Whose Song is it Anyway? Creative Collaborations in the Digital Age.
1. KEYNOTE– JAMES WARE
I will try to give you a general introduction to copyright and practical problems that arise out of the performance of songs in sessions and studios, and how to deal with copyright issues that arise. I am going to discuss cases that have gone to court and some of those that have reached settlement.
Whenever an academic reaches a problem about a subject, they tend to use a word like “paradigm shift”. This evening, I am going to talk about a paradigm shift in the culture of music as it has changed over the last 50 years or so, With a recording made 50 years ago, it would be taken for granted either that the session performers were, on the whole, performing from sheet music written down in a fixed form, which might or might not have been arranged by an arranger, and there was no copyright in such arrangements.
An arranger would not normally be paid by the publisher, unless there was a clear understanding between the publisher and arranger about the copyright.
Arrangements and Copyright
What is an arrangement? It is a rather grey area of copyright. When can you claim to be an author of a song that has already been written? Do you have a claim to copyright if you have changed music that has already been written by somebody else?
Yes, you can make a change to the copyright. A substantial change would alter the substance of the copyright assuming it is not a mere transposition. If it is something more than a transposition, I would say the accepted view is that it is a new copyright; an additional copyright in the arrangement.
So there can be a new copyright in an old piece of music. But is that of any value to you as an arranger? That’s a vexed topic, because, without the consent of the original copyright owner, you can’t make use of the original copyright.
When you make an arrangement in one form or another, the question is, can you take that arrangement away and make money out of it? The answer is, on the copyright basis, normally no. The original publisher and the original copyright owner won’t agree to it. However, because the original contribution by the arranger is something separate from the original copyright, it creates a separate right in the arrangement.
So, the original copyright owner cannot make use of the arrangement without the consent of the arranger. There is an exception to that: If you as an arranger go into a studio and know that your arrangement will be used by the original copyright owner, the argument can be put forward that you have been impliedly, implicitly consented to the use of the arrangement in the studio. This line of argument has been challenged in the courts.
In the background I have to relate the collecting society practice. The large amount of money generated by copyright is collected and distributed by the collecting societies who have their own rules as to arrangements and who gets the money from those arrangements. There are lots of conflicting accounts as to the arrangements and contributions to songs.
Let’s go back to 1954, the best analogy to this. The jazz greats, were busy in the studio -. Dizzie Gillespie, Charlie Parker, etc. They would be performing a song of a particular writer, but each of them would have their own amazing, fantastic breaks into which they would like to introduce new rhythms, new harmonies, new melodies. But the reality was, if you look at the copyright credits on all the albums from that period, not one of them would claim copyright in a song that had been previously written by someone else.
So at that point in time it was very rare for someone who would clearly have made an important original contribution to a performance – a critical sax break for instance -something that made the whole piece. At that point there was no question about a copyright; no one ever felt there should be a claim for copyright. One would say it was implicitly understood, there was an implied arrangement or agreement between those involved that the original contribution of the step-up musician at that point was not treated as a sufficient original contribution to claim copyright. That just did not happen.
When did this paradigm shift take place, such that people felt that creativity in the performer was sufficiently important to give the performer a claim to a share in copyright?
Wesley Magoogan and Hazel O’Connor
Now, just because I am very big headed, I claim to be an important factor in that paradigm shift in my own way. There may have been prior occasions, I am sure there were. Some may remember the film “Breaking Glass” and the name that was very fresh to me at the time, Hazel O’Connor. Bizarrely enough, in the mid 1970s, Hazel was a client of mine. But life cycled on and I ended up being a music publisher running a music publishing company, April Music, later becoming CBS songs.
One of our arrangers was a very talented sax player called Wesley Magoogan, a great session musician. He didn’t have his own band, and was not somebody you’d immediately think of as one of the great names of that period, but you will find his sax riffs featuring on a lot of very successful records. He was on the session for a fabulous song, Will you? At the end of the song there was an extended sax solo, which was very different from the rest of the song.
When recording the session, Hazel made various comments to him that led him to believe that she had recognised his original contribution to the song. It was Hazel who has written the song, she was involved in a session, it was for her record. She led him to believe by her conduct (and this was part of the case), that he would get some credit.
Had she not done that, would the claim have been made? I don’t know. So there is something there in the conduct that affects the issues. Wesley came to me, I published him, I signed him and he asked: “What can I do about it”? I said: “We’ll do something about it”. Music publishers quite often don’t intervene in these situations, but I felt strongly about it.
We made the case. That claim led to Hazel making a very rude remark about me in her book and she did not think much of me having been her lawyer and then helping Wesley Magoogan to establish his case.
We got a very good settlement, probably not very dissimilar to the Pink Floyd case that has gone through recently. So you look at the situation when somebody is involved in the session. In this instance, there was no doubt that they’d made a major contribution by a step–up performance and it was accepted by her lawyers, even though it did not go to court, that the deal had to be done. Wesley ended up with a part of the copyright.
I think it was fair and it was right. In addition, the circumstances led him to believe that he should have got something. He had not impliedly consented that he had no claim to the copyright.
However, that has led to the current position in which session musicians engaged in working for bands may now commonly find a collateral agreement under which they confirm that their step-up performance will not give them a claim for copyright. In a way, it is quite important, because it avoids the settlement and chaos in the business. You don’t want arguments after every session as to whether or not a particular performance promotes copyright. But there will sometimes be clear cases where there should be recognition of copyright. I think you have to accept the fact that English courts are quite robust.
Gary Kemp and Spandau Ballet
We get to the position of Spandau Ballet. Gary Kemp said: “Oh, well, I wrote all the songs”, and three members of the band said: “No you didn’t, we all jumped together, we all made a contribution to those songs”. But there was an implicit contract in their case stating that Gary Kemp keeps the copyright to himself. And what did the judge say? “Gary Kemp’s right. I don’t accept that jamming in studio creates a copyright. I don’t accept when people sit down in studio and work the song out, that it is going to give those other musicians a claim to copyright”. Case lost.
So, the other members of Spandau Ballet get nothing. Gary Kemp gets the lot. I don’t know about all the songs, but certainly for the songs involved in that case.
Bobby Valentino and The Bluebells
So we cycle on down the road and we have the legal process at work – Young At Heart, the Bluebells. It is perhaps the most well known case, in that it was clear that there was a violin contribution by Bobby Valentino that was original and it was quite clear there was evidence indicating he would get a share of it. It seems to me that the existence of promises, the existence of a climate in which the session musician was led to believe that he would get a share of the copyright enabled or better helped the judge to come to the view that there was an original contribution to work and Bobby Valentino got his share of the song.
But it was a slightly contradictory victory because the costs were absolutely enormous and there was not much left when he paid all the lawyers. So, one has to be very careful in these cases. As a matter of principle I have no doubt it was absolutely right that Bobby Valentino should get his share of the song and that this should be recognised.
Therefore, the courts base their opinion not only on the strict copyright issues, but on the surrounding circumstances as well. Though there has to be a copyright element when you are a session musician, your strength is in your expectation that you will get your share of the copyright. Otherwise, I think it is fair enough to say that you have played your session, you have made a contribution. Why should you get a share of doing a good job, making sure that all the things sound a bit better? I think that is a fair approach.
Now the position is that a large number of contracts involved in certain kinds of session performance do normally have collateral provisions which make it clear that the fact that you are a session performer does not in itself give a right to claim copyright.
2. PANEL RESPONSE
Guy Fletcher: I am not sure I am a good example of a publisher, because I spent almost all my life as a songwriter. In fact it was my uncomfortable position as a songwriter when dealing with the majors over many issues and suffering the vicissitudes of the way the copyright is stewarded and payments made that caused me to set up my music publishing company, MCS, five years ago (which was set up to be a more writer friendly organisation than most other publishers).
I do come as a writer as well as a publisher. I am not sure I agree with James. Everything you’ve said was true, in a way, but I don’t think there has been much of paradigm shift. I don’t think much has changed over the years. I think decisions of the kind in Gary Kemp’s case were perfectly justified. As it turns out, Gary’s songs are being covered constantly. For instance True has just been recorded again by Paul Anka in a big band swing version that has absolutely nothing to do with the original recording. And to think that somebody other than the writer would benefit from the ownership of that copyright, to me is not correct.
I think there are many cases where people do make a significant contribution. It is hard to argue against Bobby Valentino making a distinctive contribution to Young at Heart, but I think these are decisions that have to be made on a commercial basis.
What constitutes a copyright? As far as I am concerned, it has always been that a song is a melody and a lyric. To me that is a copyright. You can arrange it in a thousand different ways.
On the other hand, I do believe passionately with the paradigm shift that is taking place, that more people want to piece of the action in songwriting than ever before. Nowadays, as a publisher, I have to put an artist together with a producer and with a lyricist and somebody who will actually do some electronics, and all of them want to be involved in the ownership of a copyright.
This is a commercial decision, not a musical decision. I do see that there is a very good reason to make commercial decisions at the time of recording, in almost every case. I have sort of developed an agreement for the Academy, (hopefully to be published by the end of this year), called the Rolls and Rewards Agreement, which I believe, the industry needs
When people come into a studio, I think it is important to record who actually wrote the song and who is going to get a writing credit. Notwithstanding the actual authors of the song, other important contributions to the recording should be noted and, potentially, income to that song in this version should be shared with those people who make a contribution. I think all that has to be recorded and decided on the day. It is a nightmare, because what normally happens is that people come out of woodwork and cause this argument: “I made the contribution to that song”; “I was a drummer on that session…”
I do agree that commercial decisions have to be made very early on and people who do make a significant contribution, like Baker Street (if everybody wants a ring tone from Baker Street, they will certainly want that sax solo), justify a good argument to be rewarded, though not with the ownership of copyrights, but with some income.
There is a very big distinction here and this is something we have to get very clear: ownership of copyright is one thing, but sharing the income of the copyright is something completely different. That could be a quite simple commercial decision.
Keith Harris: Last year I went to a songwriting awards ceremony, and a friend of mine who is a publisher picked up the award for a song. Afterwards, I said to him: “Oh, congratulations for getting the award”. He said to me: “Keith, this song has got more publishers, than it has notes!”
Terry Gregory: I think I agree with Guy to a certain extent, that there is a fine distinction between what you deserve, i.e. income versus rights. I think when I started, we were happy just to get a session and we did not feel we were in any position of authority or power to negotiate some kind of rights.
The rates were worked pretty much by our wonderful Musician’s Union (MU); they were sacrosanct. That was all you got and in some cases I remember sessions where you had to show up and sign a clip board and they gave you your expenses in a little brown envelope. You felt you had no power or authority to do anything else other than take the deal that was offered. Nobody was offering you any more money and rights were never really discussed.
The thing about session musicians is that you don’t know the nature of your contribution before you actually make it. You can’t enter an agreement before you’ve actually played anything. And in a modern world you don’t know whether anything you’ve played is going to be used in another way after you left the studio. It is really difficult to work any of this out. There is a quote: Thou Shall Not Steal. Mostly, session musicians spend their time learning to be a better session musician, making music and getting a foothold in the industry. They simply do not have any time to think about the business side of the music industry.
We know two words, (music industry), but most of us, especially my students, are only interested in the first word (music). It is only recently that people realise there is a lot of money at stake. One of my colleagues, is a highly successful session guitar player who played at Live Aid and has recorded with many greats including Madonna. I asked him: “Are you making any money?” He replied; “Well, everybody is making money, there is so much money that it really does not matter about the copyright. Nobody is asking any deep questions about the copyrights. Everyone is happy with the share of what they get”.
Another session musician, Neil Murray, a great rock bass player who’s played with White Snake, Black Sabbath and Brain May, recently recorded in a studio and there was one track on the album for which everybody was credited. That is how they solved the problem. They were perfectly willing to recognise that all the musicians contributed in some way to the performance. They were not sure how to qualify or quantify that, so divided it equally.
James was talking earlier about the clear distinction as to what records used to be, which were simply a recording of a performance, but that has changed in the modern world. Nowadays we are not always recording a performance, we are making a record. There is a clear distinction between these things. As I said earlier, it is very difficult to know when you perform, what is going to happen to that song.
Finally, it is also very difficult to define the difference between creative input – how do you know that what you have done is memorable – and how much of a contribution it has made to the track. I guess, that is why people like James are in business – to help us sort those issues out.
David Stopps: One thing we need is certainty, and the manager’s job at the time of the recording is to create that certainty. Record companies, publishers, managers and artists need to know where they are. We do not want court cases coming out of the woodwork every time we have a hit. It’s important and I think and it is the manager’s job to make sure that everybody is clear about where they stand on this.
Generally speaking we get session players in, we ask them to play a particular part and if they end up writing something extraordinary, then obviously, they will participate in the composition copyright. But if they just play the part that we asked them to play, that wouldn’t happen.
It gets a bit cloudy when you ask them to play a solo. Generally speaking, I would say that they wouldn’t participate in the composition of the copyright in a situation like that. Performers and session players do get public performance income on the recording side. I feel very strongly that they should be credited, and that they should have moral rights.
As Guy said, in the old days a song was 50% lyric and 50% melody (the milkman has to be able to whistle it, that is the melody). And that is still fundamentally true. But because modern production has introduced so many elements, often, it will be agreed at the time that other members of the band, for example, will participate in the composition of the copyright if they contributed.
One band that I managed had one writer, yet the whole band obviously contributed to the recordings. They agreed that the writer is the person who has the publishing deal (100%) and he would actually share it with his four-piece band. Had anybody left the band, they would forfeit that income straight away. That seems to be a very fair situation.
Evelyn Glennie: I should clarify that I come to this discussion as the first ever solo percussionist and perhaps my compositions are leaning more towards the media aspects, such as TV and radio. I am not really known for compositions that are performed on a concert platform.
From my perspective a performer’s perspective – firstly, it is quite interesting for me because there has never been a solo percussionist before who earns their bread and butter touring around the world having to commission pieces of music by our living composers. Secondly, we are in an interesting time with percussion because we are part of this explosion because we still don’t know what the ultimate size of the Marimba is going to be. We still do not know the ultimate size of a vibraphone and we have not yet reached the pinnacle of what percussion can produce.
Therefore, as a performer I am very much involved with the composer. More often than not, they will give me the skeleton of the piece and I basically have to direct the composer in order to tell them how best it is going to work on the instrument, perhaps what they should be writing for the instrument etc. Because unlike the piano or violin or cello, the composers ask me, “What size of marimba do you have”? They are not going to ask, “What size of piano do you have”? Therefore, there is a lot of input from myself as the performer but also from myself as composer. Again, very often, the composer may write for the instruments in a way that can be pretty obscure, to the point that it may not be possible to play what has been written.
Therefore, I feel my contribution as the composer is quite significant. Also bear in mind that I improvise all of my cadenzas and these cadenzas are also recorded and transcribed by other players who want to use the same cadenza.
That is interesting, because as far as I am concerned I did not receive any type of payment as far as contribution to this particular composition. I am happy for the composer to be given the credit as long as I am given the credit, and the cadenza or contribution in some way or another is written on the CD sleeve or in a concert programme. I am happy with that.
However, I do have the situation whereby my sound is quite distinguished and that is an interesting point because anyone can strike a drum, or play a cymbal. For me the distinction of what I do really comes through improvisation; it comes through the translation of a score as opposed to interpretation. I am interested in interpretative aspects of the score and not simply translating that score and there is a big difference there. We haven’t reached the pinnacle of percussion playing; we haven’t reached the pinnacle of how instruments are constructed.
You may have 10 percussionists lined up playing exactly the same piece of music or you may have ten completely different approaches to that piece. And I don’t mean that he is playing a bit slower or a bit faster or a bit softer. I mean the instrument set up can be quite different. Examples to this are numerous. The most played percussionist in the world gave me a score to play. When I received the score I said to him, “Hey, how about using these instruments or perhaps these types of gongs will work better than the cymbals you have marked here”?
In the past I was just a performer, I just wanted to play those pieces and I wanted everybody to enjoy them. Now as I see myself more as a businessperson who happens to play percussion, who happens to be a musician and this is space that any young musician has to be exploding. I have to agree with David that everything has to be so certain, so clear in what the situation is actually is.
I do believe that session musicians receive an income if they are not contributing to the song. However, for a percussion player who is merely given charts or skeletons as part of their printed score, then we are doing a lot more filling and colouring in. So what does that mean? Should the percussion players get a bit morecontribution towards that piece of music? That is the question to put up in the air. I do believe that there has to be more sharing in the actual income as opposed to getting tied up with the copyright. It has to be all so clear right from the beginning.
Horace Trubridge: So much to say, so little time. It is a rather dry subject, so I will try to get it a bit more amusing. One of the things that James said was about the jazzmen who did their own interpretations. In the band I was in, there were two issues: one about session musicians; and the other about members of bands who feel left out.
You know they see a songwriter turning up in the Rolls Royce or Mezzeratti. So he is turning up in a big flashy car while they are still using the underground and certainly some very good bands like REM or U2 have dealt with these issues. They split the income; I really do think that this is the secret to longevity in the band.
I also believe, (having experienced this myself) that quite often, a songwriter turns up with something which is not good, which then and gets worked up into something very successful, and wouldn’t be very good were it not for the combination of people in that room.
In a band I was in, we did a lot of covers, although our biggest hits were songs we wrote ourselves. In those days we split the B-sides, which back then earned as much income as A-sides (which was totally ludicrous because nobody bought the single because of the B-side). But in publishing terms, you got as much for the B-side as you did for the A-side. So we would turn up for a two hour recording session and write a B-side and have a lot of fun doing it, and then split the money for that. It did alleviate some of those problems. In a large band it was difficult to say that we would split all the royalties on everything that everyone writes.
Let me just go back a little bit. First of all, you have a history about record companies and publishing companies that really changed dramatically when Beatles came along. Prior to the Beatles, you had record companies who signed artists who sang or played an instrument and they would then go and talk to their publishing friends and get the actual material, (repertoire) for them to perform (the term A&R still exists now).
The Beatles came along, blew all that away and the record company suddenly said, “We are the winners here, we sign those people who write their own material and we don’t have to go and see those people anymore”. The publishers said, “Hang on a minute, if we sign on all those people who perform their own material, then we don’t have to go and see the record companies anymore”.
The nature of the business changed but theone way it continued was that publishers still believed that the song was more important than lyric. There are still a lot of publishers who think so now.
I was a session player as well as being an artist and I have seen both sides of this. I have been in the studio with contract bands when the song is going nowhere and suddenly somebody has an idea, “You should bring in the fiddle player or something”. Suddenly everything changes and all the ideas come out because you brought this little player. You say, “Look, I have got this bit here – there are no notes”. So you’re asked tot do something and that something subsequently lifts the recording. A session musician has brought that in. That is a different role to the original session players who simply used to come in with a terrible hangover and sit down and play the music.
On the other hand, I have been there myself as a session player and I have gone to the studio and seen exactly the same thing. I have seen four or five people who frankly want to kill each other because they have been in this studio for weeks and it is terrible. I had the drummer say to me: “That’s what I want you to play”. I said: “Hey look, I can play that if you like, but I can probably do something a lot better”. He said: “Just play that!” I said: “What about my reputation? My friends, my colleagues are going to hear that. What are they going to think about that”?
He says: “If you can’t play that, we’ll get someone else”. I have been in that situation myself. We are being told what to play; we are given the dots, so no question about it. If that is what you want me to do, then I’ll take my £120 and I‘ll go. What I am leading on is that there are some session players who are hired because of what they can do. And frankly they don’t do it for £20. They do it for £1000 a day.
These people are not interested in this copyright thing; they don’t want to know about that. Their take is “Give me £1000 and I will do a job here; I will sprinkle the stardust on this record”. For them, it isn’t a mission, but for the other people it is a mission – whether or not you get £120 it is an issue.
I took a case for a banjo player. It is an interesting story. A very successful dance band in the 1990s were in the studio. They went to a pub in the break and they heard this banjo player playing a fantastic blue grass, freestyle banjo solo. They asked him to come into the studio and lay some tracks down, with the promise that they may take him out on tour with them.
So he went in and over a very vague drummer-based track he free-styled a banjo part from start to finish. It became a huge hit record. They took him on tour, they featured him in Glastonbury and they kept promising to “sort you out”. Every time he asked about money in relation to copyright, he was offered the prospect of other tours and warned not to rock the boat.
Eventually they didn’t need him for the European tour. All he got was a thank you for the great job. Goodbye. That is when he came to see me. I had a meeting with the lawyer and the band – up to this point he’d only received a session fee.
They said that they had taken his banjo part, cut it up, moved it around, sequenced this bit and sampled that, and what resulted was their creation. Unfortunately for them, I had a magazine article, in which they said that he was great, and performed the solo from start to finish in one take!
We settled outside the court. He got a hell of a lot of money. The strange sting to the story is that he never renewed his subs with the Union!
I want to leave you with an idea that is something I have been thinking for about 20 years. The idea is this: if you go and do a session and you are being paid a standard BPI rate, then I think what you should be given is music (or the drummer should tell you what he wants you to play!) because what’s been bought is your performance. And there has got to be a distinction. One thing that has not been yet been touched-on is that a session player has been hired to give a performance, not to compose anything. If that session player has been asked to freestyle, they are then being asked to make a compositional contribution.
To avoid the difficulties that may or may not occur later on, I think there should be an additional payment. A simple solution. So on top of your BPI commercial rate of, say, £200 for delivering a performance, there is another payment saying you have delivered freestyle, so here is another £200, for example. Then it is all done and dusted, because after all, there is an artist who gave you the platform to make all this money. How many albums would you sell without him? That’s the other side to all of this.
Keith Harris: Actually there is an interesting thing, which has been raised by Horace and Evelyn right at the end. I work with quite a good harmonica player who does a lot of sessions. For those who don’t know, I represent Stevie Wonder. When he is asked to do a session, it is very rare that people tell him what they want him to play. They hire him because he’s got a unique harmonica sound and possibly because he is going to come up with something, which will probably bring the song to life.
As far as I know he has never played in order to get the rights to his contribution for a harmonica part. To be fair, we never asked for the copyright credit but I don’t think he needs the session fee either.
3. QUESTIONS FROM THE FLOOR
For many musicians, it is actually more about recognition; they need a CD credit or a credit in a magazine. They don’t necessarily need the money, but it would help them in obtaining their US or UK visas.
(KH) I would like to ask Guy about how he would differentiate between copyright and income? How would people share in an income stream if they do not participate in the copyright?
(GF) I think it is perfectly possible for the owner of the copyright to look at the contribution from somebody else and say that this has been such an incredible contribution that I would like to pay you a share of my income for this version.
Unfortunately, when people are using the publishing, it is a misnomer. People say, “Give me your publishing, give me your publishing”. What they mean is that they want income, they want money. I have this argument with TV companies and film companies all the time and all those without fail say: “I need you to sign the publishing”. I have to phone them up and say it is not what you want. You don’t want the publishing. What you want is the license to use what you have commissioned in perpetuity in this programme worldwide in all media. The publishing actually belongs to us, but we’ll give you income. There is a difference between commerce and copyright.
(KH) Terry, you were talking about recognition versus money. I know that session players need the credits and certainly if you want to go to America you need to take every press cutting that has ever been which shows that you are on the record and involved in the record to allow you into the country. So, how do you see that in terms of money versus credit?
(TG) It is a difficult balance, isn’t it? Horace was talking about Union’s rates and the difficulty in getting to America. I think it is better to take the money because it is here and it is now. How are you going to police the royalties? When are they due and how long are you going to wait for that? Obviously, as a young aspiring session player you are lucky enough to get into a session on any conditions and you need studio experience in order to improve.
You can practice at home; you can jam and go to the gigs. But there is a certain different skill about being in the studio situation and everyone sharing experiences. You need to get yourself in the studio, that is an important point. You are not going to get to work with Stevie Wonder unless you have the skills. You need to be networking with those musicians so there are lots of reward systems for musicians as well as money.
If you are not rubbing shoulders with great and good in the studio, there are not many chances of you getting a session career. It is a word of mouth business, isn’t it? It is all via recommendation. So you have to go and prove your work and then other people will come and ask for you. The work defines you. If you don’t go and do the session, somebody else is queuing up to do it.
James, you have been talking about jam sessions in your illustrative keynote, you conceptualise this in the terms of Spandau Ballet with Gary Kemp going into the studio and saying here is the work, let’s play it. But I am pretty sure that in that situation if Gary Kemp didn’t go there with any fixed ideas, then if it was a genuine jam session where work is created in that environment, the copyright really was up for grabs and it will be regarded as co-writing.
(JW) I think that is right. Without going in depth in those cases, there is a distinctive feature. Gary Kemp never suggested that they would get a share of the copyright nor acknowledged that they have made a contribution. In the other situations there probably is some acknowledgement which has influenced the judge. That is a matter of evidence.
In terms of the copyright it is a matter of fact. The judge will look at whether there was an original contribution that gives this person a claim to authorship independent of or in addition to the other person who claims to be the author. In some cases the judge will be looking if there is contractual or an implicitly contractual relation. You have to look carefully into the subtlety of each case to see what influences the final decision.
(DS) I just wanted to mention about the BPI forms session players are obliged to sign. There is a good reason for them, one that ensures that a session player gets a BPI income. But has anybody read the fine print on the back of those forms? I think it probably says that a session player agrees not to participate in the composition copyright and it almost certainly says that a session player waives their moral rights.
Moral rights are the right to integrity and the right to attribution. The right to attribution means that you get the credit for that recording. I feel very strongly that every session player should get a credit for the part they played on that recording. It does not cost the manager and the artist anything to give him a credit and it can really help them with visas and other things. So there is no reason why a session musician shouldn’t get a credit. In my opinion, the BPI form needs a little revision, possibly.
(KH) The ring tone that people often use has got nothing to do with the hook or the major song. For instance if you had the ring tone for Baker Street, which part do you think it will be? I am pretty damn sure it will be that sax solo. Raphael Ravenscroft took the case on that and lost. So basically that is not his, however, that is the part that you actually use.
(HT) That one was a really bad decision – the sax solo really made the song distinctive. I think the Spandau Ballet decision was a bad decision, too.
(GF) From a songwriter point of view it was a really good piece of work. It went to number one in America, and it was not because of that sax solo, although I have already acknowledged it as a big contribution.
(DS) I must admit Baker Street is one of those songs when it comes on the radio you just have to listen to it. The song is 50 per cent and the sax solo is 50 per cent. You can’t divorce the solo from the song.
I have got family and friends working in computing and they write music software. That software belongs to the company they are writing it for because of the terms of the contract. Had they been on a different contract, the software rights would belong to them. Why does the music industry think it is any different?
(KH) It’s different because those people are employed by a company and this is in terms of their employment. The same thing goes for University contracts. If you work for University, your Intellectual Property rights, while you are working for the University, belong to the University. But they provide you with a very stable income in exchange, whereas if you are a session musician you do not get that sort of income.
(DS) Once I had an idea, I said to the session musicians: if we sell 10,000 albums I will pay them again. That sort of formulae can definitely be introduced. There is the initial payment, whatever it is now, but if a record sells more than 10,000 copies then they get paid again. If the album sells another 10,000 they are paid again.
A session player would feel much more comfortable about that and the artist wouldn’t care because if it is only a few hundred pounds, it is not a big deal.
In many artists’ contracts now you will see the uplifts in royalty depending on how many copies an artist sells. So why not translate these imaginative ideas into the contracts with session musicians?
(JW) I have a major problem with that because the cake is getting small. The music business is taking a small part of the cake. The people are selling fewer records, so people are more reluctant to share their income. The record companies are using the reduction of the cake to get greedier in their dealings with individual artists.
I think there has been a retrograde movement in the deal terms that record companies will give to the artist. They want more for less. The advances are getting smaller; the royalties are being chiselled by new formulae. The way they calculate them, the royalties are less. Who knows what the royalties are on digital downloads? There is a big problem here.
There is an interesting juxtaposition here. Just look at the classical recording contracts. Perhaps there are other business models, which exist in isolation that mainstream models could learn from. Perhaps the recording costs should include the session musicians’ costs. Is this a different model that we could learn from in other areas of the business?
(EG) Most of my recordings have been made from the position of being a classical musician. In the first few years spent building my career I had a longterm recording contract with BMG. I had a very poor contract. I was very naïve and extremely new to the business and very eager to play without looking at the small print and management could not care less.
Basically, I have not received a single penny from 21 solo recording I have made. I have actually made 22, one of them with Bjork, in which case I got royalties. And that was just for two songs!
So there you have it. I am sick and tired of the recording business as it stands at the moment when only fluff is being recorded. I think enough people have to pull out of the recording business for it to be completely rethought. I am fed up with really great musicians going in to these halls for one session to record the whole concerto.
It is just unacceptable and it bears no relation to the amount of time and effort in making the piece, no respect whatsoever towards the composer, no respect whatsoever towards the legacy that you are creating with that recording etc. I have actually pulled out of all the recording projects as they stand at the moment because I am not prepared to put my name to this kind of recording.
But we need more musicians to take the stand. Otherwise, the agents say, you have got to do the recording, you have got to be seen recording and keep your name there. No, I don’t have to do that. I just don’t. I can do other things. Music is one strand. There are other imaginative things you can do and I am prepared to take that stand.
(HT) The reason why people are obsessed with rights and royalties is because they are poorly paid. I am a big fan of Stephen King and I am going to use a bastardised saying of his and many of you might be easily offended, so please shut your ears now: Take shit in one hand, weigh your royalties in the other and see which one fills up first.
When you talk about royalties, that is what it is all about. You don’t see royalties, royalties don’t turn up. When the artist says to you that he will give you 50 per cent royalties on this, even 100 per cent, it does not matter. Even the artist will never see any royalties because they never recoup. Most artists never recoup. So when players come to me and say that they have done a royalty deal, my advice to them is: just get as much money out of them as you can now, walk away and forget about it.
Otherwise, every six months you will be wondering: where is my statement? He will ask: excuse me where is my statement? My answer would be: Well, statements, shmatements…forget about it!
We are talking these days about moving into digitalisation. If you’d start basing your whole argument on receiving regular payments of royalties from a record company or anybody else for that matter, you have lost it. What you have to do is take the money and move on. Base your whole career on that. Don’t base your career on having the rights and they might be worth a fortune in future.
What we have to recognise is that if the digitalisation is the future and, I firmly believe it is, then record companies should make changes in the distribution of income right from the beginning. The payment should change, everything should be different from the way it is now because record companies will not be dealing with manufacturing, storing, distribution, – it all changes very differently. I would start looking at different models right away.
(JW) I think you are right about it to a certain extent, but the world is moving against some aspects of the jamming sessions. There will always be a need for a good session musician, but in a digital era there are new models coming up. One of them is called a continental model; you look after your performers, you have equitable remuneration, you tax the turnover and then you redistribute the money.
I don’t want to have a go at the MU, but I think they did a rotten job on PPL income and I think performers don’t get enough out of that distribution. In continental Europe, most of the performance income is generated by the Anglo-Saxon repertoire. How much of that goes to Anglo-Saxon performers? A fair amount, because lawyers and professionals made links with foreign organisations and MU did not do that.
Secondly, and I think it is slightly unfair – the session musicians have to stand up and look after themselves. They have to try and get their own finger in the digital age. They have to create their own right, own them and directly license them and not go through the record companies. There are problems here as well. If groups of individuals get together, it is feasible. It is possible to start licensing your own arrangements; there are enough intermediaries there.
A couple of points related to the Spandau Ballet. If that case was brought now with the benefit of other cases having been successfully tried, deos the panel think the outcome might be different? Also coming back to David, you said that there were certain deals where you have given a certain amount to session musicians when sales have reached a certain level. I think it is a fantastic thing to do, but as Horace said about musicians administering the royalties, how did it work in your case?
(HT) I have already said that the whole idea for a musician to chase up his money is a nightmare.
(DS) There has been some mechanism, if the album is successful. I think 10,000. However, the mechanism would work better if the album sold 2 m copies. In those sort of cases session players should get the multiple of their original fee.
So should there be a right of audit in the session player’s contract?
(DS) I don’t see why not.
(KH) Can I just say a general opinion about the digital aspect of this? As we go forward more information is being recorded in the watermarking. There is registration now or there should be registration of all the performers, all the writers, all labels and all the copyright owners. People ought to be able to get direct micro payments for each and every sale of the music. So if your name is on it, your share of that piece of work is registered. You ought to be able to get a direct payment straight into your bank account.
Who would be the body to monitor this?
(KH) The body would be a super collection society. The databases are getting bigger and bigger: for instance, CATCO has a database with all the musicians that performed on every record going back to 1970. It is not a massive task to amalgamate that information and set direct payments.
Just to illustrate your point, Keith, BBC are very soon going to be able to account directly for every single air play, every single piece of music that‘s been used. Every track will be identified and accounted for.
(GF) Currently the BBC blanket license requires them to give the data of every second of music used by title on all the national broadcasting stations. Ninety per cent of all broadcasts in this country are done on a 100 per cent census basis. What you are talking about is correct, it is not that far away. They do it very well, a lot better than the other societies. But what Keith was talking about, that dream of all the information being watermarked into recordings was actually started about 9 years ago by CESAC in Europe, which invented a Common Information System. The problem with their system was that none of the collection societies in the world could agree on the format for the watermarking process.
(KH) I think what will happen here is the same what happened with the iPod, it will happen outside of the music business. There is the convergence between television and film and the computer industry. It will be taken out of our hands. It will actually be done by an outside force that will bring all this together and it will probably be a computer software programme because we can’t agree on the format.
(Transcribed by Oxana Chiscenco & edited by Jonathan Robinson, MusicTank July 2005)
Music business lawyer and former publishing house exec James Ware, delivered his keynote address, outlining the landmark legal cases in which musicians who contributed to classic songs in the studio managed to secure a share of the copyright (or revenue) on that song. In particular Wesley Magoogan’s successful bid to gain royalties from a track he helped Hazel O’Connor create (Will You), Bobby Valentino’s successful action over the Bluebell’s songYoung at Heart and the unsuccessful attempt by members of Spandau Ballet to secure a share of the royalties off the band’s main songwriter, Gary Kemp.
Ware’s conclusion was that success in these kind of cases depended on two things. Firstly, that the session musician or band member in question should have made a significant contribution to the actual composition of the song while in the studio. Secondly, that it was implied at the time of the
recording that the musicians would be rewarded with a royalty share for their involvement in creating the track. That implication was present in Magoogan and Valentino’s successful litigation, but not present in the Spandau Ballet case.
Ware and the rest of the panel agreed that the rights of session musicians and band members to a share of publishing royalties would vary on a case by case basis, but that the key was clarity – ensuring that everyone knew what was expected from them, and what they could expect in return, when they entered the studio.
Horace Trubridge (Musician’s Union), said that session musicians need to be clear as to whether they have been hired to ‘follow the dots’ in the studio, or whether they will be expected to add a creative contribution to the overall product. If it was the latter they could expect to, and should,
charge premium fees for their services, although it might be impractical to demand a share of future royalties when it is so unpredictable as to what contributions they will actually make or whether those contribution will make the final cut.
David Stopps (Music Managers Forum), said he felt that considering the potential copyrights of everyone in the studio is the job of the artist manager. This was particularly true in bands where certain members were the songwriters. Publishing royalty disputes frequently cause tensions within
bands, he argued, and can play a part in causing a band to split. An artist manager must find a way of carving up the publishing royalties so that everyone was happy – including those who did the bulk of the composing away from the studio, and those that added to compositions by freestyling during
Courtesy of CMU Daily, 15 June 2005.