It's obvious...right? A song is a short piece of music, usually with lyrics. But the law makes it more complicated.
I've written about a lawsuit by Marvin Gaye's estate before; my previous posts are about the song "Blurred Lines" by Pharrell and Robin Thicke. I recently read a New York Times article that references that lawsuit, along with several others, as it delves into the legal definition of a song. As a scholar who writes about copyright law, as well as the author of an in-production music theory textbook, this is an issue that is particularly interesting to me.
The author, Ben Sisario, recounts the recent trial in which Ed Sheeran was accused of plagiarizing Gaye's "Let's Get it On" with his song "Thinking Out Loud." The jury was not allowed to hear Gaye's recording when they made their decision (not guilty, ICYDK). Instead, they heard a digital recreation of the chords with a robot voice on lead vocal (there's a clip of it in the NYT article, if you're curious). But like...why? If Sheeran allegedly copied Gaye's recording, why not use said recording as evidence?
Because copyright law is notoriously slow to be updated! Currently, to submit a song for copyright protection, you can submit a recording. (N. B. The copyright of the recording is different from the copyright of the song. I've written about recording copyright, too, but here we're talking about songs. The copyright-holder of a song is usually the songwriter.) However, prior to the U. S. Copyright Act Revision of 1978, to copyright a song, you had to submit sheet music, rather than a recording. "Let's Get it On" was copyrighted in 1973. The object that is copyrighted, the song, is the information contained on the piece of paper that was submitted in 1973.
Hence the titular question: What IS a song? Is it a particular performance? Is it a chord progression, rhythms, a melody, and lyrics? Is a song entirely capturable on paper? Like, can you even write it down? That isn't a facetious question. If I were American singer-songwriter Norman Greenbaum and I wrote the song "Spirit in the Sky" in 1969, I would definitely submit it for copyright protection. It's a great song, and I would want to receive payment if another artist decided to cover it. Since it's 1969, and the 1978 revision to the U. S. Copyright Act has not yet occurred, I've got to present a paper copy of "Spirit in the Sky" in order for it to be protected. I've transcribed the opening guitar introduction here:
Listen to the beginning of the recording, and follow along with my transcription. Obviously, there is SO MUCH here that isn’t captured by this notation. The most salient aspects of this intro section are results of the guitar timbre. There is an octave doubling that sort of fades in and out, which made it difficult for me figure out how I could include it, and there's also the fuzz pedal, which traditional musical notation doesn't have a way to transcribe.
Nowadays, recordings can be used in infringement cases. But Sisario's article presents a possible solution for new cases that involve songs that were written before 1978: songwriters could submit recordings to the U. S. Copyright Office as supplements to their originally-filed sheet music (and Marvin Gaye's copyright holders have now done so). These supplemental recordings could be presented as containing defining elements of a song that were not able to be captured using traditional music notation. Historically, elements like timbre or groove were essentially deemed uncopyrightable because they weren't able to be notated. But this could potentially change everything, if it ends up being used in a new case about an old song. Stay tuned.
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