Skopelja, Stefan --- "The Boundaries of 'Authorship' and 'Performance' in Musical Copyright" [2015] UNSWLawJlStuS 4; (2015) UNSWLJ Student Series No 15-04

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THE BOUNDARIES OF ‘AUTHORSHIP’ AND ‘PERFORMANCE’ IN MUSICAL COPYRIGHT

STEFAN SKOPELJA

INTRODUCTION

In the March 2013 issue of art+LAW, the Arts Law Centre of Australia described musical joint authorship as ‘where things get tricky’ before stating the ‘general consensus’ is that the composer of the chords and main melody owns the copyright in the music.^[1] Despite the colloquial tone, the description is correct on both points. In musical copyright cases brought in the United Kingdom, courts have struggled to formulate consistent principle or policy when asked to solve questions of collaborative authorship and outline the distinction between authorship and performance. The decisions camouflage the ‘trickiness’ with snap pronouncements (‘having heard the piece played ... I conclude...’^[2]) or insist the question is a mere finding of fact,^[3] obscuring the problematic historical and conceptual assumptions brought by judges and musicology experts.

This essay will explore the cases which have had to draw lines between authorship and performance, contributions which are ‘of the right kind’ and contributions which aren’t. I will begin by summarising Hadley v Kemp, ^[4] using it to introduce the salient issues my essay addresses before moving to a broader analysis of the case law. I will divide my analysis into three sections. The first two will assess the case law from a principled perspective, while the third will consider the practical difficulties judges face. I will argue that the language of ‘performance’ and ‘authorship’ is not a normatively justified distinction, but rather a problematic product of history, economics, jurisprudence and culture. While judges play a role in preserving these problems, we must look to their broader context to properly understand what they are and how best to respond.

HADLEY v KEMP

Hadley v Kemp was a dispute brought to the High Court, Chancery Division in the United Kingdom between the members of pop group Spandau Ballet. Due to its legal significance and the convenient way it canvasses a diverse number of legal issues, the case is a good microcosm of the copyright problems within collaborative musical authorship. I will be using this case as a pivot to illustrate, by example, the key terms and concepts relevant to my area of enquiry before discussing the principles, history or case law more broadly. For some, ‘it represents a whole-hearted endorsement by the High Court of the traditional ... dichotomy between authorship and performance’^[5] and as such is a useful introduction.

The case was brought on a number of grounds, but here I will only address the copyright claim.

The copyright claim concerned authorship of the music of Spandau Ballet’s first five albums and whether the plaintiffs – vocalist Tony Hadley, drummer John Keeble and multi-instrumentalist Steve Norman – should be acknowledged as joint authors. The defendant and recognised author, Gary Kemp, was the guitarist, lyricist and ‘composer’ of the band’s material.^[6] He was described as the band’s ‘most influential member’.^[7] While a number of the issues are not confined to any song in particular, parts of my essay will be devoted to the discussion of ‘authorship’ and ‘performance’ regarding the song ‘True’.

The copyright claim was argued in two ways: the first argument was that the songs were works of communal joint authorship; the second argument was that each plaintiff^[8] had a claim to joint authorship based on their individual contributions.

Ultimately, both claims were rejected. In rejecting them though, Park J’s reasoning provides a useful case study of the troubling musicological assumptions courts bring to questions of composition. The first argument I will use as a basis to discuss the significance of the ‘work’ concept in UK decisions, whereas the second argument provides a platform to explore how contributions of different band members and instruments are construed.

ANALYSIS FROM THE PERSPECTIVE OF THE ‘WORK’

The first copyright claim posited in Hadley v Kemp was that authorship subsisted because the band as a whole authored the disputed works. That is, ‘Kemp came along with the bare bones of a song, but ... thereafter all the members of the band contributed’ to create ‘a whole new song of which they were all joint authors’.^[9] What Kemp came to rehearsal with may or may not have been copyrightable works themselves, but the works relevant to the case were separate. While the conclusion is satisfying on the facts,^[10] Park J was forced to consider when and why copyrightable ‘works’ first emerged and whether the other members of Spandau Ballet ever sufficiently changed them in a legally relevant way. Such ‘work’ based thinking also has a profound effect on the individual contributions of the plaintiffs, discussed later. ^[11]

I opened the essay with the ‘general consensus’ that authorship lies with the composer of the chords and melody. This is an attitude reflected in Hadley v Kemp. When considering whether Spandau Ballet, as a band, recorded works different to the works created by Mr Kemp at home, Park J said ‘I do not believe that the theory can survive the evidence. When Mr Kemp presented a song to the band the melody was complete, the chord structure was complete ... and the structure of the song from start to finish was already laid out.’^[12] Such statements point to an essentialist attitude towards music based around melody and chord progression, diminishing the role of other musicians, sound engineers and producers. This attitude is also seen in other UK decisions of the time. Williamson QC stated in Bamgboye v Reed that ‘to me the melody line might seem to be the most important part of a piece of music’;^[13] Mummery LJ uses as an example ‘changes to the melody and harmony of the underlying work’ when illustrating the ‘appropriate or relevant’ expenditure of skill to create fresh musical copyright;^[14] Patten J, against which the prior appeal in Hyperion v Sawkins was brought, stated that ‘nothing less than significant rearrangement of, or significant addition to, the melody will create a new copyright’.^[15] Further indicia is found looking at the decisions of cases based on melodic claims: in Godfrey v Lees, when assessing the songs ‘Song for Dying’ and ‘The Sun Will Never Shine’, Blackburne J found that the piano accompaniments, though ‘straightforward and largely repetitive’ in one and ‘extremely straightforward’ in the other, were ‘significant features of the recording’ and sufficient for joint authorship;^[16] Floyd Q.C. likewise found in the affirmative for a violinist claimant, despite the defendant indicating to him the country style, chords and rhythm;^[17] Fisher v Brooker , in a judgment again given by Blackburne J, also accepted an organ solo as a ‘melody in its own right’ sufficient for joint authorship.^[18] Even in a case where a drummer’s claim was recognised, Morison QC said ‘whilst a player of tuned percussion might be more readily recognisable ... than a drummer ... it would be a misinterpretation ... to reject [a drummer’s] contribution in principle’ (emphasis added).^[19]

Most interesting however is contrasting the reasoning in three of the above cases – those I characterised as ‘melodic claims’ – with the reasoning in Hadley v Kemp. In Godfrey v Lees, the piano part was sufficient despite its straightforwardness and repetition. These were at least part of the reasons Mr Keeble’s drumming did not suffice for joint authorship. In Beckingham v Hodgens, the violinist’s contribution was enough despite Hodgens instructing what style he wanted. In Hadley v Kemp, Mr Kemp’s control and instruction were used as factors to diminish the creative originality of Mr Keeble and Mr Hadley. Finally, in Fisher v Brooker, Fisher was found to be a joint author for an organ solo written to align with the rest of the song whereas, despite the separateness of Mr Norman’s saxophone solo, its continuity with the rest of the style in ‘True’ was decisive against him.

Though the case law provides ample evidence for the privileged position of melody, harmony and chords, it is also instructive to consider why this is so. A useful summary is that, as Barron argues, ‘adjudicating in copyright disputes is a matter ... of defining property rights in objects that will figure in market transactions’.^[20] As such, precedent has developed to favour the types of musical contributions which operate most efficiently and most saliently in a marketplace – those which can be notated and sold. ‘Words, chords and melody are those aspects most easily written down, ‘frozen’ as a way of proving authorship ... developed by and for the European art music tradition’, and as such have been the ‘operative way that composition [has been] defined’ despite reflecting how ‘only a small part of the world’s people create music’.^[21] In concrete terms, it was the rise of a ‘mass market for sheet music’ as ‘the middle classes bought pianos’^[22] that prompted the legal development of a distinction between the ‘work’ which was then ‘performed’. This is particularly interesting when one considers Hyperion v Sawkins. Dr Sawkins, a professor, was recognised as an author for creating legible notation of music hundreds of years old by reproducing damaged or lost sections of music, rewriting the source material into conventional modern notation and making corrections where necessary.

As a corollary to the above, it is unsurprising elements of sound unable to be recorded in writing and distributed have been diminished by copyright law. These include ‘nuances such as timbral variation, rhythmic articulation, pitch gesture and arrangement’ which are ‘at least as, if not more, important’ in oral culture.^[23]

This framework of ‘work’ and ‘performance’ thus informed judicial thinking and persists today in two ways: one, by diminishing what could not be reduced to material form; and two, by emphasising what could at the time. Drum tablature or saxophone soloing can, and do,^[24] fit into a sheet music economy, but only in recent times. Their chance to enter into legal principle passed. As a result, ‘work’ and ‘performance’ thinking has struggled to incorporate contemporary and 20^th century musical practice. The ‘distinction presumes ... a stable object, the text of the play or song, which varies only in performance’.^[25] However this is challenged by genres where the work and the performance are indistinguishable. Within jazz, ‘rather than respecting the work, the jazz player transforms it into his or her own creation, which is the performance’.^[26] Similarly, ‘rock ‘n’ rollers increasingly “wrote” their song in the studio’,^[27] where composition occurred simultaneously with and indistinguishable from performance. Likewise, in a case study of Otis Redding’s cover of ‘Try a Little Tenderness’, Bowman argues that Redding, through oral aspects such as timbre and vocal dynamics, creates ‘the illusion of no demonstrable distance at all between singer and song’^[28] and that ‘meaning exists within the musical event rather than solely within the musical work’.^[29] Blues, with its history of region-specific styles and sounds, also blurs the boundary between work and performance – a boundary which increasingly looks like a historical artefact of one culture (and not just one culture as whole, but one culture at one particular time) who happened to be the first to apply copyright jurisprudence to music.

This historical backdrop to authorship helps us understand the decision in Hadley v Kemp, as well as the other cases cited, a little more easily even if it does not reveal any consistent principle. Authorship thinking developed alongside ‘work’ thinking, and such ‘work’ thinking was based around an economy where ‘there was more money to be made from sheet music sales than there was from the sale of records’.^[30] At the time, this meant melody, harmony and chords. Those three became embedded within judicial thinking, with little reference made again by the case law to their historical origins.

ANALYSIS FROM THE PERSPECTIVE OF CONTRIBUTION

Even if it is not conceptually satisfying, one could nonetheless accept a distinction between composition and performance if there were clear legal methods to distinguish the two. In Hadley v Kemp, the ‘crucial expression is “a significant and original contribution to the creation of the work”’,^[31] with the test carrying an ‘echo’ that the contribution be of ‘the right kind of skill and labour’.^[32] The language of performance appears here, invoked as the reason why something is not of the right skill and labour.

However, despite the appearance of objective language – performance is a discrete, normatively defined category and not a matter of judicial opinion – there is no clear indicia outside of a subjective, aesthetic judgment. This leads to clear inconsistencies when Hadley v Kemp is looked at more closely.

As an aside, upholding this distinction gives the curious result that courts are ‘unqualified’ to address ‘what is music?’^[33] but perfectly qualified to address what the different constituent aspects of music are.

The first challenge to an already shaky line occurs in Park J’s rejections of Mr Keeble’s claim. Park J claims that John Keeble, a ‘sensitive and accurate drummer’ and ‘excellent though [the drumming] was’, contributed to the performance and interpretation but not the creation and composition of the song. The drum part brings out ‘the rhythm or groove which ... runs through the song’ but does not ‘exhibit creative originality’.^[34] For Park J the ‘essential content of the rhythm and groove was apparent’ already in Mr Kemp’s singing and playing on the acoustic guitar.^[35] As asked by one commentator, ‘what drum parts was John Keeble ‘interpreting’ when Gary Kemp hadn’t composed any?’^[36] Even if we do grant a distinction between composition and performance, suggesting that the elements of drum performance already exist within the melody of an acoustic guitar and vocals pushes it a step too far. Ultimately, such unconvincing characterisations – especially when compared, as earlier, to the different conclusion reached for the comparable melodic contribution in Godfrey v Lees – resembles the accused ‘poverty of Western thinking about rhythm, coupled with common prejudices and stereotypes about popular culture’ that ‘obscures the diversity and role of rhythm in rock music.’^[37]

However, the greatest inconsistencies emerge in the section dealing with Steve Norman’s claims. Mr Norman contributed saxophone solos to a number of songs. One of particular importance was his solo in ‘True’, lasting thirty-five seconds and totalling just below nine percent of the song, described as ‘exactly what was required’ but not ‘particularly memorable, tuneful or original’, being ‘in essence a fill’.^[38] According to Park J, the solo(s) ‘included elements of a performer’s creativity’ but ‘did not significantly change the songs’ (including ‘True’).^[39] This is a difficult proposition to accept for a number of reasons.

The first is, as already mentioned in the previous section, the incongruity between the finding here and the contrary finding in Fisher v Brooker. What’s interesting to note is that in support of his finding, Park J’s cites the saxophone’s historical role in jazz improvisation.^[40] Exactly why a saxophone section is regarded as ‘in essence a fill’ whereas an organ introduction isn’t is unclear, but given the references to jazz and improvisation, it coheres with the previous discussion of melodic authorship as an exclusive group founded in an accident of history.

This then reinforces the same doubts about construing ‘performance’ raised in my discussion of Mr Keeble’s drumming. Park J, who held that Mr Norman’s saxophone solos (in songs other than ‘True’) did not form significant parts in the works, accepted the evidence of an expert musicology witness, Mr Guy Protheroe. These solos were ‘not in themselves particularly memorable, tuneful or original’ and were ‘the sort of thing which any accomplished professional saxophonist would have provided’.^[41] They filled gaps or played short phrases ‘reflect[ing] to some degree the basic melody’ and consequently, much like the drums, are legally no more than emanations from a skilled performer based off Mr Kemp’s work. As one commentator observes, ‘by the standard applied by the judge, Charlie Parker would have been struggling to come up with a saxophone solo which would have entitled him to be considered a joint author’.^[42] This appeals to an unconvincing distinction between the essential compositional elements of a song and the mere ‘interpretation’ through performance by other musicians. Similarly, it leads to the result ‘that the 16 bars of notes comprising the saxophone solo have no author at all or that their author was Gary Kemp’.^[43] Again, contrast this with how melodic contributions were more positively regarded in Fisher v Brooker or Godfrey v Lees despite playing an ancillary role to the rest of the piece.

The second reason Park J’s proposition is difficult to accept is if we consider a thought experiment about the saxophone solo in ‘True’.^[44] The first aspect of the thought experiment is whether the saxophone solo would have been a copyrightable work if it stood on its own. If it would, which is the likely answer,^[45] it is difficult to see why its inclusion as part of a bigger work affects this. The second aspect is if we consider a hypothetical saxophonist playing, note for note, Mr Norman’s saxophone solo, i.e. not infringing any copyright in the sound recording or any performer’s rights. On Park J’s conclusions this would not be infringing copyright as the solo is not a ‘significant part’ of the work, but it is unconvincing to think a court would make the same finding in an infringement context. But even if we resolve this difficulty by holding ‘substantial’ and ‘significant’ part to be different thresholds, we’d be left with the unsatisfying result that our hypothetical saxophonist infringed Gary Kemp’s copyright – who did no more than leave a space for Mr Norman to dutifully fill with a solo. Whilst this analysis brushes over the legalities very quickly, the experiment is useful for illustrating the trouble with Park J’s approach.

ANALYSIS FROM THE PERSPECTIVE OF FACT

The hypothetical above raised the possibility that if the facts in Hadley v Kemp were brought in a different context, such as copyright infringement of the saxophone solo, the reasoning may have developed differently. Ideally, this should not be so and principle should be unwaveringly consistent. However, there are some practical difficulties that complicate matters. Thus, before I conclude, I will discuss some of the considerations that went into deciding Hadley v Kemp, as well as other cases, in order to contextualise the variety of factors that need to be accommodated by judges, but struggle to fit under the existing legal headings. Judges do not decide in a vacuum and are often constrained, and these constraints need to be recognised to properly adjudicate from where and why the above problems occur.

One major factor is the twofold difficulty of bringing musicology to a courtroom. Building on the brief history described in prior sections, Shepherd describes how the ‘academic discipline of musicology’ itself has tended to think of music ‘in terms of the reduction of its sounds to the conditions of visual notation’. For Shepherd, this ‘invariably’ means music, in the theory, becomes synonymous with classical music.^[46] This problem then translates over to judges, who are unable to challenge expert witnesses. For example, it is demonstrative to see how often Park J speaks of Mr Protheroe’s evidence in terms of unquestioned declaratives, such as ‘Mr Protheroe said’, ‘Mr Protheroe demonstrated’ and ‘Mr Protheroe did not consider’.^[47] Likewise, Bently notes this ‘uncritical deference’ to Mr Protheroe consequently leads to inadvertently adopting some musicological ‘prejudices’ that ‘reflect classical musicology’s ideology of the romantic author’.^[48] Guy Protheroe was also an expert witness in Godfrey v Lees, Beckingham v Hodgens and Sawkins v Hyperion. Blackburne J, who decided Godfrey v Lees as well as Fisher v Brooker and Coffey v Warner,^[49] studied music in the 1960s at Cambridge University, leading Bently to speculate that he ‘may have introduced similar ways of thinking’.^[50] While it is only speculation, it bears some credibility considering the ways these cases have been decided. Challenges in musicology, thus, also present challenges in copyright law, and it is hardly surprising this confusion at the base level manifests into legal chinks when judges have to navigate unfamiliar disciplines and uncertain factual scenarios.

In addition to the above point, whether musicological ideas need updating or not, legal procedure often constrains proper exploration of these problems. On appeal from the High Court, Chancery Division, Hodgens was refused permission to appeal ‘against the judge’s finding of fact on the issue as to joint authorship’.^[51] This is not the only case to explicitly state that authorship is considered a finding of fact.^[52] When combined with the law’s historical bias towards particular musical conceptions, such procedural obstacles make challenging the above assumptions or reaching conclusions more adapted to modern practice significantly more difficult. This holds not just for counsel, but also for judges who are limited to existing precedent and jurisprudential thinking about music. Judges may simply be working with the limited tools their roles afford them.

And in looking at the economic and social influences on a judge’s thinking, one final note needs to be made about the role of performer’s rights. ‘It is only in the last 130 years ... that technology has been developed that has allowed performances to be exploited’; prior to that, performances did not live beyond the audience’s memory.^[53] As a result, a separate set of performers’ right emerged which may adequately protect the interests of studio musicians and band members regardless of whether the court construes them as joint authors or performers. Similarly, the existence of performers’ rights may be dulling any judicial motivation to challenge these frameworks. In the context of the UK legislation^[54] (which is what affects all the cases spoken of), performers are protected in a similar way to copyright holders ‘in relation to the exploitation of their musical performances’^[55] as well as holding non-assignable moral rights.

However, these rights fall short in two respects. The first is that the protection afforded to them is shorter than the protection afforded to a copyright owner. Whilst copyright lasts seventy years after the life of the author, performers’ rights last only fifty after the date of the performance.^[56] The second, more crucial, respect is that performance is not protected against imitation in the same way as copyright in the musical work. As Bently points out, ‘if a contribution is regarded merely as part of the performance’, as has been looked at in this essay, then ‘no permission ... is needed when a person subsequently performs or records their own version of the song’.^[57] As such, recognition as the joint author of a musical work carries a greater scope of protection for a musician’s contributions to a band. The potential difficulties (and absurdities) this can cause were explored in a previous discussion about the copyright over Mr Norman’s saxophone solo, as part of a larger musical work, resting with Gary Kemp.

CONCLUSION

Throughout this essay, I have been critical of how judges understand and characterise contributions in music which aren’t melody, chords or vocals. I have looked at cases that expressed, to varying levels, a ‘hierarchy within popular music, with vocalists and guitarists at the top, followed by bass players, and, at the very bottom, lowly drummers’.^[58] However it would be a mistake to interpret me as criticising the judges themselves; more importantly, I have attempted to locate their thinking and decisions as part of a rich tapestry which weaves in issues of musicology, cultural privilege, historical accident and legal procedure. Contemporary judges alone can hardly be blamed. In addition, there are a number of practical difficulties in resolving the matters brought to them.

Beyond this, musical copyright may be building on shaky foundations. Collaborative authorship is having similar troubles in other areas. Authorship itself is a ‘shifting concept that is sensitive to context’,^[59] adding to the difficulty for judges, academics and legislators alike to find a normatively satisfying and circumstance-transcending ideal. It is perhaps not a coincidence that the problems contemporary musical collaboration causes (in terms of moving away from a single, central author) are also mirrored in the large and diffuse amount of ‘authors’ in scientific collaborations.^[60] While it is in some ways easy to find problems and throw stones, it is the judges who have to face these realities armed only with the limited weaponry of the common law and a doctrine of precedent that must be upheld. For these reasons I, in part, soften my judgments and ‘cast the veil of philanthropy over others’.^[61] Nonetheless, such problems will exist for as long as we hold on to historically-informed conceptions of authorship and continue trying to shoehorn in modern evolutions.

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^[1] Isabella Street, ‘But we both wrote that! The complexities of musical joint authorship’ (2013) art+LAW March Issue 1, at p 31.

^[2] Beckingham v Hodgens [2002] EWHC 2143 (Ch); [2002] E.M.L.R. 45 at [50].

^[3] Ibid, at [49]; Stuart v Barrett [1994] E.M.L.R. 448, at 463; Hadley v Kemp [1999] E.M.L.R. 589, at 642.

^[4] [1999] E.M.L.R. 589.

^[5] Richard Arnold, ‘Are performers authors?’ (1999) 21(9) European Intellectual Property Review 464, at p 464.

^[6] I put composer in speech marks here because the term, for reasons my essay will explore, is troubling. I use it flippantly to mean he wrote the melodies and designed the structures of a vast majority of Spandau Ballet’s output.

^[7] [1999] E.M.L.R. 589, at 594.

^[8] While he did make a claim (ultimately rejected by Park J), my essay does not explore Tony Hadley’s contribution.

^[9] [1999] E.M.L.R. 589, at 645.

^[10] For the argument to have succeeded, Spandau Ballet’s composition process of ‘True’ would have had to mimic a ‘jam session’ which was far more freeform and organic. The accepted evidence was that, at all times, Kemp had a preconceived structure for the song and exercised control over its development.

^[11] Though it falls slightly outside the scope of this essay, it is worthwhile to mention that the case perhaps ought to have been decided on the basis of copyright in a new ‘arrangement’. This was the approach taken in Beckingham v Hodgens (see n.2) and Godfrey v Lees [1995] E.M.L.R. 307, with some commentators noting this might have affected the outcome (see n.5). The reason the argument does not appear is uncertain.

^[12] [1999] E.M.L.R. 589, at 645. I have omitted from this quote that ‘the rhythm or groove was apparent in the song presented’. This is because, in the original context of the quote, it is easy to read Park J’s list and infer that the rhythm or groove was already created. It wasn’t until Mr Kemp collaborated with the drummer, Mr Keeble. However, Park J later argues that despite Mr Keeble’s role he did no more than bring out, on the drums, a beat and rhythm implicit within the melody and chords. This is a far more contestable proposition and will be properly dissected elsewhere.

^[13] [2002] EWHC 2922 (QB) at [72]. In fairness to her Honour she does accept ‘other aspects, such as the rhythm, and the drums ... will have a great deal of importance and perhaps equal’, but this is qualified by saying ‘in the dance industry’. Thus, it still points to a situation, when music is taken broadly, of melody occupying a privileged position.

^[14] Hyperion v Sawkins [2005] EWCA Civ 565, at [41].

^[15] [2005] RPC 47 at [54].

^[16] [1995] E.M.L.R. 307 at 328.

^[17] See n.2.

^[18] [2006] EWHC 3239; [2007] E.M.L.R. 9 at [37].

^[19] [1994] E.M.L.R. 448, at 460.

^[20] Anne Barron, ‘Introduction: Harmony or Dissonance? Copyright Concepts and Musical Practice’ (2006) 15(1) Social and Legal Studies 26, at pp 46-47.

^[21] Rob Bowman, ‘The determining role of performance in articulation of meaning: the case of ‘Try a Little Tenderness’ in A.F. Moore (ed) Analyzing Popular Music (Cambridge University Press 2003) 125, at pp 129-130.

^[22] Jason Toynbee, ‘Copyright, the Work and Phonographic Orality in Music’ (2006) 15(1) Social and Legal Studies 78, at p 82.

^[23] See n.21.

^[24] By this I mean you can visit any music shop and find such books.

^[25] David R Shumway ‘Performance’, in B. Horner & T. Swiss (eds), Key Terms in Popular Music and Culture (Blackwell, 1999) 188, at p 189.

^[26] Ibid, at p 190.

^[27] Ibid, at p 191.

^[28] See n.21, at p 128.

^[29] Ibid, at p 125.

^[30] Ibid, at p 108.

^[31] [1999] E.M.L.R. 589, at 643.

^[32] Fylde Microsystems Limited v. Key Radio Systems Limited [1998] F.S.R. at 457.

^[33] Lord Reid in George Hensher Ltd v Restawhile Upholstery (Lancs) Ltd [1975] RPC 31, at [45].

^[34] [1999] E.M.L.R. 589, at 648.

^[35] Ibid.

^[36] Dominic Free, ‘Beckingham v Hodgens: The Session Musician’s Claim to Music Copyright’ (2002) 1(3) Entertainment Law 93, at p 96. Richard Arnold also makes the same point with a little less rhetorical flourish, stating it is difficult to see how mere ‘interpretation’ can be applied to a musician who creates his own part: see n.5, at 468.

^[37] Theodore Gracyk, Rhythm and Noise: An Aesthetics of Rock. (I.B. Tauris, 1996) at p 149.

^[38] [1999] E.M.L.R. 589, at 650.

^[39] Ibid, at 649.

^[40] Ibid.

^[41] [1999] E.M.L.R. 589, at 650.

^[42] See n.36, at p 97.

^[43] Richard Arnold, ‘Reflections on The Triumph of Music: Copyrights and Performers’ Rights in Music’ (2010) 2 Intellectual Property Quarterly.

^[44] I am indebted here to the ideas of Richard Arnold, see n.5 from p 468.

^[45] Observe, for example, the four bar ‘Kookaburra sits in the old gumtree’ which was the subject of a copyright dispute in Larrikin Music Publishing v EMI Songs Australia [2010] FCA 29.

^[46] John Shepherd, ‘Text’, in B. Horner & T. Swiss (eds), Key Terms in Popular Music and Culture (Blackwell, 1999) 156, at p 161. The debate obviously runs far deeper than this one excerpt from Shepherd, but it will do to illustrate the point. Further reading that classically-influenced musicology fails to properly accommodate contemporary music practice can be found in Lionel Bently, ‘Authorship of Popular Music in UK Copyright Law’ (2009) 12(2) Information, Communication and Society, pp 179-204; David Horn, ‘Some thoughts on the work in popular music’, in Michael Talbot (ed), The Musical Work: Reality or Invention? (Liverpool University Press, 2000) 30; Jason Toynbee, ‘Musicians’, in Simon Frith and Lee Marshall (eds), Music and Copyright, (Edinburgh University Press, 2^nd ed, 2004) 123.

^[47] For this point, see Richard Arnold’s discussion in the paper cited at n.44.

^[48] See Bently in n.46, at pp 193-194.

^[49] Though unused, this was another case decided on a performance/composition dichotomy, this time in relation to vocals: [2006] E.M.L.R. 2.

^[50] See Bently in n.46, at p 194.

^[51] Hodgens v Beckingham [2003] EWCA Civ 143, at [3]. The rest of the appeal was heard on estoppel.

^[52] See n.3 for other examples.

^[53] Owen Morgan, International Protection of Performers’ Rights (Hart Publishing, 2002) at p 3.

^[54] Copyright, Designs and Patents Act 1988 (UK).

^[55] See Bently in n.46, at p 182.

^[56] See n.54, at s 191(2). This is also the position of the Australian legislation for sound recordings, see Copyright Act 1968 (Cth) s 248CA(3).

^[57] See Bently in n.46, at p 183.

^[58] See n.36, at p 93.

^[59] Daniela Simone, ‘Recalibrating the Joint Authorship Test: Insights from Scientific Collaborations’ (2013) 26(1) Intellectual Property Journal 111, at p 115.

^[60] Ibid, at pp 117-118.

^[61] Immanuel Kant, Ethical Philosophy: the Complete Texts of Grounding for the Metaphysics of Morals, and Metaphysical Principles of Virtue, Part II of The Metaphysics of Morals (James W. Ellington trans, Hackett Publishing Company, 1983), at p 132 [trans of: Die Metaphysik der Sitten (first published 1797)].