There was always something there to remind me — but was it protectable?

June 2013

Music publishing, record labels, artistes


The Metro carried an interview with Sandie Shaw, a 1960s pop star who has reinvented herself many times over the years as, among other things, a psychotherapist and a litigant. As her Wikipedia entry states:

“Shaw also embarked on a successful legal battle to establish ownership of her entire recording catalogue and began working with contemporary acts and producers, reworking much of her 1960s and 1980s material. In 2003, Shaw licensed her recording catalogue worldwide to EMI, continued to develop her Arts Clinic, and began executive coaching and mentoring”. The Metro article alludes to this, as the following exchange shows:

“[Andrew Williams]: Did you have problems with legal aspects of your career? 

Yeah but I’ve always fought them and I’ve always won. I’d never take on anything I didn’t think I could win. I’m focused and never give up and if I don’t get what I want immediately I’ll stick at it and win in 15 years. There’s no reason for musicians to get ripped off any more. Artists now have an advantage because the middlemen have been cut out with the advent of digitisation”.

From this it sounds as though Ms Shaw, now 66, has a fairly positive attitude towards rights self-management which extends from the age of analogue to the digital era.

But what set this Kat thinking was not the thought of Ms Shaw fighting to regain her catalogue. Rather, it was the Proustian recall of the song that launched her UK career back in 1963, “(There’s) Always Something There to Remind Me” (here). This Bacharach and David composition has been recorded by many artists, this improbable collection including such unlikely bedfellows (metaphorically speaking) as Joan Baez, Dusty Springfield, Peggy Lee, The Four Seasons, José Feliciano, The Troggs, Dionne Warwick, Naked Eyes and Martha and the Vandellas.


It was the Sandie Shaw version of this song that first alerted this Kat to the notion of the musical composition as the product of a formula.  A brief instrumental introduction, just long enough to give the solo voice the key, leads to the first verse which itself leads to a real earworm of a refrain; then on to the second verse and again the refrain. The band then picks up, leading with the classic knock-out combination of an increase in volume and an upward key-shift for the third and final time through.  There is no way to end such a song other than the fade-out, two minutes and thirty six seconds after those first reassuring chords.  The lyrics were also of a type: simple, subjected to a rigid scheme of rhyme and laced with such memorable sentiments such as “I was born to love you/And will never be free”.

This formula, give or take a tweak or two, appears to this blogger to have been very common in the heydey of Messrs Bacharach and David. Similar in structure but lacking the key change is the same team’s Twenty Four Hours from Tulsa”, popularised by Gene Pitney but which gender- and location-specific lyrics that made it less suitable for endless cover versions (though this Kat is sure that Swedish singer Östen Warnerbring’s “15 minuter från Eslöv” was wonderful). Curiously, both songs make reference to cafes at which the lovers practise their nocturnal dancing.

Debate continues as to whether television programme formats are, should be or could be protected under a range of laws that protect copyright, rights in reputations and fair competition.  Equally, it is generally accepted that copyright, at least, does not protect a “style” (in England and Wales there is Gordon Fraser v Tatt [1966] RPC 505, which establishes that proposition in respect of greeting cards). Yet the old categorisations of authors’ works appear to have broken down after the Court of Justice in Case C-5/08Infopaq appeared to harmonise copyright protection in respect of works which are “the author’s own intellectual creation”.  To what might this loose formula apply in the world of music?

There is no doubt that both the music and the lyrics of Bacharach/David songs fit within that description — but, if we do not peg that definition to a list of recognised authors’ works, what is to stop a template for a song from attracting such protection too? And is the organisation of the words and the music, in relation to the orchestration and the volume that far different from databases, under Article 3 of Database Directive 96/9, is “which, by reason of the selection or arrangement of their contents, constitute the author’s own intellectual creation …”?  No doubt there were some crafty individuals who could have taken it to the USPTO and emerged with a patent — but that’s another matter.

For the avoidance of doubt, this post is not arguing that a formula upon which songs are written either is or should be entitled to legal protection. It is seeking to express the concern that, in terms of the evolution of European copyright law and the sudden, apparently irreversible shift of legislative power away from the European Council, Commission and Parliament and towards the Court of Justice of the European Union, anything can happen — and may well do so, given the rate of technological change which we are currently experiencing.

From Jeremy Phillips writing on the IPKat

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