Just for fun... songwriting... paternal rights

Copyright matters affecting music and musicians.
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retrocausality
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Just for fun... songwriting... paternal rights

Post by retrocausality » Wed Mar 13, 2013 5:20 pm

A few years ago, a close friend of mine (a drummer) started helping a close friend of his (singer-guitarist) to develop and record some song ideas that the latter had come up with on acoustic guitar.

The singer-guitarist isn't really a musician by trade, hadn't played live for years and had only ever done a handful of shows in his youth, and just had a few song ideas that he wanted to record for posterity.

When I heard about it, I volunteered to help out by playing bass for them.

His guitar-playing and singing skills weren't up to much, and his arrangements were very sketchy but he had some interesting ideas that I felt I could help develop.

My friend the drummer and I are highly experienced multi-instrumental musicians with a wealth of live and studio experience with a large number of bands, and he, like myself, has a degree in a music technology related subject.

And so we were in the unusual situation that the person bringing the initial ideas to the table was the least musical member of the band by quite some margin.

As we had a "full compliment" of musicians, we decided to go into a practice room to jam out the song ideas for a while before trying to record them, mostly due to the very sketchy nature of the ideas.

After a few of these jam sessions, we were having such a good time developing "our sound" that we decided to call ourselves a band and started putting a full set together with the intention of playing live.

Eventually the subject came up of "when we release the album, whose names will appear as having written the songs?"

It was the singer-guitarist's opinion that he was the sole writer of these songs and that mine and the drummers contributions didn't warrant our inclusion in the writers' credits.

I strongly disagreed with this judgement, based on how much work that it took for the drummer and I to turn his ideas into anything resembling songs.

I've since read about the Kemp vs Rest Of Spandau Ballet case, and was at first dismayed to find that his "acoustic guitar versions" of the songs were considered to be the finished written product, and that the rest of the band's contributions were considered to be insignificant to the paternal rights.

However, I feel our case differs to theirs in a number of ways.

Amongst other things, it was mentioned that "Kemp will have had a firm idea of how the songs would eventually sound when he was writing them" because "musical artists can hear the whole band in their minds while writing".

In the case of our band, the singer was barely describable as "a musical artist" due to his lack of experience or musical ability, and he will have been unable to "hear the whole band in his mind" as the sketches were written before the band were formed. The eventual "sound of the band" was defined by how we sounded when the three of us got together and jammed out the ideas. If the singer had been directing us to play in a certain way, fair enough, but it was quite the reverse, with the drummer and myself taking the lead in advising the singer in what sounded good and what didn't, in terms of song structure, when each of us should play or not play, and even his own guitar sounds and guitar parts.

At no point did the singer instruct either the drummer or myself to play a specific part or note.

The drummer and I added three-part harmonies and occasional question-answer parts to the vocals that didn't exist in his sketches, and in certain songs we even wrote complete new sections designed to flesh-out his ideas, which during the course of the argument he claimed were derivative of his sketch and therefore not actually written by the drummer and myself due to having the same or similar chord sequences despite having a very different "feel".

If these had been the drummer's song ideas, I wouldn't be having this conversation, as he is actually a proper musical artist and would've directed us to play the notes and style that he had in mind, but that's totally not what happened in this band.

This argument, along with the singer's refusal to attempt to develop anyone else's song ideas lead to me leaving the band, but I've since discovered that a number of the songs I helped develop have now appeared online, but with the bass parts that would've been played by me being played in the studio by the drummer instead.

The "feel" of the songs hasn't changed at all since I left, and even the bass parts to the songs are very close to the ones that I wrote (while not being exact, as the drummer's not quite at my standard of bass-playing {although he is an incredible drummer and pretty great on piano}).

Unsurprisingly, I'm not named in the songwriting credits.

Now, I don't really expect him to ever make any money out of these songs, but I was just interested in whether I'd actually have a case against him in the highly unlikely event that he should actually get signed and release these songs after the drummer and I spent so long (an entire year in the end) developing them?


Like I said, just for fun. :-)

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AndyJ
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Post by AndyJ » Wed Mar 13, 2013 6:13 pm

Phil,
I have to go out this evening so I don't have much time to devote to this right now. However take a look at a couple of cases:
Bamgboye v Reed
and
Fisher v Brooker, a decision which was appealed against by Brooker here, and then went to the House of Lords here.
They should give you a feel for where your example sits in the spectrum of collaborative authorship.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007

typonaut
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Post by typonaut » Thu Mar 14, 2013 12:36 am

You might also want to take a look at Hodgens v Beckingham.

I think the key issue I find that separates Hodgens v Beckingham from Hadley v Kemp is that in the latter the judge finds that the other musicians in Spandau Ballet were merely performing as people skilled in the art would be expected to, and that the songs would have stood in their own right with or without these contributions. However, in Hodgens the court finds that Beckingham's fiddle playing became intrinsic to "Young at Heart", to the extent that joint authorship was created.

I've found that Hodgens a bit of a difficult case to follow, since my understanding of the facts, and which I think are not discussed in the case, are that Bananarama first recorded and released "Young at Heart", prior to it being recorded by the Bluebells. I suppose what that means is that the two songs are distinct works as far as copyright is concerned.

Anyway, to get to the point, is it possible that your musically untalented ex-friend could have hummed the music, prior to your claim that you developed it collaboratively? Could he have developed it with someone else to have achieved approximately the same thing? Did you just come in and do what would have been expected of you as someone skilled in the art?

As someone who is fairly musically untalented, I understand the situation. I've been in a similar position to your ex-friend where I have relied upon others to help realise the recording of a particular piece. However, when I've written the chord sequence, the melody and the lyrics, I think I consider that I'm the one who actually authored the song(s) - despite the fact that someone added a nice guitar or bass part.

However, unlike your friend, and Kemp, I probably would have reached an equitable solution that would have enabled us to go on collaborating together (notably Kemp did have an informal arrangement with the other members of Spandau Ballet, the ending of which brought into play the action by Hadley and others).

As I think has been repeated a few times, it's worth trying to sort out this kind of detail before it gets to the point of having an argument about it.
Any comment on this forum is just banter, it is not legal advice.

retrocausality
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Post by retrocausality » Thu Mar 14, 2013 9:15 am

Thanks guys, I'll check those cases out!

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