PaulA while back, I posted about how music copyright developed awkwardly out of a system of laws meant for books. I also explained how and why some of the terms we use in music copyright are archaic, counterintuitive and confusing.
But the slapdash development of music copyright has had other unintended consequences. One of them is that music copyright’s conception of authorship, the bedrock of copyright law, is often fatally flawed. The result is, in my view, unfairness, arbitrariness, and a system of copyright laws that fails to map onto and reward the many of the creative expressions it is meant to protect.
Here’s an example using one of my favourite songs: Mad World. According to the ASCAP/BMI shared repertoire search, the writer’s share of copyright for Mad World appears to belong entirely to Roland Orzabal of Tears for Fears, who first released the song in 1982.
Assuming they still have their copyright, songwriters, like Roland Orzabal, earn money for exploitations of their compositions. Performing Rights Organizations, like SOCAN in Canada, and BMI and ASCAP in the United States, license compositions for certain public performance uses (such as FM radio or streaming) and collect money on behalf of songwriters. So a cover of a song can earn the original songwriter money.
I like the Tears for Fears version of Mad World. But the version I love, and the one many people might know better, is the one by Michael Andrews and Gary Jules, released in 2002. That version actually charted higher than the Tears for Fears version, and went platinum in the UK.
Unlike the upbeat mood of the Tears for Fears version, Jules’ version starts with a soft, haunting piano line.
Throughout, the instrumentation, harmonies, melodies and overall mood make this version of Mad World truly beautiful. In fact, when Curt Smith of Tears for Fears covered it with his daughter, he covered the Gary Jules version, starting with that same haunting piano melody, but now played on guitar.
I’m just a drummer, and certainly no musicologist, but I don’t hear the Jules’ opening melody in the Tears for Fears version. There’s something vaguely similar about halfway in, but it isn’t the same. Nor do I hear the many other incredible arrangement choices, harmonies, and melodies of the Jules version.
So when you look up who wrote the Jules version, you would expect to see Roland Orzabal, plus whoever added those new elements to the Jules version, right? Wrong.
According to the shared ASCAP/BMI repertoire search and “the way things work,” Orzabal is the only writer listed. The ASCAP/BMI search also shows a list of artists that have performed Mad World (i.e. those who have recordings of it), and the most notable ones, Demi Lovato, Imagine Dragons, Adam Lambert – they all did the Gary Jules version of Mad World, with that same opening Jules melody.
Notably, that means that not only does Roland Orzabal appear to collect all the writer’s share royalties for performances of Gary Jules’ version, he also appears to collect all the writer’s share royalties for every cover of Gary Jules’ cover.
So what’s going on? Well, as I pointed out in that previous post, copyright in music compositions started out as sheet music – words and/or melodies printed on a page. On the composition side of things, it often hasn’t evolved all that far from there.
Other elements, like those I pointed out in the Jules version, may come into play in a copyright infringement lawsuit (or, like in the recent Ed Sheeran / Marvin Gaye lawsuit, they may not). But for some reason they don’t seem to come into play when we discuss composition and writing ownership for credits and royalties.
Far be it for me, a simple, Canadian music lawyer, to call for a worldwide overhaul of music copyright to address this pervasive issue. On the other hand, why not? It’s broken. Let’s fix it (assuming it isn’t irreparable, per my overly dramatic title).