From Beethoven to Taylor Swift: copyright and the resurrection of the author

“She doesn’t write her own songs […] there’s a big difference between a songwriter and a songwriter who co-writes,” said Damon Albarn.

January 2023 marked the abandonment of a five-year copyright lawsuit alleging that ‘Shake It Off’ lifted lyrics from 3LW song ‘Playas Gon’ Play.’ This is not the only copyright scandal that Taylor Swift shook off last year, however, and Damon Albarn’s allegations of false authorship over co-written songs provided a minor prelude.

“I write ALL of my own songs. Your hot take is completely false and SO damaging,” was Swift’s victorious Twitter retort. For the singer, it would appear that writing and co-writing are interchangeable entitlements to authorship: a thorny legal issue when songs become million-dollar revenue streams and no agreement as to authorial share exists. In an era of global connectivity where lines of authorship are not clearly demarcated, who is entitled to reap the economic rewards of artistry, and what are the criteria for the ‘creator’?

The legislation and relevant case law

The principal copyright legislation in England and Wales is the Copyright, Designs and Patents Act 1988 (CDPA). This entitles the owner of a copyright protected work to do (and permit/prevent others from doing) certain acts in relation to it. However, legislative force has been softened by case law, and broad judicial discretion has created unsettling uncertainty for artists and pawns on the industry chessboard. For Roland Barthes (1915–1980, French intellectual and writer of ‘Death of the Author’), the author is killed by interpretation and intertextuality; the courts’ inherent subjectivity carries crucifying potential here.

Under Section 1 CDPA, copyright is a property right which subsists in original literary, dramatic, musical and artistic works (classic works). Sound recordings, films and broadcasts also fall within this section as derivative works, whose underlying subject matter derives from the classic works. A song is, therefore, a product of several ‘works’ giving rise to rights in its music, lyrics and recording(s).

Pursuant to Section 11(1), the author of a work is the first owner of any copyright in it. This is subject to Section 11(2), providing for employers’ ownership of employees’ works created in the course of employment. In respect of classic works, the author is the creator and first entitled to the fruits of commercial exploitation. To declare the ‘Death of the Author’ would have far-reaching consequences for a legal system so predicated on the rights and remedies of authors/owners.

It is in Section 10 CDPA, however, where ownership positions blur. The works of joint authorship are defined as those: ‘produced by the collaboration of two or more authors in which the contribution of each author is not distinct from that of the other author or authors.’ Case law has gone some way to clarifying these elements, but authorial endeavours are by no means clear cut. While mere alterations, additions or improvements will not suffice, a joint author does not have to make a contribution equal in terms of quantity, quality or originality. In Hadley v Kemp [1999] EMLR 589, members of pop group Spandau Ballet failed to persuade the court that they were entitled to royalties as joint authors, despite making changes to the principal songwriter’s, Gary Kemp’s, compositions during rehearsals and interpreting them in individual ways on their instruments, contributions were merely performative and claims to copyright co-ownership fell short. Park J stressed the undemocratic nature of the band and drew a clear distinction with collective ‘jamming’: sole author Kemp had strong, definite ideas and was clearly in charge of creation.

In crowning Kemp ultimate arbiter by virtue of his unwavering creative vision, the court aligned copyright law with romanticism’s glorified (and solitary) figure of author/genius composer, whose works embody divine inspiration and whose authorial status is immortal. Consider Beethoven, pouring over manuscripts with dripping quill to preserve a God given vision in musical text: a process crystallised in the CDPA’s ‘fixation’ requirement (requiring ideas to be recorded in permanent form) for a work to deserve copyright protection. Tom Taylor’s defence of Swift’s authorial status reinforces this ideology further: “[T]hose who have worked with her […] quickly pointed out that she arrives with fully formed songs, and they simply gild them with wider arrangements and production.” At first glance, the singular creator/author reigns supreme.

In Fisher v Brooker [2009] UKHL 41, [2009] 1 WLR 1764, organist of Procol Harum, Matthew Fisher, made the right kind of contributions for joint authorship in the arrangement of the song ‘A Whiter Shade of Pale.’ His improvised solo formed the hook of the entire work and iterations reverberated throughout subsequent bars: a stark contrast to the musicians’ slight contributions in Hadley v Kemp. Yet, whilst the case helped to clarify Section 10’s requirements for authorial entitlement, in raising the status of improvisation and personal expression, it brought the law into conflict with romanticism’s hallowed creator. The singular author in Hadley v Kemp clearly wielded monarchical control, whose status belied ‘joint’ qualification. Brooker, on the other hand, had to settle for co-writer in a collaborative band where ideas were shared and contributions mingled. The case heralded the advent of creative democracy and spurred a shift from romantic ideology to collaborative reality: the Beethovenian/Barthian author nears his/her end.

Kogan v Martin [2019] EWCA Civ 1645, [2020] ECDR 3; [2021] EWHC 1242 (IPEC), [2021] 5 WLUK 224, marked a decisive departure from authorial sovereignty with further clarity on Section 10. The case concerned authorship of the screenplay of ‘Florence Foster Jenkins,’ charting the thrills and spills of an heiress socialite who dreamed of fame as an operatic soprano. Notwithstanding her appalling voice, she became a celebrated cult American figure. Scriptwriter Nicholas Martin (NM) was credited as sole author of the screenplay. Following breakdown of the duo’s romantic relationship, protagonist and professional singer Julia Kogan (JK) claimed joint authorship. The court granted her authorial status worthy of a 20 per cent share in the copyright, laying down the following guidance:

• Collaboration: all collaborators must be separately capable of identification as author and there must be a common aim. Agreement to share authorship is not necessary, but recognition of a joint creative vision and conduct indicating common design are important.
• Contribution of an author: non-textual contributions (including song choice and dramatic portrayal) can suffice for joint authorship. Actual creation and decision-making are relevant but not decisive. JK’s selection of historical incidents for comedic effect (the infamous Carnegie Hall performance yielding devastating reviews, for example) deserved authorial respect.
• Whether contributions are distinct: contributions must be neither distinct nor separate. JK’s musicality and characterisation of the tone-deaf star pervaded the entire film, so sufficed.

Effectively, doing the writing and asserting overall responsibility for the finished work provide only partial insight into the dimensions of authorship; relationship politics and ‘messy’ creative realities (such as the multiple drafts and reworkings of the screenplay) are highly relevant. The Court of Appeal’s focus on intertextuality and connections thus affirmed the (co-)authorship model of Fisher v Brooker and muted romanticism’s omniscient creator further.

In dethroning the God-inspired author, however, Barthes creates a dichotomy between modern author (as scripter) and the process of creation. This author does not express, but inscribes; his/her labour weaves a work from pre-existing ideas, devoid of originality. S/he is mere copier. Copyright law, meanwhile, resolves this dichotomy; for a classic work to qualify for protection, ideas must be both ‘expressed’ and ‘original’ (CDPA, s 1(1)(a) and Baigent v Random House Group Ltd [2007] EWCA Civ 247, [2008] EMLR 7): composition must flow from the inspired inner self.

Yet Barthes’ vision of intertextuality and creative interaction is likewise enshrined in law via the CDPA’s recognition of derivative works, whose underlying source material is the classic creations.  Importantly, in contrast to classic works, there is no requirement that derivative works are original: legislation permits a ‘tissue of quotations’ void of originality and, as Taylor Swift made clear in her Playas Gon’ Play court declaration, ‘commonly used phrases and comments’ are a legitimate compositional source. Copyright law here brings the ‘author genius’ and his/her creative followers into a dialogue: the former’s masterwork is the latter’s creative inspiration. The Beethovenian/Barthian author may be dead, but the legal creator lives on and multiplies. And so, Section 10’s joint author is born.

Joint authorship

What Kogan v Martin left unclear, however, is the standard of contribution required for joint authorial title. The CDPA offers no definition of creditworthy contribution and sufficient input for one member of the judiciary may fail to reach the threshold for another. This subjectivity can only lead to a spiralling cycle of appeals and narrow majorities until further guidance is laid down, meaning that, in an industry dominated by ‘big name’ players, artists backed by reputed managers/record companies/publishers (with experienced legal teams on hand) may well succeed in suppressing the significance of a session musician’s input and shattering a well-founded claim to creative fame.

This subjectivity is also problematic in the judiciary’s application of Section 1 and categorisation of ‘work’ itself. At first instance, the Intellectual Property Enterprise Court in Kogan v Martin refused to remove NK from the pedestal of sole author because JK had not contributed sufficiently beyond the screenplay’s third draft. The final screenplay was, in effect, treated as a derivative work emanating from a first draft (intervening drafts were also separable derivative works conferring new sets of rights). The Court of Appeal, however, conceived it as a singular dramatic work uniting the various drafts that informed its completion. As a result, the fact that JK did not have significant input beyond draft three was neither here nor there: the screenplay marked the culmination of a creative process to which she significantly contributed (albeit at the earlier stages). In light of the film’s commercial success (grossing over $50m at the box office), restricting JK’s authorship to early drafts would have provided her with little (if any) economic reward.

In treating the finished work as a product of a creative polyphony, rather than a perfected ‘derivative’ draft, the Court of Appeal’s approach echoes Barthes’ depiction of the modern author: ‘the modern scriptor can thus no longer believe […that he must] indefinitely “polish” his form.’ The effect of diverging judicial discretion between trial and appeal courts, however, signals an urgent need to review the basic provisions of copyright law. Without clearer guidance, lesser names in the industry risk being deprived of rights as the courts ‘salami slice’ artistry and dismember creative dialogues to simplify authorship and keep the floodgates of competing ownership claims firmly shut.

Conclusion

As it stands, our legislation is out of step with contemporary creative discourse, offers inadequate protection to those who need it most and lags behind that of other jurisdictions. India has already recognised artificial intelligence (AI) as a ‘co-author’ and the Artificial Intelligence Virtual Artist (AIVA) was named as a composer/author by the French and Luxembourg Author’s Rights Society back in 2017. By comparison, the CDPA provides that copyright in jointly authored classic works expires 70 years after the last surviving author dies. With replaceable hardware amenable to infinite updates, AI can theoretically never die, meaning that copyright protection for modern creators would exist in perpetuity, and works lie forever beyond the public domain. The (co-)author most certainly is not dead here, but the law is far from fit for modernity.

Copyright control is slipping away and we risk returning to anachronistic territory as the CDPA fails to regulate romanticism’s immortal author, whose resurrection threatens to silence a choir of co-creative voices. At first glance, copyright and common law brought an outdated ideology (the God-inspired author) in step with the messy realities of modern creation, yet legal grounding remains inadequate. While the CDPA welcomed joint creators and navigated Barthes’ under privileging of originality, holes in the authorship test and consequential judicial subjectivity will only compound the industry’s power imbalances; even if crowned with a song writing credit, a creator’s ability to transfer and waive rights (including the right to be identified as author) means that industry giants will continue to seize ownership of protected works and top the remunerative beanstalk.

Copyright law and its progressive joint author remain haunted by the ghost of Barthes’ buried author - will legislative review be able to shake it off?

Phoebe Pexton is a graduate trainee at Vardags
vardags.com