It's about time to give the music producer her/his copyright due

Kat friend Dr. Aleksandra Sewerynik shares her periodic insights on copyright in the recording industry, this time in connection with the rights of the music producer.

Every songwriting process is a different story. You can get a closer look at it by watching ‘Diary of a song’ by The New York Times on YouTube, and documentaries such as Ed Sheeran’s ‘Songwriter’, or Shawn Mendes ‘In Wonder’. But all these stories have something in common. Nowadays, the song is usually composed using samples and artificial instruments.

This aspect of creating music is the domain of the musician called the music producer. His instrument is a computer with appropriate software. With access to the sound library, he has millions of possibilities to choose from in determining what the song will be like. But are music producers treated equally with other songwriters? Do they receive the royalties? Unfortunately, it's not so obvious.

Let’s have a closer look at the whole songwriting process. Firstly, musicians usually create the lyrics and vocal melody of the song, often with the help of the guitar or piano. These instruments also allow establishing the chord progression. Then, the melodies and chords can be recorded with traditional instruments by a record engineer or fixed using simple keyboard, computer and artificial instruments. These tracks are finally mixed with sound effects, loops, beats or other samples picked or fixed by the music producer. The author of the lyrics and melody often closely cooperates with the music producer to harmonize the final effect.

It is worth noticing that the record engineer, who also stays by the computer or console in the studio during the songwriting process, has another role. He manages the technical aspects of recording vocals and natural instruments' lines (for example, guitar or piano). By preparing the recording space, he allows the artist to be spontaneous. Thanks to his work, the musicians do not miss any idea, melody or chord progression that appears during songwriting session. Still, the work of the record engineer is of a technical nature.

It should be clear from this the extent to which the songwriting process is a collective endeavor these days, and how important the role of the music producer is. But how do the copyright provisions play out?

To be considered a co-author of a musical work, a person must make a creative contribution of an individual nature to the work. However, such contribution does not have to be significant, valuable, substantial, characteristic, or recognizable for the average listener. Moreover, the contribution of a co-author does not have to be independent in the sense of being suitable for separate exploitation. For instance, the instrumentation would be a contribution that has no independent meaning, but yet could be considered a creative contribution to the musical work.

It seems obvious that a music producer's contribution, as described, meets all the above criteria. Unfortunately, at least in the current moment in Poland, e.g., it is not that simple. Often the music producer is treated as a craftsman, who does his job and must be satisfied with a one-time remuneration. As such, music producers are denied the status of co-authors of songs and therefore have no right to receive royalties, which are paid only to the authors of the lyrics, the vocal melody, the chord progression, and the melody of the guitar riff.

It is true that it is difficult to fix, using traditional music notation, the sounds of artificial instruments or sound effects chosen by a music producer. But they can be fixed in the recording which can also be registered with a collective management organization. The form of expression of the intellectual creation is not taken into account in determining copyright protection. That is why nontraditional forms of expression should not be the reason for denying the rights of music producers. Their contribution is crucial for the final version of the song, enabling us listen to it on streaming platforms.

Currently, a case may reach the Polish Supreme Court (a cassation appeal has been filed, but the Supreme Court has not yet decided whether to accept the case), in which the author of the entire arrangement of the song was not recognized as the co-author by the Court of Appeal. The judge ruled that the music producer created only a derivative work because lyrics and vocal melody could constitute a separate work.

In this author's view, if the music producer participates in the composing process, even if the work has several versions in the meantime, he should be considered as a co-author. However, if a music producer engages in a separate, independent process of creation, he/she should be recognized as an author of the derivative work. The clearest manifestation of the unity of the creative process is the cooperation in creating the final version of the work, based on mutual exchange of comments, guidelines, acceptance of stages of the creative process and versions of the work.

It’s worth noting that, in the Polish system, the author of an original work decides whether the author of a derivative work receives any royalties. That is why there is a huge difference between the situation of the co-author of the song, who has the right to royalties proportional to his contribution to the song, and the author of a derivative work, who must ask the author of the original work for the right to receive royalties, regardless of the significance of the creative contribution by the author of the derivative work.

If a song becomes popular, the monetary stakes can be large! Nota bene, in another case, the court of first instance will consider whether a music producer, who was excluded from those entitled to the payment of royalties, should have been treated as the co-author of a popular Polish song.

These rulings may significantly impact the music industry. As it stands, authors are today divided into two classes: the "upper" class, those who create the melodies and lyrics, and the "lower” class, who are responsible for the sound of the song. Let's see whether music producers will be treated equally to other songwriters, and thereby share in any success in the music to which they have contributed.

The picture on the upper right is by Louis Wain and is in the public domain.

The picture on the lower left is by Fred Lyon at fred@fredlyon.come and is licensed under the Creative Commons Attribution-Share Alike 3.0 Unported license.