Music whose creator has been dead for more than 70 years is free for anyone to use. With newer music, you have to consider copyright. In the Netherlands, we have a lower limit for copyright protection, Leuyerink says. “Banal or trivial products are not protected. This also applies to melodies. Creative melodies, on the other hand, are protected. Especially in pop music, people often use banal melodies. In a YouTube video, the Australian band Axis of Awesome demonstrates perfectly how the same four chords are used in numerous pop songs. As long as the result is a banal melody, there are no copyright issues. The situation is different when it comes to more complex melodies that do require creativity on the part of the maker.”
Perverse incentive for profiteers
This fact notwithstanding, copyright lawsuits are increasingly being brought over banal or trivial elements such as the groove or melody in a song. For example, singer and songwriter Ed Sheeran recently won a court case against the relatives of Ed Townsend, co-composer of Marvin Gaye's Let's get it on. Ed Sheeran is said to have based his Thinking out loud on it. Roma recounts: “That case ended well for the music industry. If banal and trivial melodies are protected, it is not good for artistic freedom. Plus it creates a perverse incentive for people who want to profit from someone else’s success. In such cases, copyright defeats its purpose. Two fundamental rights are at stake here: the right to protection of intellectual property on the one hand, and the freedom of the arts on the other. It is important to create the right balance between the two.” Ed Sheeran threatened to stop making music if he was found guilty. A clear statement he fortunately does not have to follow up on.
Sand in the gears of music
The rise of AI may once again throw sand into the gears of music. Or is the situation not so bad after all, when it comes to copyright? Consider for a moment Heart on my sleeve, a new song created entirely by AI but with generated voices from The Weeknd and Drake. Leuyerink explains that copyright may also apply in this case: “While the lyrics and melody are new, the input used – namely songs from the artists in question – is not. This input is protected by copyright. To create this AI-generated song, copyright-relevant acts were carried out. This does presumably constitute copyright infringement.”
No rights for your voice
What about when someone imitates your voice? Isn't that like portrait rights where you can sometimes veto the use of your image? Leuyerink: “I understand the reasoning behind it, but neither copyright nor portrait rights offer a solution in this case. They are two different things, each with their own background. The background of portrait rights has traditionally been the protection of privacy. Over time, performance protection was added to it as an additional concern, or protection from free-riding on someone's popularity. But a voice is not protected by portrait law, since that only covers images. Copyright, in turn, protects creative, intellectual creations. Your voice is not your creation; you are born with it.”
This article was inspired by the lustrum festival Radboud Sounds.
Text: Pleuni van Keulen for Radboud Recharge. Photo: Ivan Jermakov via Unsplash
Radboud Recharge: the Sound of Summer, playlist
This summer on Radboud Recharge: the Sound of Summer. Featuring five articles on music, approached scientifically. And with a playlist on Spotify: Radboud Recharge: the Sound of Summer. Roma Leuyerink added these numbers: * Blurred Lines, Robin Thicke & Pharrell Williams* Got to give it up, Marvin Gaye* Thinking out loud, Ed Sheeran* Let’s get it on, Marvin Gaye* Shallow, Lady Gaga* Almost, Steven Ronson* Fire, Gavin Degraw* Deel van mij, Andre Hazes jr.