Rearranging the Roles of the Performer and the Composer in the Music Industry – The Potential Significance of Fisher v. Brooker
Intellectual Property Quarterly, Vol. 1, pp. 64-76, 2012
30 Pages Posted: 20 Jan 2020
Date Written: February 1, 2012
The composer has historically been at the top of the tree in the music industry; most royalties due to artists flow back to composers/songwriters rather than performers. Over the last few decades, the enactment of stronger performers’ rights has sought to redress this historical imbalance by providing performers with, amongst a number of economic and moral rights, the right to receive compensation for the exploitation of their performances. However, this article explores the fact that there may be cases where performers may be ‘authors’ for the purpose of copyright, as opposed to performers’ rights. Some original works of joint authorship – musical arrangements – may not have been traditionally recognised as such within the music industry. For instance, with regard to the making of arrangements by a group of musicians, it appears from recent UK case law that as long as a performing musician makes an original contribution to the creation of an arrangement, he or she will be a joint-author of the resulting work. As a result of this, the performing musician is deserving of a share of copyright in that arrangement, and by analogy, a share of licensing revenue from the exploitation of the arrangement. However, this conclusion appears to be slightly at odds with historical practices within the music industry.
Furthermore, the law in this area raises further questions concerning whether it ought to be the case that performers are potentially seen as joint authors in return for their creative contributions.
In order to assess these issues in detail, this article first outlines the concept of the musical work under the CDPA, including analysis of the distinction between the composition and the arrangement. The article also discusses the historical hierarchy of musicians in the music industry, exploring the reasons why the composer of the work has traditional received more royalties than the performer of the work. An assessment of the originality of compositions and arrangements is also detailed over the course of this article. Furthermore, in order to properly assess the issues, the important UK cases in this area are examined in this article, with a particular focus on the case of Fisher v Brooker, a case which clarifies to some degree the law on the making of musical arrangements, and which also deals with the complex licensing issues that can arise from finding that a band member is in fact a joint author of a recorded arrangement.
Ultimately, this article argues that the law on authorship and joint authorship in this area is clear - any musician who adds sufficient creative originality to a musical work during the performance and recording process is a joint author of the resulting arrangement. However, although the law is clear, the music industry practices may not take account of this. For this reason, it is important that musicians in groups place their legal relationship to each other regarding the works which result, including the terms of the distribution of royalties, in writing before they begin the artistic process.
Keywords: Composers, Copyright, Joint authorship, Musical works, Performers
JEL Classification: K00, K10, K11, K19, K29
Suggested Citation: Suggested Citation