Academic journal article Vanderbilt Law Review

What's in a Song? Copyright's Unfair Treatment of Record Producers and Side Musicians

Academic journal article Vanderbilt Law Review

What's in a Song? Copyright's Unfair Treatment of Record Producers and Side Musicians

Article excerpt

I. INTRODUCTION

As they say in the music business, "It all begins with a song."1 This is true from a commercial perspective, as it would be difficult to record albums, film videos, license music for video games, sell sheet music, or promote concerts without the basic building block of the musical composition.2 It is also true on the metaphysical level, because the organization of sounds into compositional form creates the necessary order that distinguishes music from noise.3

Yet despite the centrality of the song, for legal purposes it is difficult to answer the question, "What is a song?" Or, to use a less colloquial term, "What is a musical work?"4 There is no definition of "musical work" in the Copyright Act.5 Black's Law Dictionary is similarly unavailing.6 Not surprisingly, judicial interpretations of the term have been inconsistent.7 Thus, when listening to a recorded song, it is hard to know which aural sensations are protected by the composition's copyright and which are not.8

The original lyrics and vocal melody, to the extent they satisfy the requisite level of creativity, are generally protected as part of the musical composition.9 However, the degree of protection afforded unique instrumental figures (i.e., "riffs"10) played by session musicians or band members is less clear. Record producers often create or influence the instrumental parts played by recording artists, and they implement sound manipulation techniques in the recording studio that give a recorded composition its unique character.11 Are the producer's contributions part of the musical composition?12

Many judges believe that, for purposes of copyright protection, a "musical work" is comprised primarily of melody and lyrics.13 This belief probably stems from the 1909 Copyright Act requirement that musical works be documented in written notation and filed with the Copyright Office to obtain copyright protection. However, that requirement was not included in the 1976 Copyright Act.14 The problem with this judicial belief is that the "melody and lyrics" conception of musical works is archaic when applied to contemporary popular music.15 In popular music, sound manipulation is often as important as melody for establishing the originality of a composition.16 Furthermore, a restrictive view of musical works ignores the collaborative process through which much popular music is composed today. Musicians often compose in the studio while recording. In those situations, the sound recording is the first fixation of the composition and the definitive guide as to what constitutes the "musical work."17 Accordingly, it is more difficult to parse the distinct musical composition and sound recording copyrights than is often suggested.18

One commentator summarized the changes in record production and music composition over the past fifty years as follows:

Originally, the aim of recordings was to create the illusion of a concert hall setting. The idea was to bring to the living room the sensation of being at a live performance ....

Rock and the many suhgenres it has spawned are a different story: timbre and rhythm are arguably the most important aspects of this music. Generally, nothing beyond a lyric sheet and possibly a few chord changes is written down; the recording of a song functions as its score, its definitive version.... For rock and pop, the interest generally lies not in virtuosity or harmonic complexity, but in a mood, an atmosphere, an unusual combination of sounds ... .19

Unfortunately, copyright law has not adapted to these changes in compositional norms.20 Thus, copyright law does not consistently protect the many artists that contribute to the creation of musical compositions.

This Note analyzes the scope of the musical work copyright in light of current popular music composition and production practices to reveal copyright's fundamentally unfair treatment of record producers and side musicians. …

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