#CRASSH – Bennett: Creative practice and intellectual property

Posted by in Blog, english, Konferenz, Musik, Urheberrecht

From 28th to 29th of March 2014 the conference “Creativity, Circulation and Copyright: Sonic and Visual Media in the Digital Age” took place in Cambridge at CRASSH. This is my summary of the talk „Who writes the songs? Creative practice and intellectual property in popular music’s digital production chain“ by Joe Bennett from Bath Spa University. He was live blogging at his website during the conference and he presents parts of his talk at this page. Joe Bennett’s access to the topic is a very broad one. He is involved in legal cases as a musicologist, he has done some ethnographic research and he did interviews. Moreover, he is also teaching songwriting. Here is his abstract:

In music, two objects can be owned – the composition (sometimes including a lyric as a ‘literary work’), and the sound recording. The separation of song and recording is the basis on which the music industry distributes monies, but equitable IP distribution becomes more difficult when creative individuals’ contributions (of melody, lyric, arrangement, performance or production) overlap or are non-­linearly created. In the 1960s it became increasingly common for performers to write their own songs; from the 1980s, democratisation of recording technologies gave songwriters and performers the opportunity to self-­produce; and by the early 21st century most digital home studios had more production power than the world’s leading studios had enjoyed only 30 years earlier. (1) These changes in creative context mean that songwriters no longer need to notate their work as they did in the early 20th century; production, lyric, melodic, arrangement and performance elements can be created, edited and adapted at any stage of the creative process. Non-­linear creative practice in song production has implications for ownership and copyright that may challenge the historical privileging of melody & lyric in popular music’s legal hierarchy. (2) This paper will provide examples of creative practice, and discuss the legal, musicological and ethical questions that 21st century song production presents for the music industry and for future music creators.

Bennett drew a picture of the „anti-romantic creativity“ by referring to Margaret Boden (2004) and Mihaly Csikszentmihalyi (1988). Boden is analysing the creative mind, myths and mechanisms. She comes up with three essential conditions for creativity: (1) new, (2) surprising and (3) valuable. She adds:

[We should] make a distinction between “psychological” creativity and “historical” creativity (P-creativity and H-creativity, for short). P-creativity involves coming up with a surprising, valuable idea that’s new to the person who comes up with it. It doesn’t matter how many people have had that idea before. But if a new idea is H-creative, that means that (so far as we know) no one else has had it before: it has arisen for the first time in human history. Clearly, H-creativity is a special case of P-creativity. […] But for someone who is trying to understand the psychology of creativity, it’s P-creativity that’s crucial. Never mind who thought of the idea irst: how did that person manage to come up with it, given that they had never thought of it before? (Boden 2004: 2 as quoted by Bennett 2012: 141).

At the same time Csikszentmihalyi is defining three parties which are involved in the definition of what is regarded as being creative: (1) individual (creator), (2) field (experts) and (3) domain (prior work):

In Csikszentmihalyi’s ‘systems model’, a creator creates new work that is validated by a ‘field’ of experts. If validated, it goes on to join the ‘domain’ of prior works, which in turn will inluence existing and future creators. This definition of creativity (that a work must not only be original but also must be an inluence on other creators) has rather a high threshold, much higher perhaps than the simple musical/literary uniqueness required to define a popular song as ‘original’ in copyright terms (Bennett 2012: 141).

Georg Fischer (2013, german) analysed creativity in a similar way in his diploma thesis „Creativity and innovation in the culture of musical sampling“. Based on this theoretical framework Bennett argued that huge parts of popular music can be seen as creative works. For intellectual property the destinction between the composition on the one hand and the sound recording on the other is a major challenge today. „Moore (2009) has alluded to the difficult necessity of separating ‘song’ from ‘track’ […]“ (Bennett 2011: 13). Furthermore, the question about what and how much can be copied legally is significant for current discourses on copyright in popular music as sampling has become an important technique of composing. Bennett continued his talk by showing several intersting examples which he considers to be somehow involved in the spectrum of creativity to illegality in songwriting:



Paloma Faith – Can’t Rely on You on MUZU.TV.

  • Puff Daddy copying The Police’s „Every breath you take“ in „I’ll Be Missing You“ legally by giving all the royalties to Sting who shares them with his band members according to Dangerous Minds:

  • The Verve sampling Andrew Oldham Orchestra’s „The Last Time“ in the song „Bitter Sweet Symphony“. Copyrights by The Rolling Stones have been involved in this case: „The matter was eventually settled, with copyright of the song reverting to Abkco. Songwriting credits were changed to Jagger/Richards/Ashcroft, with 100% of royalties going to the Rolling Stones.“ (Wikipedia)

  • The bass line and the funk of the cowbell accents of sexists and discriminatory but very successful „Blurred Line“ by Thicke and Pharrell have been regarded as a sound-alike to Marvin Gaye’s „Got to Give it up“:

  • The beginning of the „Best Song Ever“ by One Direction (2013, starting at 2:15) vs The Who’s „Baba O’Riley“ (1971, starting at 0:30) was raising the following question: Creative ideas have been copied but pitches have not been plagiarised?

These are great examples oh how copying is part of popular music – being it sampling, sound-alikes or other forms of references. All popular songs are partly derivative of itself. Bennett finished his talk by raising the follwing questions: Why are pitches better protected than other musical elements? Are we harming future creativity by enforcing a too rigid copyright? How do we reward non-songwriters?


See other summaries of the conference via the tag CRASSH. My trip to Cambridge was kindly supported by the foundation ius vivum.