ABSTRACT: Copyright law has shortcomings in the area of authorship of derivative music that are exacerbated by the extent of judicial discretion involved in analysing a piece of music at issue in a case. In addition to the vagueness that exists in the scope of copyright, the judiciary undertakes the inherently intangible task of analysing the properties of music. Judgments have been based on assumptions that an author is a lone figure who creates works that are clearly distinct from other works. This has meant that performers have not historically been recognised as contributing to compositions. Also, elements of music that cannot be represented by notation have been undervalued. The proliferation of derivative music is part of the changes in creativity and culture in recent times. Copying and collaboration can be positive cultural forces and are the reality of creativity, but the law has been slow to recognise this. The free discretion of the judiciary to analyse music has facilitated attempts to accommodate authorship of non-classical music. The rights of performers have increased and music is defined as existing beyond the score. This has gone some way to allay criticisms of elitism and academicism. However, reconfiguring legal principles in accordance with developments in music have merely served to create greater uncertainty and there has been recent criticism regarding the conflation of issues and a lack of clarity around copyright’s role in property and commodification when it comes to art. Through an analysis of case law, I have examined the impact of the approach of the judiciary on copyright law. This article argues that music analysis is inherently subjective and judges presiding over authorship cases require a framework in order to set out a workable law.
The law of copyright authorship has struggled to keep up with musical developments and tastes over the last century. Copyright law was conceived in terms of the lone author, discrete works and the visual representation of music and has been moulded in these concepts.1 Genres of music that can be called ‘original derivative music’,2 ‘iterative-variative’ music3 or (more specifically) blues-based music4 do not fit into the prevailing assumptions of copyright. Derivative music is a huge industry5 and it is important that decisions are consistent and clear if the law is to successfully reconfigure its principles in accordance with modern developments in music.
Derivative music works overtly copy past songs with the intention of creating something new. Rather than profit from the labour of others, the point of this practice is to imbue the artwork with cultural relevance or the gravitas of tradition.6 The blues, as an example, had a period of tolerated plagiarism throughout its golden age in the early-to-mid 20th century7 and is the foundation of much chart music in the west today.8 Jazz, hip-hop and rap also stand under the umbrella of derivative music, as (sometimes) do other genre-defined music such as country and folk. The tenets of copyright law in England are not clearly applicable to the elements that are valued in the blues and its relations. Performers and fans of a genre find great distinctions between different recordings that might not be apparent to someone unfamiliar with that particular type of music. This raises a major issue for the law in terms of the judicial evaluation of music in authorship cases.
In a derivative piece of music, there may be note-for-note or lyrical copying of an earlier piece but the artist will invest creativity in other aspects of the music-as-heard. These include performance stylings such as vocal delivery and instrumental technique, sonic properties inherent in a recording, rhythm and cadence.9 This can have the effect of distinguishing the new version from any earlier version(s). In a dispute where a derivative piece does have notational similarities, the court must decide whether it is sufficiently original to obtain a separate copyright. The courts have assessed various non-note elements of music in recent times, having previously undertaken the relatively simple task of comparing written scores.10
The wide discretion available to judges to decide whether an original musical work11 has been created has a role in preventing the unjust denial of authorship under the Copyright, Designs and Patents Act 1988 (CDPA), whether as an adaptation/arrangement or as a (perhaps infringing) new composition.12 . This role is broken down into the component parts of whether the music is original and whether it even is ‘music’, with an overriding consideration of whether source material has been changed sufficiently by the derivative artist. Although authorship is designed to be easily achieved, the creation of derivative music pushes at the limits of acceptance for English law and raises the level of difficulty for the court.
The Definition of Music
The courts have the authority to define what 'music', in law, is. The statutory definition13 of music is deliberately open to interpretation in order to not unjustly exclude authorship claims. Unfortunately, however, it can be said that a resultant effect is that 'the limits of the definition of music are unclear'14 and that English case law provides only inconsistent definitions for what constitutes a ‘work’15 regarding music. Thus the freedom of the courts is substantial in this area.
Historically, music has been recognised in its visual representation, i.e. that which can be written as a score.16 Electronic recording, of course, allows more fixation than can be captured on a score17 and the law is designed to be able to take account of this. However, proving that a music work has been created is a difficulty regarding derivative music as songs can be predominantly performance, sonority or rhythm orientated.18 For instance, Anne Barron has argued that the conventions of composition of the blues are clearly at odds with the logic of copyright law.19 Derivational music works borrow prior melodies and harmonies and demonstrate creativity in the performance and how they use this ‘music’. It is often a matter of style over notational content.20 In terms of derivational compositional ethic, the value afforded to sonority and performance do not translate onto the written notation and, although the law allows a broad interpretation of ‘musical work’ that is not limited to melody or harmony,21 that value may struggle to be fully recognised in the courts.
For the purposes of copyright, music has been clearly defined as what is heard.22 In musicology, conversely, all recordings are condensed into a score, either visually or mentally.23 Although one finds similar prejudices in musicology and copyright law, as Barron has demonstrated,24 the definition of ‘music work’ is not the same in both fields.25 This is problematic as the expert evidence of musicologists carries a lot of weight in music copyright cases.26 Although, in law, the judge is expected to apply an aural test, he will be advised by someone who is trained to see music visually. The potential for such anomalies is heightened by the inevitability that subjectivity will seep into the analysis of music in court.
The first prominent case to investigate the legal definition of music was Hadley v Kemp.27 This case prompted a discussion on whether musicians’ involvement in developing a composition to its finished state was merely performance or amounted to a significant contribution to a musical work. The case involved the pop group Spandau Ballet. The group members brought an action to be recognised as joint authors along with Gary Kemp, who had been solely credited as songwriter (apart from one track).28 The court ruled that, where Gary Kemp created a composition in the form of acoustic guitar playing and basic vocal melody, the group’s involvement in developing the final piece was not sufficiently significant to merit any copyright in addition to Kemp’s. The court did not recognise their contribution as ‘music’. Park J held that the melody, chords, rhythm/groove and general structure of each song was fixed in Kemp’s musical consciousness before delivering it to the band.29
The court took a hands-on approach to assessing the worth of the band members' efforts. As the vocalist sang pre-devised melodies, his contribution was not copyrightable.30 The court found that the contribution of other musicians developed the performance and interpretation, not the creation and composition.31 They did not gain copyright as the songs were not changed significantly.32 The contention that the saxophone playing was not memorable, tuneful or original was used to justify a lack of copyright.
Precedent was thereby set in accordance with subjective opinion; the assessment of music flowed into legal principles of pertinence for derivative music. The judgment declared that delivery techniques, timbre and note selection within a structured chord arrangement did not contribute significantly to any song. ‘Slight changes’ to melody were not considered significant.35 Indeed, Park J, in discussing the band’s process, made the point that the band did not fix ‘all’ of their contributions in notation, indicating that he did not consider elements outside of notation to be any kind of contribution.36 Park J, unfamiliar with the subject matter in the case (pop music), with a wide discretion and without tailored, genre-specific guidance, created a high standard for authorship in terms of the definition of music.
The expert evidence of academic musicologist Guy Protheroe was wholly accepted by the court in defining ‘music work’ and deciding whether the final version of the song appreciably changed the music work from the version introduced by Kemp.37 Lionel Bently has criticised the court’s ready deference to this witness.38 It could be argued that it would have been more relevant to adduce expert assistance from one of the many buyers of Spandau Ballet's discography, if an analysis of the work was necessitated, as they were truly familiar with and informed of the music.
Justine Pila pointed out that the use of experts in Designers Guild39 demonstrates that the courts evaluate the mores of the particular art form at issue in establishing whether there was an authorial intent, which she argues is a requirement for a (musical) work.40 To adhere to this principle, the courts would need to assess the typical standard practice in a particular genre to assist in the decision of whether an artist intended to create a new composition in what they recorded. The choice of expert witnesses called ought to be impacted by this logic.
It can be argued that music is legally controlled by remits that are unfamiliar to its practitioners.41 The process of evaluating music is inherently subjective, not only in terms of preference but in terms of aurality.42 A lot of weight is afforded to musicologist evidence,43 but their opinions may differ from experts in a genre. Bently proposed the admission of evidence from ‘new musicologists’; fans and experts in a genre, rather than academics.44 This is a promising idea and a way to control the subjective analysis of music on the bench. Weighing up various testimony regarding music would pose a much more tangible and familiar challenge to a judge.
In addition to influence from the musicologist, Barron suggested that Park J was guided by the notion of a Romantic caricature of the genius lone composer.45 Ultimately, neither music that could be written on a score nor aural features of the performance qualified as part of the ‘work’, in the context of significant contribution as a joint author, as the status of Kemp was exalted above the other band members. The personal bias of Park J towards music, whether Barron was correct or not, was certainly a factor in the outcome of the case.
This case demonstrated a strict treatment of the concept of music by the courts. Sonority and performance beyond sheet notation were not valued at all. On the other hand, it appears the catchiness of some played part of a song could potentially lend to that part being classified as a music work.46 The distinction of Kemp’s rough draft to the final recorded piece shows that the ratio could also be applied to an adaptation of a pre-existing piece, both in the context of the collaboration of the group and each individual’s interpretation. Hadley v Kemp could thus be a strong authority against granting independent copyright to a new version of a pre-existing song.
A completely different perspective emerged from Sawkins v Hyperion,47 a case involving music scores that were drafted in an innovative way by a musicological scholar in order to represent as accurately as possible the music of a long-dead composer, Michel Richard De Lalande. Dr. Sawkins located old transcripts and added figuring of the bass,48 ornamentation49 and performance directions.50 The case emphasised that ‘musical work’ can encompass performance elements and musical features that are beyond the traditional notational score.
In a departure from the direction of the Kemp decision, Sawkins showed that performance indicators can be subject to copyright. Barron stated that this contradicts Kemp and opened up the definition of musical work.51 In this sense, it broadens judicial discretion on the matter. The court went to great lengths to establish that the efforts of the academic, while not comprising new notation, did qualify as a musical work. The sonoric impact caused by his additions was sufficient for his version to be recognised by the court as a distinct creation.
It has been argued that sonority is too vague to be granted property rights52 but, on the other hand, it is argued that contributors to sonority deserve a fairer apportioning of the property rights at issue.53 Bently proposed the introduction of a copyright in ‘original works of sound’ alongside original musical work.54 This may lighten the task of evaluating music in the courts, but it is easy to see how it could create greater confusion by opening a new category of authorship in the same work. Further, this proposal would create another area for judicial discretion to apply to and thereby serve to exacerbate the very issue it seeks to quell.The rights of performers as composers are inherently connected to the recognition of sonority. Where a composer of a derivative song is an improvisational musician, copyright can only be claimed in that which can be expected to be repeated in its individual performance.55 The plight of the performer vis-à-vis the composer has been lamented. Barron suggested an adoption of the publicity right as a solution to ameliorate the position of performers and innovators in sound.56 It would be a big step to open the door to image rights in England in order to solve a micro issue within music authorship. Also, it would not significantly remove the issue of the judicial evaluation of music. Further, the distinction between composer and performer is not clear-cut outside the world of classical music,57 making it unsuitable to remove performers from the discussion of authorship. What would truly be beneficial to a performer would be a simplified rule of thumb, such as the requirement of a contractual agreement.
The courts have been presented with the chance to bring the expansion of the legal definition of music into the modern world through the case of Bamgboye v Reed58 , where it was found that sound effects and rhythmic patterns added to a two-step music track, in addition to melodic elements, entitled the contributor to part of the copyright. The trial judge, Williamson Q.C., admitted her bias towards melody but nonetheless recognised the significance of rhythm in modern music.59
The benchmark for the definition of music was reduced further in the Fisher case,60 involving Procul Harum’s hit ‘Whiter Shade of Pale’, where the organ player on the song sued for joint copyright.61 The court evaluated the song in distinct parts and assessed the contribution of the organ player as a distinct authorship,62 rather than collaborative (meaning the decision can also apply to adaptations). Matthew Fisher was held to be joint author under S10 of the 1988 Act and granted 40% of future royalties. This was on the basis that he was found to have created the music for the organ himself, although played as an interpretation of Brooker’s underlying chord progression, and that his part was memorable and distinct.63
The Fisher case established that sonority was copyrightable in a band scenario. The musical contribution of the claimant, the impact of the sound of his instrument, and the distinctiveness of the passages on which his playing was prominent were taken together as one factor.64 There was emphasis on the amendments to the ‘descending bass-line’ that the organist added also.65 Thus, the overall impact of the playing of the organist, taken with his creation of a series of notes to accompany a pre-existing piece, was enough to gain copyright.
The appearance of subjectivity on the bench creates pitfalls; copyright law has been criticised for under-representing non-classical music.66 The apparent contradiction between Sawkins and Kemp has been perceived as elitist.67 Although the Bamgboye case is a counterpoint,68 this view has not been ameliorated in the interim by the overt approval by the courts of pop music that is based on Bach.69
Limits to the definition of music were set in Coffey v Warner,70 where the court emphatically rejected the contention that vocal techniques reached the musical work standard, finding that they failed to reach even substantiality for the purposes of copying. Further, lyrics have been firmly denied as constituting part of the music, but contradictions in the law can be found,71 such as in Brown v Mcasso,72 where a rap artist was found to be joint author in the music. Bently believes that the law’s steadfast conviction to separate words and music is bound to lead to erroneous decisions.73 It could be argued74 that in types of music where rhythm and vocal phrasing are musically important, the creation of lyrics is not only a literary work but also a musical one, even where significant melodic content is not found. This straightforward hypothesis for authorship was alluded to but unfortunately remains unsettled and in the hands of the court hearing the next dispute.
The legal definition of music is intended to be broad. Bamgboye v Reed75 recognised clearly that complex rhythm was subject to copyright protection. In the earlier case of Kemp,76 and perhaps more severely in Barrett,77 where the bass player/producer for Bob Marley’s Wailers was not found to be a joint author despite evidence being accepted that he was ‘undoubtedly the leader of the band’ and ‘very much in charge of the music’ but did not contribute to the vocal melody, the courts were hesitant to find a significant contribution to exist in non-notational elements of music. However, more recent cases have embraced this proposition. Dominic Free stated that the law is back on the right path, having strayed in Kemp.78 Richard Arnold pointed out that only recently79 has it been recognised that sound recordings capture far more than written scores, opening the gates for what can be considered a ‘work’80 in music. The meanderings of legal principles in the foregoing precedent shows how the courts have a largely unrestricted discretion in analysing music in any individual case. The haunting sound of an organ, the cadence of beats and performance indicators have all been worthy of copyright. The contribution of a musician/performer is now more likely to be found copyrightable than in the past, but developments in favour of performers may be at odds with music industry practice.81 It is clear, ultimately, that the definition of music work in law is not so broad so as to nullify the impact of judicial discretion.
Recent cases seem to have profoundly shaken the foundations of the law82 regarding the definition of music. Further, the lack of meaningful, practical conclusions that can be drawn from the precedent indicates that the courts have a broad canvas on which they can paint their own interpretations of what music is in a particular case. A significant problem has arisen from the apparent rejection83 of the standard set in the Kemp case84 without any explicit acknowledgement in the courts. It is at best a guess that Kemp is no longer good law. If none of Tony Hadley's vocal stylings, a 40 second sax solo, and rhythmic structures was an original music work, it is difficult to see how most contributions would reach the standard. As per Blackburne J in Coffey v Warner, the performance of a musician 'is not the legitimate subject of copyright protection'.85 The legal recognition of Dr Sawkins' work,86 conversely, and, more significantly, the recent victory for Matthew Fisher87 throws a much more favourable light onto contributors’ claims. Firstly, quantatively, Matthew Fisher’s notational contributions were minimal; his organ solo composed approximately 3 notes on top of each of Brooker's chords and his bass line added one note and one chord. Secondly, a fact that leant strongly in his favour in the case (as it showed a distinction from Brooker’s work), his composition was based on a pre-existing, out-of-copyright piece. The sound of the organ playing was a large factor in being held an original music work. This was in context of Brooker having made the prior decision to add an organ sound over his piano chords. The courts have demonstrated the power to declare this a music work on one hand and refuse the same status to similar contributions in other cases.
Examining the precedent, certain musical facets have been awarded the status of music. Rhythm,88 cadence89 and performance pointers90 are potentially music works, especially in addition to the lyrics and music. However, this key matter for all derivative genres of music is very uncertain legally. It is only very recently that the courts have recognised features outside of notation as being relevant to music works, after a history of sticking firmly to the visual representation of music.91 Thus the law is undeveloped in England. Fisher92 and Bambgoye93 decided matters of significant contribution for joint authorship and could be distinguished on the narrow circumstances in each case. Sawkins94 provided a firm basis for all subsistence claims but could be distinguished on the facts of the especially epic and erudite process which was necessary to create the work. The courts have opened the gates but not gone far enough to address the discrepancies between the legacy of historical music evaluation and the current reality.
The standard by which the performance of a musician will achieve the status of music work is overcomplicated, and is open to evaluation on a case-by-case basis. The question can therefore be raised whether it would be better to stick to a visualist, musicological, definition of music for the purposes of copyright, so that composers would have greater clarity at the outset of their endeavours, thereby cultivating creativity. There is further confusion due to apparent conflation of the requirements for originality and the requirements to be considered a copyright work95 . If the legal principles were made clearer, decision making around the concept of music could only become easier.
The Law of Originality
In addition to establishing the creation of a musical work, a putative author must show that he has created an original work. The definition of originality in law does not equate with the general English language understanding of the term.96 The courts have wrestled with setting remits for what constitutes ‘original’ for the purposes of the CDPA and have arrived at what is widely considered to be a low threshold.97 However, the question of originality, particularly when conflated with the definition of music, can potentially be a barrier to achieving authorship. Moreover, if the threshold is not negligible, there is significance in the width of discretion available to the bench to evaluate whether the music in question meets with the legal concept of originality.
Burton Ong has discussed how ‘recreative derivative copyright works’,98 strict cover versions in music, have been held to be original works in categories outside of music. The author of an ‘original derivative creation’,99 on the other hand, intends to create something new but, in doing so, may overtly incorporate a representation, a tribute or a parody of an earlier work. A jazz improvisation might start out as a well known tune. A hip hop song might feature a replication of a popular chorus. It may even be an adaptation but the performer believes it to be original (a common occurrence in the blues tradition). Tension is created here between the rigours of the law and the conventions of non-classical music.
In assessing originality, the courts have examined the process of creation. It is essential that the work is not entirely copied and also that a minimum authorial standard is reached. Two separate and distinct tests have been applied. In Redwood v Chappell,100 Robert Goff J. approved the straightforward definition of originality101 used in University of London Press;102 a work must originate from the putative author. In the period between these two judgments, a line of cases including Ladbroke v William Hill103 established that some (unagreed) measurable level of input from the author, comprising judgement, skill and labour, was necessary in order to meet the requirement that the creation be original. The Redwood case set out that, in the case of adaptations, origination from the arranger rather than producing a mere copy is sufficient.104 In this case, almost every adaptation before the court of ‘Zing’, a well known composition, passed the required standard to be granted copyright.105 In the opinion of the court, the arrangements broadly showed musical advancement and enhancement rather than representing recreative cover versions. Thus the standard for originality was set quite low and vague for a derived composition to gain a separate copyright and a clear divergence in the law was created.
European law has added another dimension of complexity recently. The Infopaq judgment106 expanded the definition of originality as ‘intellectual creation’ to cover ‘work’107 of all kinds. As InfoSoc108 is adopted by the UK, the interpretations of the European Court of Justice (CJEU) must be followed by the courts here.109 In the BSA case,110 the CJEU said the test for originality must be the same in all areas, flying in the face of prior English opinion.111 It also held that copyright cannot subsist in a purely technical function; the expression must accommodate an author’s creativity. Eleonora Rosati disagreed with the findings of the English Court of Appeal in the Meltwater case,112 that the law is unchanged, arguing that low-creativity and technical activities will be impacted.113 She also said that substantiality tests may be changed,114 possibly challenging the authority of Francis Day115 and Coffey,116 and that the authority of Sawkins117 is undermined118 by BSA.119 Recently, the Court of Appeal utilised the Football Dataco case120 to heed the calls that further clarification on this controversial issue is needed121 and questions were referred to the CJEU. The European court confirmed that originality must involve an author’s creative freedom in order to obtain copyright. The cultural disparity creates further turmoil regarding musical analysis. The movement towards creativity creates a difficulty for the courts, being a much more ethereal examination than judgement, skill and labour.
There is considerable disagreement amongst academics regarding what the correct test to apply is. This increases the freedom of the courts to arrive at a decision that meets with their subjective opinion of the music at the centre of the dispute. The standard to be reached is unclear.122 The case law seems to lean more towards skill and judgement than labour, according to David Bainbridge.123 Colston and Galloway, in contrast, stated that effort is valued as highly as creativity.124 Lior Zemer had previously noted that, in Bamgboye,126 the court referred to the findings in Cala Homes v McAlpine Homes125 to inject a creative element into the contribution requirements and she suggests that this may already have been the correct authority to be followed.127 Luke McDonagh believed that a performer must add creative originality to be considered a joint author128 (a similar standard to authorship of a derivative work). Thus, differing interpretations abound. Whilst a creativity test is intuitively correct for music composition, it appears to be more difficult to adjudicate on.
There is also criticism of the level of originality that the courts have accepted. Gravells explained that reliance on Walter v Lane in Sawkins was incorrect.129 For Dr. Sawkins to claim authorship, he needed to have created an original musical work as per S 2 of the CDPA 88. The court was determined to grant copyright protection over the painstaking efforts that Dr. Sawkins exerted. Pila believed that this decision was formed around a concept of the author’s intent.130 The court was satisfied, once it had established that a musical work had been created, that copyright subsisted without a discrete exploration of the piece’s originality.131
Further, the court dismissed the argument of counsel for Hyperion that these indicators were not new in musical terms and merely described what Lalande had previously created and intended.132 It has been argued that his case is an example of the courts’ confusion when leaving the visual, academic media and failing to understand an art form other than in the manner in which it can be committed to paper.133 Arnold stated that skill and labour are required for musical adaptations to satisfy the law of originality in much the same way as general copyright, and states that the courts invoked their discretion to lower the threshold with the Sawkins decision in terms of changes to the antecedent work.134
The recent case of Fisher135 also touched on originality. The organist, interpreting an earlier, pared down piece by the chief songwriter, claimed that he had made a significant contribution to the final release, implying that his playing was sufficiently ‘original’ as against the earlier blue-print. A significant contribution was defined as more than trivial.136 Blackburn J. agreed with the expert musicologist Peter Oxendale that the organ solo is significant, hugely famous, memorable and distinctive and there was obvious skill and labour utilized.137 This solo melody, in addition to small changes to the bass line, where one note was changed, two chords were replaced with one and subtleties were added, resulted in copyright being warranted.138 The verse accompaniment was considered neither distinctive nor original but was not definitively held to lack copyright.139 Indeed, Arnold believed that this accompaniment on its own would be sufficient to allow Fisher to be recognised as joint author to some degree.140 Certainly, it appears that it is well within the power of a judge to cast his net of discretion so far.
Having risen in the more administrative realms of compilations, the qualitative authorial standard for demonstrating originality has now been clearly applied to the creative arts and to music in particular. Redwood v Chappell141 involved derivative songs but much has developed in the case law since this decision. The necessity for newness or independent origination has grown weaker with the passing of time, particularly in the light of the Sawkins case, but this movement has potentially been reversed by European decree.
The standard for originality has been set quite low142 and the same low originality threshold exists for adaptations/arrangements as compositions.143 McDonagh believed that all musical creations surpass the European standard144 and Arnold contended that it would be easy for any recorded piece of music to succeed in being found original over an antecedent song.145 However, a putative author must demonstrate some level of creativity146 or, in the alternative, judgement, labour or skill. The former is a vague standard and the latter is unsettled in law. The tests that the law has applied have oscillated between both options; an outcome could potentially be determined by which test is used. For instance, in a blues composition, a judge might appreciate the labour but not the creative essence whereas he may appreciate the creativity in a hip hop remix, but not the effort. The court has the power to assess the process of songwriting, decide whether the effort of a musician or their creativity is more significant and ultimately to evaluate whether either meet the standard they deem required in order to be recognised as an author.
Although the inconsistent application of tests in the law of originality is not rooted in music law, the freedom of the judiciary to analyse the originality of a piece of music has bred further inconsistency. This in turn increases the discretion of judges. The situation is exacerbated by the unrestrictive, fluid nature of derivative music production and composition. The legal principles are growing broader in order to accommodate a relatively new cultural approach, allowing further freedom of interpretation and, presumably, less certainty for composers.
In the law of subsistence of copyright, an analysis specific to derivative works that overlaps the concepts of originality and defining music is the requirement for sufficient change. Where a song is derived from previous music but its author seeks recognition for some level of originality or creativity, he will claim that the composition has changed in some significant way. In the blues and other forms of derivative music, the author will invariably hold the belief and understanding that they are creating something new despite apparent similarities to antecedent songs. The decision can fall to a judge to assess whether their belief is justified.
Analysis of sufficient change is a feature of joint authorship cases. Band members have claimed recognition as joint authors147 where they believed that their contributions deserved a share of the spoils. Where the band member, or session musician in some instances, played a piece of music on top of an already composed track, the court has looked at whether the piece, in order to be a significant and original contribution, has changed the entire song sufficiently. The degree of change involved here equates to the change required in order for copyright to subsist in a derived composition or arrangement.148 A putative joint author must have contributed a music work in its own right.149 Also, the level of originality required to be a joint author has been equated to that required in an original music work. So, the law regarding joint authorship is applicable to derivative music generally in addition to being relevant due to the often collaborative nature of the composition of this type of music.
The legal standard has been clearly elucidated. In Godfrey v Lees,150 a significant and original contribution was the stipulated standard to be found to be a joint author, and this standard was considered to be surpassed where there is considerable effort beyond clerical copying that has an aural impact. Where finding a significant change to the underlying composition, the courts have favoured additions that were distinctive, dominant, memorable and catchy.151
However, there has been inconsistency in this area also. According to Free, Kemp effectively reversed Godfrey v Lees.152 Park J., unhelpfully according to Free, made a distinction between performer and composer.153 The Kemp decision has been criticised by Arnold for conflating originality in an adaptation with contribution as a joint author.154 Although the concepts should be kept distinct, the transposition of standards is useful to build a bank of precedent. Barron also criticized Kemp, saying it demonstrates a lack of regard for pop music as an art form.155 These criticisms highlight failings and potential future pitfalls for the courts, on both legal and musical points.
Thus the courts’ earlier stance on originality must now be considered reinstated in light of Fisher.156 Fisher’s piece had sufficient difference and, thus, subsistence (as a contribution). The subjective opinion of a judge in a particular case can cause a sea change in the underlying legal principles. In Fisher, Blackburne J. decided that the organ playing was, as a whole, ‘sufficiently different’ and was an ‘original contribution’157 by a long way. This contrasts with the members of Spandau Ballet, particularly the sax soloist, not managing to reach the standard for original contribution for their improvisations within a chord structure. Significantly, the Kemp case was not cited in Blackburne J.’s judgment. Although Blackburne J. asserted that it is important to distinguish memorability from composition, the ‘catchiness’ of the organist’s playing impacted heavily on the reasoning.158 He stated that an adaptation must have originality to the same degree required for subsistence, defined as skill and labour which is vested in elements of the creation other than copying.159 This is a well defined legal principle to derive a judgment regarding originality from, where music (including derivative music) is involved, but the decision ultimately shows that subjectivity on the bench is paramount.
As stated above, where decisions are perceived as subjective, subtle bias can be presumed integral. For instance, it had been decided in the earlier Robin Ray160 case that a putative co-author must create something copyrightable that finds its way into the work. Zemer stated that this requirement is wrong and is based on the myth of the sole author.161
Another complication is that this situation is not helped by the fact that the conventions for crediting in the music industry do not follow legal logic, according to Arnold.162 Free also believed that there is divergence between music industry conventions and joint authorship copyright law.163 Industry conventions provide a template for the courts to investigate the mindset of creators and provide a route to adjudicate on authorship disputes in place of musical analysis.
It can be contended that, with the foregoing group of cases, the courts have established a doctrine of 'sufficient change' in the field of copyright authorship. This doctrine, which clearly has a direct application to derivative music, grants judges sweeping authority to assess the merits of the artwork in question. The standard for sufficient change in derivative music will incorporate adequate originality and a contribution of ‘music’. Blackburne J. has altered the landscape on both scores in his recent Fisher decision. Although the precedent for recognition of joint authorship is useful to inform the standard required for subsistence of copyright in a variation of a prior copyright work, ‘confusion dominates the definition of sufficient contribution in joint authorship’.164 By extension, the degree by which an artist needs to change a song in order to be granted authorship is mired in the same confusion.
The courts’ task of analysing whether music has changed sufficiently is made more difficult by the fact that music composition has become more freely collaborative in recent times. James Griffin disapproved of the propertising of music, saying that this concept no longer applies to music in practice.165 He quotes Brian Eno’s theorising that there is no longer the musical genius, but a ‘scenius’; music is now made by a creative collective within their particular local genre.166 This reality conflicts with the law’s desire to draw straight lines of ownership between creations.
In terms of attempting to decide on the correct owner of a creation, Bently suggested that joint authorship boils down to agreements between parties as to levels of authorship, rather than a musicological/legal examination.167 Derivative music traditions tend to be collaborative and the unease within joint authorship law leaves composers/contributors/musicians on unsure footing. It appears that the courts would be significantly more at ease in assessing the contractual implications of human interaction than making legal sense of the musical results of said interaction. Clarity may be more beneficial than attempting to find a fair outcome on a technical musical level.
Suggestions have also been made in relation to possible improvements to the law to take into account the recyclable nature of derivative music. McDonagh pointed out that the ‘creative use of existing musical materials is common in musical practice’168 but not tolerated in law. He suggested that a ‘creative use’ exception be built into English copyright law.169 Russ Versteeg suggested that the courts utilise terminology such as ‘distinguishable or meaningful variation’ in place of the ubiquitous investigation into process.170 The law of authorship is plagued by the concept of the lone, autonomous author which is strikingly out of place in today’s environment of open musical collaboration.171 There is a pressing artistic need to allow some form of these exceptions to crystallise in the law. Wedging a new doctrine into the existing law, however, could create fresh challenges of music analysis for the judiciary.
There is also scope for the intent of the author to be afforded due consideration.172 McDonagh referred to the authorship settlement between Willie Dixon and Led Zeppelin to make the point that, musically speaking, Led Zeppelin were no less original with Whole Lotta Love (allegedly copying Dixon’s You Need Love) than blues musicians that preceded Dixon.173 The distinction, however, is that early blues musicians were proud copyists,174 whereas Led Zeppelin attempted to take complete creative credit.175 From the point of view of establishing a workable framework for the courts to decide music authorship cases, particularly in derivative music, intent is a necessary ingredient to be considered when analysing sufficient change, whether in terms of originality or the definition of music.
An overarching theme, in many disputes involving copyright, the tension between artistic expression and commercial exploitation is mentioned. It is unclear whether the courts should take the marketability of elements of a work into consideration. In the USA, ‘audience appeal’ is a factor in establishing whether a joint author has made a substantial contribution to a work.176 Although English precedent has historically taken the opposite view, in the recent case of Fisher, the contribution of the claimant was assessed in terms of his contribution to the success of the song at issue. Barron questions the validity of discounting the effect that contributions of band members had on the audience in the Kemp case.177 After all, copyright recognises property rights as existing in relation to objects that will be market transactions.178 Andreas Rahmatian believed the courts should not be concerned with art but that copyright in practice only protects potential market value.179 On the other hand, Pila stated that the judgment in Harpbond180 disapproved of considerations beyond art in copyright cases.181 Having been born into an economic value world,182 courts now discuss copyright in terms of pseudo-moralism183 and this morphing has created further confusion. Another perspective is that when courts deal with the ‘quality’ of music, it is to do with impression of sounds, not aesthetics nor marketability.184 Attempts to hone an artistic perspective have only resulted in claims that copyright law has failed derivative cultural production.185 The economics approach would seem to provide a much clearer focus for the courts in authorship cases and allow the examination of more concrete evidence.
Derivative music relies on the recognition of musical factors outside of the score in order to gain currency. The decisions that have leaned in this direction have received criticism of elitism and also that they have contradicted previous cases. The law is still tied, also, to the academic visualist view of music at a fundamental level.186 A performer, although the position has changed recently, would find difficult obstacles to achieving authorship. It is now much easier in a joint authorship case, but an interpretation of a pre-existing piece is tied to the idea of adaptation. Although the standards are equivalent, it is debatable whether the law is directly applicable. The courts’ attempts to analyse originality in music have resulted in unsatisfactory law.
The law of copyright authorship has been built on a framework whereby a presiding judge in a dispute will analyse the music at issue in order to make a decision. The technical analysis of music has often taken priority over investigating, for example, the intent of a performer when contributing to a piece, the implied agreements set out between collaborators or the intent of an artist when reinterpreting pre-existing music. This approach has also been favoured ahead of establishing clarity and transparency in legal principles, in order to promote consistency in the application of the law. Decisions can appear arbitrary to the music world and provide scant guidance for composers.
Copying has been hampered as a positive cultural force by copyright law187 and has not been adequately factored into authorship law. This is due to performers not being regarded as on the same level creatively as non-performing composers and also due to the importance of the distinct music work, these rationales being fed by tendencies toward elitism and visualism, commodification and the conflation of legal issues. Various musical cultures of derivation and intra-genre collaboration have met with a legal environment where the song exists as an autonomous unit. As music is a fluid, multi-authorship,188 interactive entity, the attempts by the law to draw straight lines of authorship have resulted in conflation and attempts by the law to accommodate derivative music, where its foundations were built on opposing ideologies, have resulted in contradictions.
The concept of the autonomy of the individual song has lead to a lottery of reward in copyright in some instances.189 Whilst consideration should be given to ‘when uses of existing material with limited or no compensation may be inappropriate given the contexts of such usage’,190 the benefits of tolerated plagiarism can be seen in the development of the blues, where artistic freedom and the market flourished.191 The ‘chain of creativity’ is now more inaccessible than ever because the duration of copyright has been ever extended as the influence of derivative music has grown.192 Music in the west has always been an interactive, social process involving composer, performer and audience; beyond the staff and even sonority.193 The view of the work as reified, however, creates problems for the courts.
The analysis of derivative music requires the judiciary to use their personal discretion as the qualities inherent in the music itself as well as the sense of originality and are much less tangible than, for example, classical music. Unfortunately, judicial freedom in analysing music for the purposes of copyright authorship has not produced satisfactory results; the law is confused and unsettled. The logical consequence is that powers of discretion will be expanded. In order to curtail this exacerbating cycle, there is a necessity to restrict the amount of discretion available to a judge to analyse music. Tests for establishing an original musical work should be utterly simplified and new legal principles should guard against flaws in the legal analysis of modern music. It is open to the courts, for instance, to assess market value, to take industry conventions into account or to insist on written agreements to be in place in order to advance a claim of authorship.
Music, derivative music in particular, provides many instances of conceptual overlap and dichotomy for copyright law, resulting in a dearth of practically applicable guidance.194 It is difficult to distil rules from the precedent in this area, as opposed to literature for example,195 risking cultural oppression. Broadening the scope of what can qualify as an original musical work will only be beneficial to composers if the remits are clear. Stronger guidelines and/or a framework for decisions that are in line with modern culture ought to be adapted to rein in the free hand of the courts in regard to music and make decisions more predictable. The objective assessment of music has proven too difficult a task and therefore some form of controls is required in copyright authorship cases, especially where derivative music is concerned.
* Law alumnus of University College Dublin, Kings Inns Dublin and University of Westminster.
1 Toynbee (2006) p. 78
2 Ong (2010) p. 165. This broadly means the creation of new songs, despite blatant copying; as opposed to recreative derivative music (cover versions).
3 Toynbee (2006) p. 78
4 Ripani (2006) p. 16
5 Rap music, included in this category, has dominated popular culture for the last 2-3 decades. Vaidhyanathan (2001) p. 14
6 Middleton (2007) p. 51
7 Toynbee (2006) p. 89
8 Vaidhyanathan (2001) p. 126
9 Toynbee (2006) p. 85. Also, see Vaidhyanathan (2001) p. 123
10 Arnold (2010) p. 155. Barron outlined criticism in this regard, Barron (2006) p. 26.
11 CDPA 1.1(a)
12 McDonagh discussed the distinction in detail, McDonagh (2012a). The definition of music and originality is relevant to both.
13 CDPA 3.1(a)
14 McQueen, Waelde and Laurie (2008) p. 72
15 Bainbridge (2010) p. 44
16 Barron (2006) p. 26
17 Arnold (2010) p. 155
18 Vaidhyanathan (2001) p. 124, particularly in the 'Afro-Centric' universe.
19 Barron (2006) p. 35
20 Vaidhyanathan (2001) p. 13
21 McDonagh (2012a) p. 65
22 Arnold (2010) p. 153
23 Barron (2006) p. 31
24 Barron (2006) p. 30. She highlighted that elitism is prominent in both.
25 Barron (2006) p. 44
26 Coppinger & Skone James (2010) I.7.2.A.7-18
27 Hadley v Kemp (1999) E.M.L.R. 589 (Ch D)
28 Due to the timing, the 1956 Act (s11.3) applied in this case but the judge stated, at 637, that the result would not have been different under S 10.1 of the 1988 Act. The law was applied in the context of communal song writing as well as individual contributions.
29 Hadley v Kemp (1999) E.M.L.R. 589 (Ch D) at 639
30 Hadley v Kemp (1999) E.M.L.R. 589 (Ch D) at 647
31 Hadley v Kemp (1999) E.M.L.R. 589 (Ch D) at 648
32 Hadley v Kemp (1999) E.M.L.R. 589 (Ch D) at 649
33 Hadley v Kemp (1999) E.M.L.R. 589 (Ch D) at 650
34 Hadley v Kemp (1999) E.M.L.R. 589 (Ch D) at 649
35 Hadley v Kemp (1999) E.M.L.R. 589 (Ch D) at 641
36 Hadley v Kemp (1999) E.M.L.R. 589 (Ch D) at 640
37 Hadley v Kemp (1999) E.M.L.R. 589 (Ch D) at 646
38 Bently (2009) p. 194
39 Designers Guild v Russell Williams (2000) 1 W.L.R. 2416
40 Pila (2008) p. 544
41 Barron (2006), referencing Horn
42 Milner (2009) pp. 15-19
43 Arnold (2010) p. 159
44 Bently (2009) p. 198
45 Barron (2006) p. 28
46 ‘Memorable, tuneful or original’ regarding the saxophone at Id. 650, ‘significant and prolonged prominence’ regarding ‘Glow’ at 649.
47 Sawkins v Hyperion Records Ltd (2005) EWCA Civ 565; (2005) 1 W.L.R. 3281
48 An aid to a performer, not prescriptive, Id. at 3292
49 Such as trills, Id. at 3287
50 Such as tempo, Id. at 3290
51 Barron (2006) p. 45
52 Barron (2006) p. 48
53 Bentley (2009) p. 195
54 Bently (2009) p. 196
55 Pila (2010) p. 236
56 Barron (2006) p. 48
57 Arnold (2010) p. 156
58 Bamgboye v Reed (2002) EWHC 2922 (QB); (2004) E.M.L.R. 5
59 Bamgboye v Reed (2002) EWHC 2922 (QB); (2004) E.M.L.R. 5 at 82
60 Fisher v Brooker (2007) E.M.L.R. 9
61 After an almost 40 year time lag. The court found that the lache was no bar.
62 Fisher v Brooker 2007 E.M.L.R. 9 at 273
63 Fisher v Brooker 2007 E.M.L.R. 9 at 263 and 272
64 Fisher v Brooker 2007 E.M.L.R. 9 at 272
65 Fisher v Brooker 2007 E.M.L.R. 9 at 272
66 Barron (2006) p. 26
67 Barron (2006) p. 26
68 Barron (2006) p. 45
69 Fisher v Brooker (2006) EWHC 3239 (Ch); 2007 E.M.L.R. 9
70 Coffey v Warner/Chappell Music Ltd (2005) ECDR 21
71 In Williamson Music Ltd v the Pearson Partnership Ltd (1987) FSR 97, Judge Baker hinted that words are part of the music. However, in Hayes v Phonogram (2003) ECDR 110 Blackburne J. said they are completely separate. Bainbridge was adamant that lyrics are separate for music. Bainbridge (2010) p. 58.
72 Brown v Mcasso Music Production Ltd (PCC) Patents County Court (2005) FSR 40.
73 Bently (2009) p. 186
74 Although unlikely to succeed: Bently (2009) p. 186
75 Bamgboye v Reed (2002) EWHC 2922 (QB); (2004) E.M.L.R. 5
76 Hadley v Kemp (1999) E.M.L.R. 589 (Ch D)
77 Barrett v Universal-Island Records Ltd (2006) EWHC 1009 (Ch)
78 Free (2002) p. 93
79 Since Fisher
80 Arnold (2010) p. 155
81 MacDonagh (2012a) p. 64
82 Griffin worried that copyright is expanding in ‘new and undesirable ways’ Griffin (2010) p. 653. See also Rosati (2011), Rahmatian (2009), and McDonagh (2012a).
83 Free (2002) p. 95
84 Hadley v Kemp (1999) E.M.L.R. 589 (Ch D)
85 Coffey v Warner/Chappell Music Ltd (2005) ECDR 21 at 23
86 Sawkins v Hyperion Records Ltd (2005) EWCA Civ 565; (2005) 1 W.L.R. 3281
87 Fisher v Brooker (2006) EWHC 3239 (Ch); 2007 E.M.L.R. 9
88 As recognised in Bamgboye v Reed (2002) EWHC 2922 (QB); (2004) E.M.L.R. 5 at 72
89 As recognised in Fisher v Brooker (2006) EWHC 3239 (Ch); 2007 E.M.L.R. 9
90 As recognised in Sawkins v Hyperion Records Ltd (2005) EWCA Civ 565; (2005) 1 W.L.R. 3281
91 Arnold (2010) p. 155
92 Fisher v Brooker (2006) EWHC 3239 (Ch); 2007 E.M.L.R. 9
93 Bamgboye v Reed (2002) EWHC 2922 (QB); (2004) E.M.L.R. 5 at 72
94 Sawkins v Hyperion Records Ltd (2005) EWCA Civ 565; (2005) 1 W.L.R. 3281
95 Catherine Colston and Jonathan Galloway suggested that there is judicial confusion amounting to an ‘identity crisis’ in Colston and Galloway (2010) p. 289
96 Bainbridge (2010) p. 41
97 Bainbridge (2010) p. 39
98 Ong (2010) p. 167
99 Ong (2010) p. 173
100 Redwood v Chappell (1982) RPC 109
101 Redwood v Chappell (1982) RPC 109 at 115
102 University of London Press v. University Tutorial Press (1916) 2 Ch 601
103 Ladbroke v. William Hill  1 ALL ER 465. This case explored subsistence of copyright in the format of a betting coupon. Reid L. stated that skill, judgement or labour can demonstrate originality and also that one finds subsistence in the whole of a work, not its dissected parts (at 277). Evershed L. distinguished the case as applying to the doctrine of originality in compilations. In this context, skill, labour and judgement are all required for a compilation to be sufficiently distinctive and original (at 281). Hodson L. decided that skill and labour that was more than negligible was sufficient for originality (at 287). Devlin L. required a substantial degree of skill, industry or experience (at 289).
104 Redwood v Chappell (1982) RPC 109 at117
105 Redwood v Chappell (1982) RPC 109 at119
106 Infopaq International A/S v Danske Dagblades Forening (C-5/08) (2009) E.C.R. I-6569 (ECJ (4th Chamber)) Infopaq were sued for the use of newspaper articles in their search service; they reproduced 11 words of an article where the search word was found
107 as protected by art.2(a) of the InfoSoc Directive. Originality was harmonised in Europe for computer programming, photos and databases.
108 Directive 2001/29 on copyright and related rights in the information society art.2
109 Rosati contended that England is the most impacted jurisdiction in this area as it is at the greatest divergence from European jurisprudence, Rosati (2011) p. 749
110 Bezpecnostni Softwarova Asociace - Svaz Softwarove Ochrany v Ministerstvo Kultury (C-393/09) (2011) E.C.D.R. 3 (ECJ (3rd Chamber))
111 Bainbridge stated that a blanket standard would be unthinkable, Bainbridge (2010) p. 41.
112 Newspaper Licensing Agency Ltd v Meltwater Holding BV (2010) EWHC 3099 (Ch); (2011) E.C.D.R.10 (Ch D). This case saw a treatment of the CJEU decision on similar facts to Infopaq.
113 Rosati (2011) p. 752
114 Rosati (2011) p. 752
115 Francis Day & Hunter Ltd v Bron (1963) Ch. 587 (CA).
116 Coffey v Warner/Chappell Music Ltd (2005) ECDR 21
117 Sawkins v Hyperion Records Ltd (2005) EWCA Civ 565; (2005) 1 W.L.R. 3281
118 Rosati (2011) p. 754
119 Bezpecnostni Softwarova Asociace - Svaz Softwarove Ochrany v Ministerstvo Kultury (C-393/09) (2011) E.C.D.R. 3 (ECJ (3rd Chamber))
120 Football Dataco Ltd v Brittens Pools Ltd (2010) EWCA Civ 1380; (2011) E.C.D.R. 9 (CA (Civ Div))
121 Rosati (2011) p. 754
122 Bingham J. in Designer Guilds said that ‘skill and labour’ were required from an author (although it was not clear whether that related to originality or creating a work). Bainbridge believed there is conflation between ‘originality’ and ‘work’ (Bainbridge, 2010, p. 43), the use of differing terminology is ‘unfortunate’ (Id. p. 44) and the use of differing tests ‘regrettable’ (Id.).
123 Bainbridge (2010) p. 44
124 Colston and Galloway (2010) p. 291
125 Bamgboye v Reed (2002) EWHC 2922 (QB); (2004) E.M.L.R. 5 at 72
126 Cala Homes (South) Ltd v Alfred McAlpine Homes East Ltd (No.1) (1995) FSR 818
127 Zemer (2006) p. 287
128 McDonagh (2012a) p. 64
129 Gravells (2007) p. 288
130 Arguably Dr. Sawkins did not intend to create an original musical work, he intended to replicate a partially surviving one.
131 Rahmatian (2009) p. 564
132 At para. 24. Counsel argued that the writing down of these indicators is not a musical work if taken separately from their playing and that this music, including the effect of the performance indicators, had been heard in Lalande’s time. The court addressed this concept by looking at whether performance indicators as performed were a musical work distinct from the notation. The performance indicators added by Sawkins were sufficiently substantial to be a musical work, thus copyrightable.
133 This case departs from precedent in that, to all appearances, Dr Sawkins created a ‘slavish copy’ of a pre-existing musical work but was still afforded a copyright in his version. The form of expression is the sound of the music, not the written transcription.
134 Arnold (2010) p. 158
135 Fisher v Brooker (2007) E.M.L.R. 9
136 Fisher v Brooker (2007) E.M.L.R. 9 at 273
137 Fisher v Brooker (2007) E.M.L.R. 9 at 263
138 Fisher v Brooker (2007) E.M.L.R. 9 at 269
139 Fisher v Brooker (2007) E.M.L.R. 9 at 271-2
140 Arnold (2010) p. 162
141 Redwood v Chappell (1982) RPC 109
142 Bainbridge (2010) p. 39
143 McDonagh (2012a) p. 68
144 McDonagh (2012a) p. 67
145 Arnold (2010) p. 163
146 Including an intention to create, according to Pila, in reference to Mummery LJ in Sawkins. Pila (2008) p. 543
147 Authorship is dealt with under S9 of the CDPA and Joint Authorship under S10
148 McDonagh (2012a) p. 71, although Zemer believes that this should be changed as the process is entirely different (Zemer, 2006, p. 291)
149 Robin Ray v Classic FM (1998) FSR 622
150 Godfrey v Lees (1995) E.M.L.R. 307 (Ch D)
151 See Hadley v Kemp (1999) E.M.L.R. 589 (Ch D), Fisher v Brooker (2007) E.M.L.R. 9 and Beckingham v Hodgens (2002) EWHC 2143 (Ch); (2002) E.M.L.R. 45
152 Free (2002) p. 95
153 Free (2002) p. 96
154 Arnold (2010) p. 159
155 Barron (2006) p. 26
156 Fisher v Brooker (2007) E.M.L.R. 9
157 Fisher v Brooker (2007) E.M.L.R. 9 at 272
158 Fisher v Brooker (2007) E.M.L.R. 9 at 263. ‘Distinctive and memorable…hugely famous’
159 Fisher v Brooker (2007) E.M.L.R. 9 at 272-273
160 Robin Ray v Classic FM (1998) FSR 622
161 Zemer (2006) p. 288
162 Arnold (2010) p. 157
163 Free (2002) p. 93
164 Zemer (2006) p. 287
165 Griffin (2010) p. 654
166 Griffin (2010) p. 658
167 Bently (2009) p. 192
168 McDonagh (2012b) p. 401
169 McDonagh (2012b) p. 422. US law, for example, provides far more leeway to copyists. See Bunker (2010) on the transformative use doctrine.
170 Versteeg (2002) p. 142. This terminology was suggested in place of the US requirement for creativity; equally relevant in England, particularly regarding adaptations.
171 Griffin (2010) p. 658
172 Pila (2008) p. 544
173 McDonagh (2012b) p. 405
174 Arewa (2010) p. 598
175 Lewis (2005) location 296/2429
176 Young (2011) p. 971
177 Barron (2006) p. 30
178 Barron (2006) p. 47
179 Rahmatian (2010) p. 870
180 Merchandising Corp v Harpbond (1983) FSR 32 (CA)
181 Pila (2008) p. 542
182 Barron (2006) p. 36
183 Pila (2008) p. 536
184 Arnold (2010) p. 154
185 Bently (2009) p. 180
186 Bently stated that the types of sound that are regularly notated are more likely to be found musical in court. Bently (2009) p. 187
187 Bently (2009) p. 180
188 Griffin (2010) p. 656
189 Arewa (2010) pp. 612-618
190 Arewa (2010) p. 589
191 Madison (2008) p. 699
192 Vaidhyanathan (2001)
193 Blanning (2009) p. 73
194 Griffin (2010) p. 665
195 Rahmatian (2009) p. 576