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Copyright and the future of music

  • Writer: Nikkie Kitching
    Nikkie Kitching
  • Aug 7, 2019
  • 6 min read

Today's generation loves to create. Be it Instagram content, a new YouTube video or a mashup of songs. Music in particular has always played a huge role in the creative industry.


As a lover of music myself I’ve often found that a lot of the music these days have the tendency to sound quite similar. Don’t get me wrong; I do love me a bit of Rihanna now and again but there’s no denying that to an older ear, her songs may sound very similar. This is most likely down to artists keeping up with new trends and producing an overall sound that today's generation enjoys. In addition, it also shows a transition from using less musical instruments and more beat compositions. With more millennial music being composed through computers this begs the interesting question, “Where do we draw the line at copyright in music?”


Let's break it down...

The copyright laws in the UK fall under the current law of Copyright, Designs and Patents Act 1988. It is a right that automatically arises when a person creates an original and unique piece of music. However, in order to prevent another person from stealing your work, it is good practice to obtain protection. This is especially important in the event of infringement. Once an artist is protected, copyright in the UK can last “70 years from the end of the calendar year in which the last remaining author of the work dies”.


However, as with any law that is passed, there is always an exception to the rule. In terms of copyright, there is a doctrine called "Fair Use". Fair Use allows you to use another person’s work without the means of infringing; meaning that they do not have to go all the way to the original author to ask for permission. For example, if a student were to use a song as a means of research or if a news company uses clips of an upcoming film as a means of advertisement.


Copyright case studies: Music in the UK

The UK is known for producing some of the world’s greatest artists and songs; from Queen’s “Bohemian Rhapsody” to Adele’s ‘Hello’. With millions of songs produced it’s common for artists to sample other pieces of music. As stated previously, they would need to gain permission from the original artist.


1. The Verve: “Bitter Sweet Symphony”

Those familiar with British pop culture will recognise the song “Bittersweet Symphony” sung by lead singer of The Verve, Richard Ashcroft.


Those who have listened to the song will recognise the violins playing in the background for the first few seconds. This is sampled by a composition written by Rolling Stone members Mick Jagger and Keith Richards “The Last Time” (orchestra version). Rolling Stones' manager, Allen Klein, sued the Verve for using more than a small sample of the composition. After much disagreement the royalties were given to Klein's publishing company, ABKCO.


It was only this year that Jagger and Richards made the recent decision to pass all rights to Ashcroft. This was because the rights of the sample were not fully cleared before the song's release, meaning that it wasn't clear who was credited for it. As it stands, this copyright dispute it is the longest in history, lasting 22 years.


2. Ed Sheeran: “Thinking Out Loud” and "Photograph"

With chart-topping hits like “Shape of You” and “A Team”, Ed Sheeran is another artist that needs no introduction.


One Ed Sheeran hit which sparked news in the IP world was “Thinking Out Loud” where Sheeran was accused of copyright of Marvin Gaye’s song “Let’s Get It On”.

Lawsuits were filed by Structure Asset Sales (who own part of the copyright) and the family of Ed Townsend (Townsend being a co writer of the song). They cited similarities in elements such as melody, harmony and bassline.


'Photograph' is another Ed Sheeran song that found itself in the midst of copyright. 2012 X Factor winner Matt Cardle released a song entitled 'Amazing' to which its original songwriters Thomas Leonard and Martin Harrington sued Sheeran. They stated that ‘Photograph’, which was released two years after 'Amazing', had a similar ballad structure. The chord structures were sent to the court and were deemed “instantly recognisable”.


Whilst the case of ‘Photograph’ was settled out of court, “Thinking Out Loud” is still in dispute to this day. Although Sheeran is a UK artist, it will be down to a US court to make the final decision. Under their law they would need to prove that there was an actual copying of work and that the copying is "substantially similar". Recent news states that the case has been postponed until Led Zeppelin's "Stairway to Heaven" copyright case is resolved .


What does the future hold for copyright in music?

With technology making an ever-present feature, artificial intelligence has made waves throughout recent years, particularly when it comes to music.


An article published by the British Phonographic Industry entitled "Music's Smart Future" teaches us the effects of AI in music. With streaming sites like Tidal and Spotify we are beginning to make music more personalised and creating playlists based on the sounds we enjoy. AI is currently being utilised by Spotify to ensure that the music played for us is based on our preferences as listeners. Google Play has gone a step further as their AI looks at patterns in location and weather to decide which song should be listened to at that particular moment in time.


As AI is still young in age and development, it begs many questions relating to copyright. A piece of music of course belongs to its creator but one recurring question is if AI composes, who will have ownership? The existing law in the UK teaches us that if there is an invention or work that is generated by a computer, then the author is the person who has made the necessary arrangements for work to be created (S9 CDPA 1988). However, it carries on and states that something that is "computer generated" is work where there is no human author (S178 CDPA 1988). If there is no human author, how will we be able to determine who created the piece of music?


Let's say AI were to produce a piece of music that shared the same notes of an existing song. Most people would assume that the person who created the AI software would be responsible for infringement as AI wouldn't have the capacity to know which song it is copying. If this were taken to litigation, they would need to prove that the person who developed the specific AI had copyrighted the song and this can of course be difficult to prove. Furthermore, as AI starts to become more autonomous, it will be difficult to point fingers at the AI creator themselves.


What further complicates things is that there are currently tech companies who are branching out into AI and music; some with more than one creator. One example is that of Warner Music who have recently partnered with Endel which is an app that produces music via AI. What poses complication is that there are six employees who are responsible for creating music. Another example is AIVA, a startup company based in Luxembourg. Amongst the company employees are classical musicians who work with AI to create music. They combine theory of music along with algorithms to create music.


Final thoughts

It has been the dream of millions to become a famous musician or composer. And with these dreams come the purpose of creating music that is unique and powerful. Whilst the world of music is using technology for the better; one can’t deny that music requires a human touch. We all have songs that stay with us and evoke human emotion. Love, happiness and nostalgia. Something that AI will find hard to replicate. It will be down to technology companies to strike a balance between the implementation of AI and giving the artists their spotlight.


At the present time, the difficulty that many artists face is the number of songs out there. What we can learn from the case studies above is that artists will need to do their research before composing a song that they deem to be theirs.


With its unpredictability we would need to delve further into what AI can offer us and then work our way up from there. When it comes to proceedings, the courts would need to determine the relationship between AI, its creators and the final musical piece. Perhaps a new type of contract would need to specifically state who is the author of an AI composed piece in the event of infringement.


It’s the classic "man vs machine" concept; not necessarily the idea of pitting one against the other but rather how both can work in harmony (pun definitely intended).

For more information on copyright and music, check out the following links below:

 
 
 

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