2000 – The recording industry asks Congress to repeal the “work for hire” amendment. Sheryl Crow and Don Henley had been among those artists complaining that the law prevented them from ever owning their masters.
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. 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.
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. 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 subgenres 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 to those record producers and side musicians who are not credited as authors of the musical composition as “secondary contributors.” This designation distinguishes them from those authors who explicitly receive musical composition authorship credit, who are referred to as “primary contributors.”21 The term “side musician” refers to any musician who performs on the recorded version of a musical composition but is not credited as a composer of such composition. This designation encompasses both session musicians, who are paid a fee to perform on the recording but have no formal affiliation with the performer featured on the recording,22 and members of a band who are not credited as composers of a composition recorded by that group.23 This Note focuses on the treatment of secondary contributors. Their work, while significant in the artistic sense and relied on by primary contributors to prove infringement, is often judged insufficient to garner legal authorship credit in the musical composition. This Note argues that current copyright jurisprudence allows primary contributors to free ride on the contributions of secondary contributors by subsuming the contributions of the latter to the recorded version of the composition into the copyright of the composition itself.
Specifically, courts more narrowly construe the scope of musical works when secondary contributors bring claims for joint authorship against primary contributors than when primary contributors claim copyright infringement by third parties. Because this inconsistency has not been examined in detail, if it has been discussed at all, primary contributors have been able to expand the scope of their protectable expression through the creative efforts of secondary contributors without necessarily compensating such secondary contributors for this broadened monopoly. Part II of this Note provides a background on relevant copyright law principles. Part III discusses contemporary industry practices in music composition, production, and recording, including the respective roles of record producers and side musicians, to explicate the collaborative nature of contemporary music composition. With these industry practices in mind, Part IV examines the current ambiguity surrounding the scope of the musical work copyright, which has resulted from the absence of a statutory definition and the elimination of any requirement that musical compositions be reduced to written notation to obtain copyright protection.24 Part V addresses courts’ disparate treatment of musical works in joint authorship and copyright infringement cases and argues that this inconsistent treatment short-changes secondary contributors while unfairly enriching primary contributors. Finally, Part VI argues for both the adoption of a “musical work” definition that includes all non de minimis contributions of expression made by secondary contributors and the wider adoption of the Nimmer Rule for joint authorship claims, so that contributions need not be independently copyrightable for secondary contributors to obtain joint authorship. These changes would ensure that record producers and side musicians are more fairly recognized and compensated for their work. II. LEGAL BACKGROUND The Copyright Act protects “original works of authorship fixed in any tangible medium of expression.”25 The Act specifically protects two distinct copyrights evident in the recorded version of a musical composition: the copyright in the underlying musical work26 and the copyright in the sound recording of the specific performance of the work.27 While this Note deals primarily with the contours of the musical work copyright, an understanding of how the musical work copyright interacts with the sound recording copyright is crucial.
This Part first describes the nature of these two independent yet related copyrights. Next, it provides some legal background on both copyright infringement and joint authorship doctrines. A. Distinct Copyrights for Musical Compositions and Sound Recordings The Copyright Act includes “musical works, including any accompanying words” as copyrightable subject matter.28 The term “musical works” is not defined in the Act; legislative history indicates that Congress believed it had a “fairly settled meaning.”29 Unfortunately, the legislative history provides no further elaboration,30 and courts have adopted varying interpretations. Some courts adhere to the simplistic notion that a musical composition is merely “melody and lyrics.”31 Other courts take a slightly broader view, including rhythm and harmony in addition to melody and lyrics.32 However, as discussed below, both of these definitions are underinclusive given the realities of contemporary popular music production and composition.33 As a third approach, one court has said that “a musical composition’s copyright protects the generic sound that would necessarily result from any performance of the piece.”34 This definition encapsulates the theory of the musical work copyright and its distinction from the sound recording copyright. However, it still does not indicate which sonic elements expressed in the recording are included within the musical composition. The logic of this putative definition is circuitous, because it merely begs the question: Which sounds would result from any performance and which are unique to the specific performance captured by the sound recording? This court’s attempt at a definition does little to answer that more fundamental question.