Introduction: Harmony or Dissonance? Copyright Concepts and Musical Practice
| Published date | 01 March 2006 |
| DOI | 10.1177/0964663906060972 |
| Date | 01 March 2006 |
| Subject Matter | Articles |
INTRODUCTION: HARMONY OR
DISSONANCE? COPYRIGHT
CONCEPTS AND MUSICAL
PRACTICE
ANNE BARRON
London School of Economics, UK
ABSTRACT
The institution of copyright has frequently been criticized by scholars of popular
music for systematically misrepresenting and under-privileging popular music as a
field of creative practice. In this respect, it is sometimes suggested, copyright law
harbours a bias in favour of Western art music that is remarkably similar to that
embedded in musicology, the discipline in opposition to which popular music studies
chiefly defines itself. Setting the scene for this special section of Social & Legal Studies
on (copyright) law and music, this introduction reviews the literature in which these
concerns have been expressed, and traces them to the fact that copyright law – not
unlike musicology – operates with a conception of the musical artefact as a bounded
expressive form originating in the compositional efforts of some individual: a fixed,
reified work of authorship. It explores the origins and significance of the work-
concept as a musicological category, and critically analyses the claim that the legal
concept of the musical work is identical to this category and has been determined by
it. It concludes with the suggestion that the legal and aesthetic musical work-concepts
are at once distinct and overlapping: both reify a temporal experience (a musical
event), but for very different reasons. Whereas the musicological category facilitates
a certain kind of musical appreciation and certain kinds of listening practice, the legal
category facilitates the drawing of proprietary boundaries around ‘objects’ that will
figure in commercial transactions and be the focus of commercial expectations.
KEY WORDS
appropriation; authorship; German Romanticism; musical form; musicology;
performance; sound; work-concept
SOCIAL &LEGAL STUDIES Copyright © 2006 SAGE Publications
London, Thousand Oaks, CA and New Delhi, www.sagepublications.com
0964 6639, Vol. 15(1), 25–51
DOI: 10.1177/0964663906060972
BEETHOVEN AND THE NEW ROMANTICS
OVER THE past couple of decades, the institution of copyright has
frequently been criticized by scholars of popular culture for system-
atically misrepresenting and under-privileging pop music as a field
of creative practice (e.g. Frith, 1990; Auslander, 1992; Schumacher, 1995;
Théberge, 2004). Copyright law, it is said, adopts a narrow conception of
music; overvalues those practices that can be categorized as original compo-
sition of this ‘music’, and has an impoverished understanding of recorded
sound. It tends to equate music with a score, or at least only protects what
can be easily notated in the form of a score. One consequence of this is that
it privileges certain musical elements that happen to be important in ‘classical’
music – notably melody and harmony – and ignores or downgrades others
which are significant within popular music, especially rhythm. Another is
that it rigidly distinguishes the composition of musical artefacts from their
performance, and fails to recognize the creativity embodied in the latter. Yet
another is that it cannot accommodate the ‘sound’ of popular music: the
distinctive inflections of voice and instrument that enable otherwise similar
pop music artefacts to be differentiated by audiences, and the manner in
which these inflections are enhanced, manipulated and embellished in the
recording studio. Copyright law’s emphasis on originality, meanwhile, is said
to deny the ‘intertextuality’ which is so evident in popular music, particu-
larly in practices – like digital sampling – that proceed on the basis that the
appropriation and re-use of sonic materials are the very essence of musical
creativity. In all of these respects, it is sometimes claimed, copyright law is
not only complicit with a general cultural bias against ‘the popular’; it also
participates in wider social processes of domination and helps to sustain
structures of social inequality.
One recent British case – Hadley vKemp [1999] – seems on the face of it
to confirm the force of these criticisms. Here, three members of the group
Spandau Ballet – ‘Princess Diana’s second favourite New Romantics (after
arch-rivals Duran Duran)’ (Lester, 2002) – argued that they were entitled, as
against Gary Kemp, the band’s principal songwriter, to a share of the income
earned from licensing the copyrights in the band’s songs. The basis of their
claim was that some or all of the musical works comprised in the songs had
in fact been jointly authored by Kemp and some or all of the other band
members (Steve Norman, who played various instruments, including the
guitar and the saxophone; Tony Hadley, the group’s lead vocalist; and John
Keeble, the drummer); and that these others were therefore jointly entitled,
with Kemp, to the copyrights in these works. The dispute therefore raised
important issues concerning the meaning of joint authorship of a musical
work as a matter of law, which in turn raised issues concerning the legal
meaning of ‘music’, the identity of a musical ‘work’, the relationship between
performing and ‘authoring’ a musical work, and the relationship
between individual and collective creativity. The court’s ruling can be briefly
summarized: Kemp had composed the vast bulk of the tunes comprising the
26 SOCIAL & LEGAL STUDIES 15(1)
To continue reading
Request your trial