not limited by a large body of ‘partners’ who all have rights to be paid (Harrison 2011, p. 232). There was a time when even the artists were not included in the group who was paid on the return of selling the music. Paul McCartney can attest to the pain of that as he saw his entire catalogue of music sold to Michael Jackson after sharing with him that it was going up for sale. As a result of that sale, every time that McCartney wants to play “Hey Jude” he has to pay a royalty, even though he wrote the song (Marinucci 2009). In order to create ownership to a piece of music the contract must include that ownership will be retained either in part or as a whole. The statement that is being addressed is 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”. In addressing the definitions of music, composition, and ownership, the answer is that it is not the case that all musicians would be qualified to gain as an author to a piece of music should they participate in its recording. Contribution is very specifically defined and if a contributor does nothing to qualify under the parameters that have been set, they are not eligible for an interest in the exploitation of that piece of music (McLeod and DiCola 2011, p. 78). 2. Defining Music The first thing that must be done in order to support a legal definition of ownership and the right to be paid for music is in defining what is meant by music. The written composition is not what is being discussed. Music is what is heard. Arnold (2009, p. 1) uses the example of a piece of music that is played by Louis Armstrong as it is compared to that of Peter Ecklund. The distinction is clear as the sound that Armstrong creates has a quality that is unique to his own personal nuances in the work. In modern collectives, however, it is not as simple as that. Burnard (2012, p. 68) discusses the creative process for musicians. It is a process that sometimes is led by one or done isolated, that can be done by only select members, or is most often a collective experience in which the philosophy and intentionality of the group is expressed through what is produced musically. This not only includes the musicians, but the producer and sometimes the managers as they all work towards the production of a type of audible expression. Burnard (2012), p. 69) states that this is a “non-linear, multifactorial, and relational” process. Because of the nature of the process and in how it is not standardized, it becomes somewhat difficult to truly define who the creator of the music is and who should stand as the owner. A discussion made by Fairchild (2008, p. 99) revolves around the nature of music in relationship to how it is used. The use of music can be sold so that it can be reduced to a Musak format or another exploitive form but the question is whether the recording is the expression or if the mimicry is enough to maintain the presence of the music in the cultural perspective. Fairchild (2008, p. 99) writes that “the aesthetic, material and contextual aspects of popular music can be understood in order to incorporate the actual sound of music into the analysis of its social, cultural and musical construction”. The question of composition becomes define by the sound, but then what is the value of something that imitates but does not reproduce the sound? 3. Music and Business Fortunately the music business has never let the complexity of the creative process stand in the way of defining who will receive compensation for music production. To begin with, it is clear that the law does not approach music from the subjective definition but must define it in such a way as to express it in a non-creative and practical format. Arnold (2012, p. 2) states it plainly: “if sounds are presented and consumed as music, that is to say, for audio enjoyment, then they are music”. Music is defined as such when it is an auditory experience and it is consumed as music. Therefore, if a person chooses to define what they are hearing is music it is considered music. The music industry cannot be defined by one model. Williamson and Cloonan (2007, 305) discuss that the nature of the business is that it is different through the relationships that people build with each other, redefining the creative relationships in order to fit within a modeled business dynamic. In addition, a distinction should be made between the music industry and the recording industry as they serve different functions. Williamson and Cloonan (2007, p. 311) discuss how there are a series of distinct sectors in the music industries, each providing different services and a corresponding different set of exploitation avenues. Although there are a variety of ways in which it can be defined, a rudimentary list of different sectors can be the recording industry, musicians, radio, the media, and the division of the various genres. So exploitation comes from a variety of avenues of concern. In defining where the revenue is generated, it must be acknowledged, according to Williamson and Cloonan (2007, p. 311), that there is not a music industry, but a set of music industries. The significance of this difference suggests that how musicians are compensated for their work is based not on their participation in the whole of the industry, but how each individual piece of their participation generates a contribution to the work. An example is seen though the writing of Franklin (2005) as he reviews Ann Davison’s book on music in film. Here the industry of music is focused on modification and emotional expression, inventing the swell as it enhances the elements of the visual. While the music may be the same, the application creates a whole new envisioning of the work. 3.1 Composition What constitutes composition is define by creativity and contribution. Copyright is defined by that ability to control how a piece of recorded music is used and giving permission normally through trade of money for the right to use it (Harrison 2011, p. 59).There are three types of qualifications in order to be considered a part of the composition of a piece of recorded music. Section 11(3) of the 1956 Act states that: i) there must be collaboration in the creation of the work; ii) there must be a contribution from each joint author; iii) the contribution must not be ‘separate’ (Arnold 2012, p. 10). Francesconi, Sartor, and Tiscornia, D. (2008, p. 101) discuss the concept of the ‘work of mind’ and that this can mean not only the work of one mind, but of the collective as well. The collective provides for a hierarchy in which sub-classes of creation can be defined. In doing this, some people have upper level status, while others have contributed but not materially to the authorship. In relationship to authorship and composition, Godfrey v Lees provides context for understanding the overall discussion of authorship. This established that the contribution must be both original and substantial in order to allow for ownership (Rahmatian 2011, p. 58). Fisher v Brooker established that when the creation of a part of a recording was “sufficiently different” (Arnold 2012, p. 12). In Stuart v Barrett it was established that joint authorship would extend beyond the existence within a group as the music had been composed during sessions of practice where improvisation leads to the development of the work (MacQueen, Waelde, & Laurie 2007, p. 88). 3.2 Copyright McLeod and DiCola (2011, p. 76) discuss the two types of copyrights that exist in every piece of music. The written copyright and the recorded copyright each must be considered when defining composition and ownership of a piece of music. Defining the position of the songwriter is to define the beginning of the idea of publishing (Blume 2006, 4). The copyright from the product of the written song is usually not involved in the royalty process. Poe (2011, p. 31) writes that copyright in the United States lasts for the life of the author plus 70 years, but that most songwriters will sell their rights to the copyright in order for the music to become published. The standard in the UK is the 70/30 sale in which the writer will get 50% of the sale with the 20% being reserved to account for any losses that might come from the use of the song and the advance made to the writer. It has been established that copyright in relationship to the playing of a composition only takes effect when a piece of music is recorded (Arnold 2012, p. 3). Who is considered the owner or owners is a complex issue that must be established through the criteria of contribution. A songwriter has ownership of what they write. At that point they can share or sell their interest in what they have written (Honthaner 2010, p. 304). The administrator of a piece of music utilizes the ownership of the copyright in order to create revenue by using that work to exploit its value. Schulenberg (1999, p. 298) gives examples of how a contract can be set up to benefit those who own the rights to a piece of music. It’s possible that a copyright administrator would be named to promote the music and sell it through various outlets. Many specifications are a part of the contract with legal jargon that is specific and definitive. A sample reads “the administrators rights, powers, privileges, and duties with respect to the administration of the Compositions, as hereinafter more particularly stated, shall extend and apply to any and all contracts and licenses heretoafter made or issued by or on behalf of or for the benefit of the Owner, with respect to the Compositions and rights therein and proceeds therefrom in all fields of use throughout the territory” (Shulenberg 1999, p. 298). In order to define how music is used, the development of a highly structured contract is necessary. 4. Conclusion Music authorship and the right to claims in relationship to that authorship is dependent upon the level of originality and substantial contribution that is given by the individual member. Not all members who play on a recording are then eligible to be paid for exploitation of the work. Defining roles in the composition of a piece of music is not always clear. In order to qualify as something more than just a studio musician who plays on a piece of music, the artist must create during the session and put something outside of the original into the work. Not every musician who plays on a work will qualify in that definition of creative contribution. Bibliography Arnold, R. (20 October 2009). Reflections on The Triumph of Music: Copyrights and Performers’ Rights in Music. Oxford Intellectual Property Invited Speaker Seminar. [Online]. Available at http://www.oiprc.ox.ac.uk/papers/Mr%20J ustice%2 0Arnold%27s%20paper.pdf (Accessed on 14 November 2012). Blume, J. (2006). This business of songwriting. New York: Billboard Books. Burnard, P. (2012). Musical creativities in real world practice. Oxford: Oxford University Press. Fairchild, C. (January 2008). The medium and materials of popular music: ‘Hound Dog’ turntablism and muzak as situated musical practices. 27(1), 99-116. Franklin, P. (May 2005). Hollywood theory, non-Hollywood practice: Cinema soundtracks n the 1980s and 1990s by Annette Davison. Popular Music. 24(2), 295-298. Gammons, H. (2012). The art of music publishing. Oxford: Elsvier. Harrison, A. (2011). Music--the business: the essential guide to the law and the deals. London, Virgin Books. Oxford: Elsvier. Honthaner, E. L. (2010). The complete film production of handbook. Francesconi, E., Sartor, G., & Tiscornia, D. (2008). Legal knowledge and information systems: JURIX 2008: the twenty-first annual conference. Amsterdam: IOS Press. Marinucci, S. (27 June 2009). How Michael Jackson acquired the Beatles catalogue: A short outline. The Examiner. [Online} Available at http://www.examiner.com/article/how- michael-jackson-acquired-the-beatles-catalog-a-short-outline (Accessed on 13 November 2012). McLeod, K., & DiCola, P. (2011). Creative license: The law and culture of digital sampling. Durham NC: Duke University Press. MacQueen, H. L., Waelde, C., & Laurie, G. T. (2007). Contemporary intellectual property: Law and policy. Oxford: Oxford University Press. Poe, R. (2006). The new songwriters guide to music publishing: Everything you need to know to make the best publishing deals for your songs. Cincinnati, Ohio: Writers Digest Books. Rahmatian, A. (2011). Copyright and creativity: The making of property rights in creative works. Cheltenham, UK: Edward Elgar. Schulenberg, R. (1999). Legal aspects of the music industry: An insiders view. New York: Billboard Books. Williamson, J. and Cloonan, M. (May 2007). Rethinking the music industry. Popular Music. 26(2), p, 305-322. Read More