Abstract:
Marking the 40th Anniversary of the release of Sgt. Pepper’s Lonely Hearts Club Band, Geoff Emerick, the Beatles engineer on the original recording was commissioned by the BBC to re-record the entire album on the original vintage equipment using contemporary musicians for a unique TV program.
Celebrating its own anniversary, the APRS is proud to present for a select AES audience, this unique project featuring recorded performances by young UK and US artists including the Kaiser Chiefs, The Fray, Travis, Razorlight, the Stereophonics, the Magic Numbers, and a few more—and one older Canadian, Bryan Adams.
These vibrant, fresh talents recorded the original arrangements and orchestrations of the Sgt. Pepper album using the original microphones, desks, and hard-learned techniques directed and mixed in mono by the Beatles own engineering maestro, Geoff Emerick.
Hear how it was done, how it should be done, and how many of the new artists want to do it in the future. Geoff will be available to answer a few questions about the recording of each track and, of course, more general questions regarding the recording processes and the innovative contribution he and other Abbey Road wizards made to the best ever album.
APRS, The Association of Professional Recording Services, promotes the highest standards of professionalism and quality within the audio industry. Its members are recording studios, postproduction houses, mastering, replication, pressing and duplicating facilities, and providers of education and training, as well as record producers, audio engineers, manufacturers, suppliers, and consultants. Its primary aim is to develop and maintain excellence at all levels within the UK’s audio industry.
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.
1997 – West Arkeen, who played guitar on Guns N’ Roses’ Use Your Illusion albums, dies.
West Arkeen (June 18, 1960 – May 30, 1997) was an American musician best-known for co-writing several Guns N’ Roses songs, and was known unofficially as GN’R #6. He died on May 30, 1997 in Los Angeles of a drug overdose.
West grew up in San Diego, Ca. His love for music began at the age of 14 when he started playing guitar. He was self-taught except for a single guitar lesson. He spent hundreds of hours practicing with a metronome in the family room of our house. He moved to L.A. at the age of 21. After several years of struggling to make it in the music industry, he had befriended a group of guys, later to be known as Guns ‘N Roses. They produced his first song to make it on an album: “It’s so easy” was on GNR’s Appetite for Destruction. After that the songs just flowed. He formed The Outpatience in 1995 and released their one and only album in 1996. Six months later, West died from a drug overdose.
Best known for co-writing a number of Guns N’ Roses songs, died suddenly at his home in Los Angeles on Friday. Sources close to Guns N’ Roses as well as posts on the Internet suggest that he possibly died of a drug overdose.
Arkeen co-wrote “It’s So Easy,” “Patience,” “Bad Obsession,” “The Garden” and “Yesterdays” for Guns n’ Roses and also penned “Make Your Play” and “Pressure” for Brother Cane. He’s not known to be involved in the G N’ R material currently being composed and about to be recorded.
Arkeen had been working on his own project, The Outpatience, a band he formed two years ago with vocalist Mike Shotton, bassist James Hunting, guitarist Joey Hunting, drummer Abe Laboriel Jr. and keyboardist Gregg Buchwalter. The band just released their debut album, Anxious Disease, in Japan and were shopping the record to labels in the States. The album boast strong G N’ R connections: Axl Rose, Slash and Duff McKagan appear as guests (Rose sings backup on the title track), and former G N’ R member Izzy Stradlin co-wrote one of the songs.
Stradlin and McKagan are among those mostly closely associated with Arkeen. The trio played in the The Drunkf**ks side project together; Arkeen co-wrote two of the tunes on McKagan’s solo record and he played bass on Stradlin’s Ju Ju Hounds CD.
1992 – “Sex,” a book of erotic photographs of Madonna, is released.
Sex is a highly-designed coffee table book written by Madonna with photographs by Steven Meisel and film frames taken from film shot by Fabien Baron. Sex was released on October 21, 1992 by Warner Books. The book was released by Madonna as an accompaniment to her fifth studio album Erotica, which was released a day earlier (October 20, 1992).
The extremely controversial book featured strong adult content and softcore pornographic photographs depicting simulations of sexual acts, which included homosexuality, sadomasochism and anilingus. Madonna wrote the book as a character named Mistress Dita, inspired by the silent film actress Dita Parlo.
Featured in the book, aside from unknown models, are actress Isabella Rossellini, rappers Big Daddy Kane and Vanilla Ice, model Naomi Campbell, gay porn star Joey Stefano, actor Udo Kier, the European socialite Tatiana von Furstenberg, and nightclub owner Ingrid Casares.
For the release of Sex Madonna gave a party at New York City’s Industria Superstudio, which she attended dressed as Little Bo Peep with a stuffed toy lamb.
Aside from Steven Meisel himself, photographers from his studio were also employed. The book credits Michael Stratton, Darren Lew, Line Barzudkas, Stephen Callaghan and Chris Hobson. Fabien Baron, one of the book’s designers, also shot many of the photo sessions on film (mostly on Super 8 mm). Many stills from Baron’s film were used in the book. Filming was done entirely on Super 8mm, and the filmmakers were Fabien Baron, Stephen Callaghan and Darren Lew.
History
Warner Bros. Records and Time Warner executives were reluctant to allow Madonna to make such a book, and though they eventually gave her permission, they remained greatly opposed to the idea. Madonna was made to sign an agreement that forbade her from including any photographs depicting religious imagery, bestiality, or child pornography.
Not long after signing this agreement Madonna founded Maverick, a multi-media entertainment company. Since by contract she had total artistic control over any of the work released by Maverick, the agreement she signed with Time Warner concerning what not to do in Sex became obsolete. As a “tongue-in-cheek” way of demonstrating her power to the executives who had so vehemently opposed the book, Madonna included two photographs that “broke the rules”—a photo where she is tied à la S&M on a low cross-shaped table surrounded by candles with a large crucifix displayed on the wall behind her, and another photo of her kneeling on the ground with a dog underneath her on its back, creating the impression that she is straddling the animal while it is giving her oral sex. However, should one look closely at the photograph, one will see that Madonna is not straddling the dog’s head at all, but rather kneeling on both knees beside the dog.
Warner Bros. commented that Sex was very difficult to produce, requiring contributions from many different printing and publishing companies, with Mighty Dimension Inc. coordinating the project—LTI, Bishop Studio, Master Eagle Graphic Design, and Shorewood Packaging, all based in New York City; as well as Laserscan Inc. in Phoenix, Arizona; Benson and Palmer in Newport, Rhode Island; Mohawk Papermills in Cohoes, New York; C&H Packaging Company Inc. in Merrill, Wisconsin; and Nicholstone in Nashville, Tennessee. At some point while the book was being produced some of the photographs were stolen, prompting an FBI investigation that quickly recovered the photos. In the credits of the book Madonna thanks the FBI for ” … rescuing photographs that would have made J. Edgar Hoover roll over.”
Madonna had originally intended to call the book X but changed her mind when Spike Lee’s upcoming film Malcolm X began to be promoted—the film was released three weeks after the book, and inspired the fashion trend of wearing hats and shirts with a large X in honor of Malcolm X. Madonna wanted the book to be of an oval shape, but the printing and manufacturing of such a book would have been too expensive. In the end, the original design for the X title and shape of the book were only retained on the back cover (see below) and on the accompanying CD and its packaging.
Design and printing
Sex was designed by Madonna and Baron & Baron Inc. (consisting of Fabien Baron and the photographer Siung Fat Tjia), who also designed the packaging for Madonna’s Erotica album and single. The book is largely presented in a style not far off from Andy Warhol’s works, namely the famous shot on the metallized plastic cover of the book (a colored reverse negative), which Madonna also used for the cover of her Erotica album.
Certain pages include images that are collages of ripped and pasted prints, proof sheets, entire pages in monochromes and full color, and other collages of photos that look as though they were stapled together. The text of the book varies from handwritten to printed, with eye-bending styles of typefaces and colors. In the French, Italian and Japanese versions of the book any printed text that was not printed in these complex typefaces had the French, Italian or Japanese translation printed over it, and any text that could not have the translated text printed over it was included at the back of the book on additional pages. In the Japanese version, Madonna had any photos that included visible genitalia “scribbled out”.
Included with the book is a CD single. It contains a more subdued version of the song “Erotica”, titled “Erotic”, which was only released via the book (this version of the song was also released in an edited version on a promotional-only 12″ picture-disc released in the UK of the song “Erotica”). The song includes alternate spoken verse taken from the book’s opening pages.
There is a small photonovella-style comic bound into the back of the book titled Dita in “The Chelsea Girl” which depicts a party at the Hotel Chelsea in New York City. Allegedly Madonna created the dialogue of the comic book when photographer Steven Meisel placed a stack of randomly ordered photos from one of the book’s photo sessions on her desk. He suggested she conjure up a story while maintaining the random order of the photos.
The English language release of Sex was printed in 1.5 million copies in its first edition and another 1.5 million in its second (Madonna herself is said to own the very first printed copy of the first edition.) Warner Books only allowed Sex to be printed in the English, French, Italian, and Japanese languages. The Japanese, French, and Italian language releases all received a 1 million copy printing each for the first edition, and since the Japanese version was banned shortly after its release, it did not receive a second edition printing as the French and Italian versions did. The English version was the only version printed in the United States, while the French, Italian, and Japanese versions were printed in their respective countries, and aside from the translated text and differences in paper quality, they are identical to the English language version. The Japanese version was printed on art paper of far higher quality than that of the English, French and Italian versions.
The Japanese version was the only release of Sex to be put into a special box. Although all of the other official releases of the book include the title on the metallized plastic cover as “Madonna Sex”, the Japanese language release had the title printed as “Sex by Madonna” on the metallized plastic cover.
Books that were printed in languages such as Spanish, Thai, or Russian are all unofficial and were manufactured without the consent of Madonna or Warner Bros. These versions of the book were printed in a variety of styles, with varying covers and quality.
Release
Prototype edition mylar cover of Madonna’s book Sex
Prototype edition mylar cover of Madonna’s book Sex
Packaging for the promotional CD of the song Erotica, which was included with the book and seems to represent a condom packet.
Packaging for the promotional CD of the song Erotica, which was included with the book and seems to represent a condom packet.
A huge public “buzz” preceded the book’s release, which took place on October 21, 1992, generating massive publicity. Several organizations tried to boycott the sale of the book, while many book stores refused to carry it. There were many negative essays by critics that considered Sex to be a calculated controversy timed to boost sales of Madonna’s new album. Soon after the release of the book there came a phenomenon which was considered to be a “Madonna backlash”, with many people feeling that the singer had finally “gone too far”.
In spite of the controversy and negative reviews, Sex sold 150,000 copies on the day of its release in the USA alone. Three days later all 1.5 million copies of the first edition were sold out worldwide, making Sex the most successful coffee table book ever released. The bookstore chain Waldenbooks sold 22,000 copies of the book on the day of its release, and commented to MTV that they had never once seen a book sell out so quickly.
The day after the release of the book MTV aired a special called The Day In Madonna hosted by Kurt Loder (the title of this special was a pun of the title of the channel’s daily show The Day In Rock), which profiled the release of Madonna’s Sex and her new album Erotica, even taking the book to the streets to allow people, including a sex therapist and group of real-life New York City Dominatrices, to view it. MTV also interviewed many people who had viewed the book on the day of its release at the HMV music store in New York City. In celebration of the release of the book, the store held a Madonna look-alike contest and set up a booth where people could view the book for $1.00 a minute, with all of the proceeds going to Lifebeat, the music industry organization founded to help fund AIDS research.
Since all of the first edition copies of the book sold out so quickly, there was a huge demand for additional copies, with Warner Books deciding to print a second edition of the book.
The Japanese version of the book was released on December 1, 1992, and after a week of being for sale in Japan the book was banned, leaving many book and music chains that purchased copies of the book unable to sell them, prompting these chains to sell the books via the internet. In mint condition, this version of the book is today very valuable.
Now long out of print, Sex is very valuable—prices for a brand-new unopened first edition can start at USD200 on Amazon.com or eBay.com. As a result of the Japanese version of the book only being printed in 1,000,000 copies and being banned shortly after its release, an unopened edition can start at prices as high as USD400.
Madonna later responded to the negative publicity and controversy with her 1994 song “Human Nature”, which was included on her album Bedtime Stories. The song is considered one of Madonna’s most personal. Powerful in its message, the song contains the repeated phrase “express yourself, don’t repress yourself”, while in the chorus Madonna sings to her critics, “I’m not sorry. It’s human nature. I’m not your bitch. Don’t hang your shit on me.”
According to the American Library Association, Sex was the eighteenth-most challenged book in libraries in the 1990s.
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