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Thursday, June 09, 2011

Hey, That's My Line

If you follow pop music, you probably heard about the cheeky claim of the ex-beau of neo-soul sensation Adele. Adele recently released a spectacular album, 21, chronicalling a disastrous break-up. Heart-rending stuff. Adele has repeatedly acknowledged that the break-up provided the fuel for the songs. It turns out that the her previous album, 19, was also fueled by a break-up with a different beau. The cad from 19 apparently called her up and asked for a cut of album royalties, operating under the logic that since the mental anguish he put her through inspired the music, she owed him for it.

The notion that people inspire songs is not new. Carly Simon pilloried some egoist in "You're So Vain." Bob Dylan was allegedly talking to someone when he wrote "Like a Rolling Stone." Angela Bowie, David Bowie's ex-wife, claims to be the subject both of Bowie's "Golden Years" and the Rolling Stones' "Angie." On the sadder side, Eric Clapton wrote "Tears in Heaven" after a tragic accident claimed the life of his son.

We know that Adele's ex-paramour is the inspiration for 19, but could he bring a successful copyright claim? In other words, is inspiration equivalent with ownership?

In a word, no. In the majority of circuits, a putative co-author must establish two things to succeed in a claim of joint authorship. First,  s/he must have contributed something independently copyrightable to the final work. (The Seventh Circuit, in Gaiman v. McFarlane, and the D.C. Circuit in dicta on remand in C.C.N.V. v. Reid, both suggest that the individual contribution need not be copyrightable, and the Nimmer treatise is in accord). Second,  the various authoring parties must have intended both that their independent contributions be merged into a unitary whole, and that they would become joint authors.

Customary or contractual relationships might define who is an author of a creative work. While Paul McCartney has asserted sole authorship of gems like "Yesterday," it is attributed to Lennon/McCartney, and at least under U.S. law, Lennon's estate would be entitled to a cut. Ownership of the copyrighted work can be transfered by contract, and some contractual relationships allow the employer / contractor of the copyrighted work to be the de jure author.

In other situations, a contributor might do less than the creative activity which we label "authorship" under the copyright act, but might still feel--perhaps rightfully--that the contribution made was irreplacable. And these boundaries of authorship can be somewhat fuzzy. Tristan Tzara and William Burroughs, among others, practiced a method of "cut-up" composition, where source material was cut into strips and selected at random to create a poem. Is it authorship to repeatedly stick your hand into a bag of word strips and to "copy conscientiously the results in the order in which they left the bag"? Does an author who composes a work in this fashion owe anything to the contributors of the source material? More or less than Adele "owes" to the subject of her disaffection in "19"?

Recently, Neil Gaiman, Amanda Palmer, Ben Folds, and Damian Kulash set out to compose and record 8 songs in 8 hours as part of their participation at the Rethink Music conference jointly sponsored by the Berkman Center and the Berklee School of Music. They finally produced 6 songs in 12 hours, crowdsourcing the topics (or so they said during a stage show at Berklee that night). Online  contributors suggested historical figures (Nikola Tesla and Joan of Arc were central participants in two songs) or reasons relationships go bad: "One tiny thing out of place" and "because the origami" were the crowdsourced seeds for the best two offerings of the experiment.

It's hard to imagine the authors of those brief snippets successfully claiming the non-existent profits (all proceeds from the experiment went to charity), but closer calls are not hard to come by.

Cary Bonnecaze, former drummer of the band Better Than Ezra, sued for an accounting of profit based on a claim that he co-authored some of the band's compositions on the mid-90s hit record, Deluxe. Kevin Griffin, lead singer and guitarist, claimed he brought finished songs to the band, which Bonnecaze merely helped polish. The band conceded that Bonnecaze made a copyrightable contribution to the sound recordings (the audible performance of the band's music), which the court concluded was a derivative work of the songs written by Griffin. Bonnecaze unfortunately lacked evidence to show that he made independently copyrightable contributions to the underlying songs, nor was there a contract making him a co-author. Thus, he could not assert joint authorship of the songs in question.

The same goes for Adele's ex. Without proof of either a creative contribution or contractual authorship one or the other, he is out of luck.


Posted by Jake Linford on June 9, 2011 at 10:21 AM | Permalink


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@ C.E. - I love the Girl from Ipanema example. I can't track down the actual decision, but a couple of websites suggest she actually won.

@ Anon - The cut up composition is actually a little trickier. The whole work being chopped up for source material, whether it's a newspaper story or a novel, is copyrightable, but it's not clear that any two or three word snippet is copyrightable. Longer sections might be - think for example of William Carlos Williams' 16 word poem, "Red Wheel Barrow":

so much depends

a red wheel

glazed with rain

beside the white

Any four words could theoretically carry copyrightable meaning, even though titles, which are also short and often creative, by and large do not.

As to whether the end result is copyrightable, consider Tzara's cut-up poem from the link above. The example of the cut up poem is the 2d half of Section VIII. It's not composed, but doesn't appear to the eye any more random than a Pollock painting (or to the ear than an Ornette Coleman solo). But reasonable people can differ on that point.

Posted by: Jake Linford | Jun 9, 2011 5:31:17 PM

The "cut up" composition example seems different to me than the other examples that you cite in your post. In the "cut up" composition example, the source material is presumably copyrightable, but there is a question as to whether the end result is copyrightable. In contrast, in the other examples the source material itself is not copyrightable, but the end product is. No?

Posted by: anon | Jun 9, 2011 2:08:30 PM

Don't limit this discussion just to copyright. The Girl From Ipanema didn't... but then, she didn't win, either...

Posted by: C.E. Petit | Jun 9, 2011 12:35:36 PM

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