For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

Regular round-ups of the previous week's blogposts are kindly compiled by Alberto Bellan.

Wednesday, 1 May 2013

There was always something there to remind me -- but was it protectable?

Merpel reviews her back Katalogue
This morning's edition of Metro carried an interview with Sandie Shaw, a 1960s pop star who has reinvented herself many times over the years as, among other things, a psychotherapist and a litigant. As her Wikipedia entry states:
"Shaw also embarked on a successful legal battle to establish ownership of her entire recording catalogue [no legal sources are cited for this -- can anyone supply them?], and began working with contemporary acts and producers, reworking much of her 1960s and 1980s material. In 2003, Shaw licensed her recording catalogue worldwide to EMI, continued to develop her Arts Clinic, and began executive coaching and mentoring".
The Metro article alludes to this, as the following exchange shows:
"[Andrew Williams]: Did you have problems with legal aspects of your career?

Yeah but I’ve always fought them and I’ve always won. I’d never take on anything I didn’t think I could win. I’m focused and never give up and if I don’t get what I want immediately I’ll stick at it and win in 15 years. There’s no reason for musicians to get ripped off any more. Artists now have an advantage because the middlemen have been cut out with the advent of digitisation".
From this it sounds as though Ms Shaw, now 66, has a fairly positive attitude towards rights self-management which extends from the age of analogue to the digital era.

But what set this Kat thinking was not the thought of Ms Shaw fighting to regain her catalogue. Rather, it was the Proustian recall of the song that launched her UK career back in 1963, "(There's) Always Something There to Remind Me" (here). This Bacharach and David composition has been recorded by many artists, this improbable collection including such unlikely bedfellows (metaphorically speaking) as Joan Baez, Dusty Springfield, Peggy Lee, The Four Seasons, José Feliciano, The Troggs, Dionne Warwick, Naked Eyes and Martha and the Vandellas.

Sandie Shaw
It was the Sandie Shaw version of this song that first alerted this Kat to the notion of the musical composition as the product of a formula.  A brief instrumental introduction, just long enough to give the solo voice the key, leads to the first verse which itself leads to a real earworm of a refrain; then on to the second verse and again the refrain. The band then picks up, leading with the classic knock-out combination of an increase in volume and an upward key-shift for the third and final time through.  There is no way to end such a song other than the fade-out, two minutes and thirty six seconds after those first reassuring chords.  The lyrics were also of a type: simple, subjected to a rigid scheme of rhyme and laced with such memorable sentiments such as "I was born to love you/And will never be free".

This formula, give or take a tweak or two, appears to this blogger to have been very common in the heydey of Messrs Bacharach and David. Similar in structure but lacking the key change is the same team's Twenty Four Hours from Tulsa", popularised by Gene Pitney but which gender- and location-specific lyrics that made it less suitable for endless cover versions (though this Kat is sure that Swedish singer Östen Warnerbring's "15 minuter från Eslöv" was wonderful). Curiously, both songs make reference to cafes at which the lovers practise their nocturnal dancing.

Debate continues as to whether television programme formats are, should be or could be protected under a range of laws that protect copyright, rights in reputations and fair competition.  Equally, it is generally accepted that copyright, at least, does not protect a "style" (in England and Wales there is Gordon Fraser v Tatt [1966] RPC 505, which establishes that proposition in respect of greeting cards). Yet the old categorisations of authors' works appear to have broken down after the Court of Justice in Case C-5/08 Infopaq appeared to harmonise copyright protection in respect of works which are "the author's own intellectual creation".  To what might this loose formula apply in the world of music?

There is no doubt that both the music and the lyrics of Bacharach/David songs fit within that description -- but, if we do not peg that definition to a list of recognised authors' works, what is to stop a template for a song from attracting such protection too? And is the organisation of the words and the music, in relation to the orchestration and the volume that far different from databases, under Article 3 of Database Directive 96/9, is "which, by reason of the selection or arrangement of their contents, constitute the author's own intellectual creation ..."?  No doubt there were some crafty individuals who could have taken it to the USPTO and emerged with a patent -- but that's another matter.

For the avoidance of doubt, this post is not arguing that a formula upon which songs are written either is or should be entitled to legal protection. It is seeking to express the concern that, in terms of the evolution of European copyright law and the sudden, apparently irreversible shift of legislative power away from the European Council, Commission and Parliament and towards the Court of Justice of the European Union, anything can happen -- and may well do so, given the rate of technological change which we are currently experiencing.

Sandie Shaw sings  "(There's) Always Something There to Remind Me" on YouTube here
Naked Eyes version here

7 comments:

Les Hurdle said...

Interesting use of the word 'musician' which some 'artists' try to deny those studio/musician/performers their rights

What does<> this mean?

Please post the reply.

Les

James Plotkin said...

I think it's important to abstract the lyrics from the music. While the lyrics are part of the song, they are not part of the musical composition. I like to look at lyrics as a literary work superimposed on a musical work.

While it may sometimes be relevant to look at the music and lyrics together when comparing two compositions, a finding of copyright infringement will often follow even when the lyrics are entirely dissimilar (or even if one of the compositions is instrumental).

Part B of this paper outlines what I think should be the test to determine plagiarism of a musical composition (Part A examines and critiques some of the existing analyses in the U.S.):

http://www.michbar.org/it/pdfs/vol30_2.pdf

(Begins on p.3)

Cheers!

IP Dragon said...

In 2002 in the Netherlands, the Hoge Raad (Supreme Court) in the 'Una Voce Particolare' case (http://zoeken.rechtspraak.nl/detailpage.aspx?ljn=AE8456) decided that television formats can be a work within the meaning of article 10 Dutch author's right (http://wetten.overheid.nl/BWBR0001886/geldigheidsdatum_02-05-2013)

Consideration 4.14 "(dat het format/programma-voorstel als werk in de zin van artikel 10 Aw. kan worden aangemerkt.(..)" 'Una Voce Particolare'case.

Cheers,
Danny Friedmann

Anonymous said...

Ms. Goodrich's success was quite a feet...

Tom said...

The lack of understanding displayed by this article is amazing.

The Commission is an executive, not legislative, body. The European Council is a non-legislative decision-making body, comprising EU heads of state. The legislative bodies are the Council of Ministers and the Parliament. So at least you got one right.

The idea that "legislative power" is shifting from the legislative bodies to the Court of Justice is also very confused. The legislative bodies legislated and the Court is interpreting that legislation. It's as simple as that.

What seems to have happened is that some lawyers convinced themselves those laws hadn't in fact been harmonised, and are now surprised when the Court confirms that they have been. They need to wake up, and learn a bit more about how the EU works.

Pro-feline said...

Tom, has the IPKat really and truly amazed you? Perhaps it is you who should wake up.

This is what the European Parliament has to say about the Council, on its own website at http://www.europarl.europa.eu/aboutparliament/en/006ff89b2c/Introduction.html:
"The European Parliament shares legislative power equally with the Council of the European Union". Later on in the same page it adds: "A Member of the European Parliament, working in one of the parliamentary committees, draws up a report on a proposal for a ‘legislative text’ presented by the European Commission, the only institution empowered to initiate legislation."

It looks like the Council and the Commission are not so disconnected from EU legislation after all.

And does the Court of Justice really not make law? Where, other than in CJEU judgments, will you find the proposition that the failure of a parallel importer to notify a trade mark owner of its intention to import repackaged pharma products is a TM infringement? It's not in the CTM Regulation and it's not in the TM Directive.

Tom said...

Pro-feline, you seem to have confused the European Council with the Council of the EU (aka the Council of Ministers or simply the Council). It's pretty easy to get them confused, with such similar names.

The Commission is involved in legislation. As the executive it proposes legislation. But it is the Council and Parliament that actually legislate. That's why an EU Directive is called 'a Directive of the Council and of the Parliament'.

The Court of Justice interprets legislation, in accordance with the Treaties, ensuring legal concepts are given uniform meaning throughout the EU. In so doing, it could be said to make law to an extent. But it doesn't make legislation.

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