It seems sensible to begin by stating the obvious: if Martian anthropologists newly landed in Britain wanted to understand the peculiar human activity of music making and music listening we wouldn’t suggest that they ask a lawyer. Indeed, as a fellow social scientist, I would suggest that an ethnographic study of music makers and music listeners would quickly show that musicians understanding of what they do (and why) is systematically different from lawyers’ account of what musicians do (and why).
I can describe the differences here schematically:
a) The law treats music as a work, a commodity, intellectual property, something that can be owned and exploited. Musicians think of music as a process.
b) The law assumes music is authored, created by named individuals. Musicians know that music making is an essentially collaborative, a social process.
c) The law conceives a piece of music as something original, something new. Musicians know that ‘creating’ music is also, necessarily, an act of recombination. (For an excellent summary of this argument see McCann)
d) The law treats music as a finished product. Musicians experience music as always also a work in progress.
e) The law describes music in terms of notes and tunes. Musicians think of music in terms of sounds and textures.
In short, for the law music is a thing; for music makers and music listeners it is a performance. The underlying question for this website is whether these contrasting views can be reconciled.
One complicating factor here is that the legal account of music has significant institutional support. Musicians’ views do not. On the one hand, the law shapes and has been shaped by the development of a music publishing industry which is still organised around musical works and authorial rights; on the other hand, both academic and popular musicology are still rooted in Romantic ideas of great artists and great works (the canon), which mythologise the music making process in much the same way as the law (for obvious historical reasons).
One of the effects of both music industry and music academy thinking is a taken-for-granted status hierarchy in the way music making is explained—in terms of the contrasting roles of composer, arranger, conductor and performer; named artist, music worker and session player; record producer and sound engineer; record company, music publisher and so forth. Such roles are defined in terms of status differences which are the effect of contractual negotiations (and contractual power) rather than reflecting who actually does what in the studio or on the stage, who makes more or less of a contribution to the sounds made and heard on record or in live performance, and who really had what responsibility for the ‘music’ played and heard (see Frith 2012 and 2017). Popular music historians have thus long been familiar with songwriting credits assigned legally to all sorts of people who had little to do with the musical (as against commercial) process through which the songs were made and performed.
In general it is clear that legal arguments usually determine contractual arrangements that then shape public understanding of musical practice; it is less common for musical practices to determine contractual arrangements or to change the meanings of legal concepts. In this respect the campaign for performers’ rights is an interesting anomaly. Another example might be the development of ‘image’ and ‘identity’ rights in the context of celebrity culture and the consequences in terms of legal concepts of vocal integrity (see Samples 2017). Or consider the campaign to give traditional music the protection of international cultural heritage law and to develop the legal concept of ‘folklore expression’.
What interests me about these processes, though, is that rather than giving the law a more realistic sense of music making, they usually have the effect of subjecting music making to ever more complicated legal regulation (see McCann 2012). What remains unchanged is the legal version of Creationism and the law’s peculiar technological indeterminism--digital technology may often be described as having effectively undermined the economic logic of the music recording/publishing industries, but this is not how the law sees it. Its task, rather, has been to protect the industries’ historical rights within the new technological framework. And so, while I believe that music is now best understood as a service, the struggle continues to extend the scope of musical rights. Maybe those Martians should talk to lawyers first, after all.
Simon Frith (2012) ‘Creativity as a Social Fact’, in David J. Hargreaves et al eds.: Musical Imaginations. Multidisciplinary perspectives on creativity, performance, and perception (Oxford: OUP 62-72).
Simon Frith (2017) ‘Are musicians workers?’ Popular Music 36(1) 111-115.
Anthony McCann (nd) ‘Traditional Music and Copyright—the Issues’, https://pdfs.semanticscholar.org/b9de/e020396d8b182a0dd7236730bb01ef880ead.pdf
Anthony McCann (2012) 'Opportunities of Resistance: Irish Traditional Music and the Irish Music Rights Organisation, 1995-2000', Popular Music and Society 35(5) 651-681.
Mark C. Samples (2017): 'Timbre and Legal Likeness: The Case of Tom Waits' in Robert Fink et al eds.: The relentless pursuit of tone: timbre in popular music (New York: OUP).