Giving Credit Where Credit Is Due (or Demanded)

Last week22I only read to the story today because I read The Tennesseean. Is it normal for a newspaper to sit on an AP feature for over a week? Also, the story was about songwriting, and there are lots of songwriters in Nashville—you know?—so why doesn’t The Tennesseean do a little original reportage on an issue affecting an industry in its backyard?, the Associated Press reported, “More and more, artists are giving credit” to the writers of pre-existing songs “in the wake of the ‘Blurred Lines’ case.” The main point of the article was that songwriters are taking a more cautious approach when they know they have at least been influenced by a particular song and have been giving credit to the writers of the older songs to play it safe. As evidence, the article cited the addition of the Gap Band’s “Oops Upside Your Head” to “Uptown Funk,” the addition of the massively awesome Tom Petty and Jeff Lynne to the credits for Sam Smith’s “Stay With Me”—completely justified, in my view—and the addition the two songwriting dudes from The Fray to the credits for The Chainsmokers’ “Closer” (a song I have never listened to until just now).
That’s hardly overwhelming evidence, particularly since at least two of the additions were really settlements of legal claims before litigation.23While it’s 100% true that Petty handled his and Lynne’s dispute with Sam Smith & Co. with tremendous public class, there was still a legal threat behind it. Petty can just make a legal dispute sound like just a misunderstanding amongst friends. I don’t know how the Chainsmokers dispute was resolved, but I doubt it was purely voluntary.
Songwriting credit is a big deal because it’s how songwriters get paid. Royalties for a song are divided among the songwriters according to the percentage of credit they’re given.24Note: The songwriters often do not own their share of the copyright in the song, so the royalties would actually go to the songwriter’s publisher, and thence to the songwriter (after the publisher has taken its cut). It’s an anachronistic system that should just die already. Thus, in the case of “Stay with Me,” there were previously three songwriters with equal credit, so each received one-third of the royalties. Once Lynne and Petty were added, it was agreed that they would each get one-eighth credit, so now the three originally credited songwriters get 25% of the royalties and Lynne and Petty each get 12 1/2% of the royalties, which sounds about right.

Encouraging (and Discouraging) Creativity

More seriously, some of the songwriters interviewed for story—in particular Jake Gosling (currently suffering under one of the Ed Sheeran lawsuits) and Diane Warren25Warren has written a HUGE number of songs with for a WIDE variety—including the great Taylor Dayne!—but I don’t think I could recognize a single one. By the way, Warren’s legal understanding of the “Blurred Lines” case is completely wrong.—feared that “Blurred Lines” and the current lawsuits against Ed Sheeran would discourage songwriters from writing songs. Songwriting is already a pretty marginal (financially) activity to begin with, and it may not take much discouragement to drive many of them from the field—to everyone’s detriment.
If “Blurred Lines” is just causing some hit songs to add songwriters, and some older songwriters get a modest new revenue stream, then fine. But if “Blurred Lines” is causing fewer songs to be written, or discouraging the next great songwriter before she can get started, then that’s not fine. I’ve already expressed skepticism that “Blurred Lines” will have any real lasting effects. But let’s say you’re concerned enough about this to want to change copyright law. From a policy perspective, your real problem is that there’s not only no way to measure how good songwriting is—so you can’t know whether you’re witnessing a decline in songwriting quality—but you have no idea what the optimal number of songwriters should be.
This is a problem with all of the “creative” copyright-oriented industries. (I think the software industry operates differently from the rest.) Copyright law attempts to create a kind of free market by discouraging free-riding (i.e., cheap copying of others’ creative output) to the point that creators have enough incentive to invest a career in a creative field.26If copyright law disappeared tomorrow, people would still paint, write songs, etc. They’d just paint/write/etc. far fewer of them, they’d be of lower quality, and only elites or those with elite backing could afford to do so seriously. Like anything else, creativity benefits from practice, so you want people to make a living from creative endeavors so they are creative full-time. I should also think that capital-intensive creative productions—e.g., big-budget movies—would cease altogether. But that’s about all we know about it. We don’t know how much incentive is optimal. If we strengthened copyright laws a little, would increase the quality of artistic production, or would it just make some cats fatter? And if we strengthen it too much, do we risk harming creativity too much? We could end up with a bunch of rent-seeking copyright owners who essentially tax all creative output—but without enriching our culture.

Borrowing Is Normal But Not (Legally) Normalized.

The two songwriters interviewed for the article might know very little about the legal framework within which they’ve been operating, but they do understand that creativity usually exists in a tradition. They have to build on the past, and that risks “taking” from specifically past compositions.
The best legal defense against this is to show that what you took wasn’t original to the underlying song, but is part of a kind of songwriter’s toolkit. Walking basslines belong to everyone. The problem is proving this. Since originality in the underlying composition is typically presumed27If the underlying composition was registered with the U.S. Copyright Office within five years of publication., the burden is on the allegedly infringing songwriter to prove non-originality. It’s not impossible—you need an expert who can show that the element in question was commonly known at the time the underlying composition was made—but it’s neither cheap nor foolproof. The issue often goes to the jury, and juries… well, you know.
Part of the problem is that, while a registration creates a presumption that the entire song is original, it also vouches for the originality of the constituent elements. Which can lead to absurd results. If you wanted to focus some kind of reform somewhere, that might be where. For example, we might change the law so that a registration creates a presumption in the originality of only the work as a whole, but not necessarily of its constituent elements, and thus put the burden on the copyright owner to prove originality. Just throwing that one out there.
Another part of the problem is that copyright lasts for a long, long time. And while we might be happy that a copyright owner can continue to license an entire work for a long time, it might be appropriate if some of the elements in that work were allowed to enter the public domain, so other songwriters could use them without fear of being sued.

Creativity = Protectability = Creativity

Songwriters need to be careful, though. By asking what part of a song is worth protecting, we’re also asking what part of a song is creative. When you say, as Warren does in the article, that the “production” isn’t something that should be protected, she’s also saying that “production” (whatever she means by that) isn’t creative. Some folks involved in production might disagree.28Indeed, if she means what I think she means—that the way a composition sounds when performed—she’s basically saying sound recordings aren’t worth protecting. In that case, A LOT of folks will disagree. But if you think a certain element of a song—rhythm, basslines, and other non-melodic features—you’re also saying they’re not creative. Maybe they aren’t—maybe they’re part of the songwriter’s toolkit—but you need to be sure you really believe that. And be willing to forego asserting any right over those elements.
Thanks for reading!

Rick Sanders

Rick is an intellectual-property litigator. He handles lawsuits, arbitrations, emergency injunctions and temporary restraining orders, opposition and cancellation proceedings, uniform dispute resolution proceedings (UDRPs), pre-litigation counseling, litigation avoidance, and other disputes, relating to copyrights, trademarks, trade secrets, domain names, technology and intellectual-property licenses, and various privacy rights. He has taught Copyright Law at Vanderbilt University Law School. He co-founded Aaron | Sanders with Tara Aaron-Stelluto in 2011.