Since the lock-down/Covid-19 pandemic, I have had five or six complicated queries from colleagues (musicians and ballet teachers) because they think I know something about copyright. The thorniest issue is that of cover songs on ballet albums. Unfortunately, just as there were many lawyers who said they weren’t going to be drawn on planning law in relation to Dominic Cummings’ cottage on his parents’ estate because it’s just too complex, the only thing I know about music and copyright is that it’s a minefield, and that the whole nature of licensing and the music business and distribution platforms and formats is changing so fast, that whatever you knew last year probably doesn’t fit 2020 .
What follows below started off as an email to the few colleagues who’ve asked me questions recently, but it got too long, and went into areas that may not interest them. I thought that if I posted it here, there’s a chance I might get some responses from others with advice, experiences, insights, corrections, or further questions, so here it is. Please add questions/comments using the comments box below the post.
Joanna Demers covers cover songs
On the back of my last post, I ordered Joanna Demers’ book Steal This Music: How intellectual property law affects musical creativity . It’s mainly based on US law and cases, but I think a lot of the principles are international. I’m fairly certain that she’s solved the question I’ve been asking myself for years, as to whether the kind of arranging that you do for ballet class albums constitutes a derivative work, and hence an infringement if you don’t apply for permission to the publisher. This is the kind of backroom conversation that my colleagues and I have had for years: you wonder whether cutting a couple of beats of the end of a phrase to make it square for ballet, or turning something from three into two or vice versa, constitutes more than a cover version. That’s the problem for us—we work in this weird corner of the musical world where we don’t exactly want to cover a song, we want to get a cookie cutter and make identical biscuits out of the phrases. I have applied for permission in the past, but as time went on, I simply became very cautious about what I did with songs, and whose songs I did it with, and just paid for the MCPS licenses.
From what Demers says (there’s a whole chapter on arrangement) the nature of the Compulsory Mechanical License (i.e. the obligation of the publisher to enable you automatically to cover a song through a collecting society such as the MCPS provided it has already been recorded once) is that it allows you to make an arrangement of the song, though without changing the lyrics, or substantially changing the melody. The wording of the US 1976 copyright act is that a compulsory licence (the compulsion being on the side of the publishers to grant it, remember, for the requisite fee) entails “the privilege of making a musical arrangement of the work to the extent necessary to conform it to the style or manner of interpretation of the performance involved.” (Demers, 2006, p. 39)
“Remarkably,” Demers continues, the compulsory license for music allows for both considerable similarities and considerable differences between an original and a recorded arrangement. . . Courts have traditionally interpreted this clause liberally to allow for substantial disparities between an original and its arrangements” (Demers, 2006, p. 40).
The only reason that you would need to apply to the publishers would be if you intended to change the lyrics, or change the melody so much that it’s unrecognizable, wanted to publish the arrangement in notation, and/or claim a proportion of royalties for the originality contained in your work—i.e. if you wanted to actually argue with them that it was a derivative work, rather than a cover version. The chances of you convincing a publisher to give you a percentage are pretty slim, if not non-existent. This, Demers says, is why so many arrangers looked to the classical/public domain works to make arrangements from—all the albums that jazz players made of jazz standards resulted in no song royalties for the performers.
I have no idea, but I’m guessing that there may have been a fruitful negotation between Joby Talbot and the White Stripes when he arranged their songs for Wayne McGregor’s Chroma. But for you and me making a mazurka out of a Madonna song for a ballet album, I don’t think the publisher would answer the phone, let alone consider giving us a proportion of the royalties. I’m interested to know how easily EasySongLicensing could get a print licence for such an arrangment. They promise access, for a fee, to their “‘little black book’ of protected industry contacts” and in my experience, that’s often the only way you’ll ever get a music publisher to pick up the phone, unless they forgot to disconnect it.
The upshot of all that I don’t think any ballet pianist needs to worry about infringing copyright as long as they obtain the MCPS licence and credit the original songwriters. I even suspect that some of the people that I’ve spoken to in the past at publishers have themselves been hazy about the difference between arrangement that needs permission, and one that can be considered a cover under the terms of compulsory licence. One delightful VP of an American publishing company, when I was fretting about having put a dominant-tonic ending onto a song that in real life faded out, said initially that she couldn’t see it as a problem. But a moment later she said, “though, actually, he [the composer] can be quite fussy sometimes. I’m not sure, to be honest.” The problem here was that this was during my RAD days, so we were also publishing the sheet music. For sheet music, the arrangement does have to be agreed by the publisher, with the relevant copyright notices etc.
D’Almaine v Boosey: Hooked on classics c. 1835
One of the earliest copyright cases that might have some bearing on ballet albums (D’Almaine v Boosey ) involved Musard’s creation of quadrilles and waltzes based on on themes from Auber’s opera, Lestocq . It’s a different kind of case, in that here, the defendant had made the arrangements without the permission of the publisher, and was trying to claim that making tunes suitable for dancing needed considerable skill, and thus what he’d done did not constitute piracy (i.e. he could sell the dances as his own work). The plaintiff’s experts argued that any variation in the melody was a constraint of the quadrille or waltz form, and not down to creative originality. The judge found for the plaintiff, noting that any layperson could easily recognize the original melody: adapting it for a dance made no difference to the original subject. Moreover—ballet pianists take note!—whereas it took a genius to construct the original melody, “a mere mechanic in music can make the adaptation or accompaniment” [d’Almaine [1835, p.123, cited in Barron 2006, p. 121). As Jane Ginsburg adds, commenting on the same case: “If the second author is a genius-free mechanic, in other words, if he is not really an author, then he can be an infringer” .
In the end, although I’m sure that a case from 1835 is not going to have much bearing on a ballet album made in 2020, this seems to offer a reasonable answer if you’re asking yourself whether what you’ve done constitutes a cover that doesn’t stray too far from the original. If it’s so far from the original that a layperson couldn’t tell that it was the same tune, then you’ve overshot. But then, what would be the point of doing that anyway, if no-one would recognize it?
Cover songs on ballet albums in the age of the YouTube ballet class
I’ve gone down this particular rabbit hole because a dance teacher recently rang me up saying that she wanted to use some recordings on her YouTube channel, and wasn’t sure whether she was entitled to or not, or how—if she used music from a ballet class album—the pianist or copyright owners of any covered songs would be recompensed.
If you want a similar case, I think you would have to look to Joe Wicks’ PE classes, which, despite being incredibly popular, didn’t use music due to copyright restrictions—until George Ezra piped up and said, hey, use mine! The reporting here is a bit hazy, because it says that Ezra has “become the first to allow Wicks the use of his material for free.” It’s hard for me to imagine what the process is behind the this, and how many people apart from Ezra had to be involved in the agreement. A friend has pointed out, however, that the undocumented issue in the press reports of this feelgood story is that as soon as you use copyrighted music in a YouTube video, the copyright owners automatically get 100% of monetization. In Joe Wicks’ case, he was donating his income from the channel to the NHS, so presumably the problem was not so much in obtaining or clearing music for the channel, but preventing the income from being diverted to songwriters. That will also be a problem, presumably, for the teacher who wants to make money out of their classes: Content ID should fix the issue of using copyrighted music, but it will effectively stop the teacher from making money themselves. Presumably, a kind-hearted pianist could offer a royalty split to the teacher after the fact, but it would have to be a private arrangement, not a question of button-clicking yet.
Whatever the background process, as far as musicians are concerned (i.e. ballet pianists, in this case) it seems to me there cannot be any hope for anyone being recompensed if performers don’t obtain the relevant licenses when they release albums—and by that, I mean registering their own work as much as obtaining licences to perform anyone else’s. What’s more, with regard to cover songs, it appears that the compulsory licence is not applicable in retrospect if you went ahead and released cover songs without getting a licence in advance. In other words, if you release an album without getting your MCPS licence, you can’t apply in retrospect, without, I guess, trouble or money changing hands.
Another awkward question: what about moral rights? It’s a pretty unlikely scenario, but stay with me for the sake of the principle—a pianist makes a cover of Tiny Dancer, which Elton John has not authorized Donald Trump to use in a campaign, and then a pro-Trump ballet teacher does a class in a MAGA hat and a stars-and-stripes leotard, using the pianist’s cover version, and uploads it to YouTube. I have no idea what happens then, or which organization or individual is responsible for what, and what action, if any, any of them would be in a position to take.
And finally—what about Zoom?
Zoom raises a whole load of other questions—as a friend has pointed out, there doesn’t seem to be any way of remunerating songwriters/composers for works that are performed or played back during a Zoom class. OK, so you’re only teaching 30 people at a time, for what could be construed as educational purposes (though ballet teaching only rarely meets the conditions necessary to be considered educational). What if your hours or numbers increase? What if you’re charging for classes? If this was the bricks-and-mortar world, you’d be paying around 1% of your turnover for the use of the music. You might be clocking up more views cumulatively on Zoom than you’d get on YouTube. I don’t know the answer, but I think the performing rights organizations (PROs) publishers and platform providers are going to have to work this out sooner or later.