Every breath you take, every cent you make….
An accident waiting to happen we’d call this one. Sting is being sued after 42 years for alleged unpaid royalties to bandmates Andy Summers (guitar) and Stewart Copeland (drums), on several songs including the iconic hit ‘Every Breath You Take’ (EBYT). It is a public secret the wretched threesome struggled during the recording of their final (yet wonderful album) ‘Synchronicity’, recorded in the legendary AIR studios (on a Neve console).
The digital paperwork for the suit is not yet available because a trial date has not been set, leaving key legal details unknown.
Nonetheless, the conflict stands out in a couple of ways:
1. 42 years seems not long enough to find a resolution for a simple conflict about a writing credit;
2. People have feelings and sometimes huge ego’s: fixing a people problem requires another set of skills than blunt legal force;
3. Knowledge of music rights is essential for every musician: not every creation is copyrightable.
Copyright claim
The music creation process is messy, non-linear and in the Police’s case, legend George Martin (the fifth Beatle) was hauled in to tame the fighting maestros, as producer Hugh Padghman failed to break up the physical fights.
Sting is a master songsmith and most of the hits were written before forming ‘The Police’. EBYT existed as a demo in Sting’s songbook. EBYT’s demo was recorded on an 8-track and provided a solid delineation for the song in terms of the main riff, the vocal melody and already completed lyrics. [1] The original Hammond organ part was replaced by Andy Summer’s guitar part. In a Rick Beato’s interview, Summers talks about how his riff came into existence. Copeland’s drum part on EBYT is the result of multiple overdubs and cutting tape with a razor blade and pasting every percussive element into a full drum track, with the kick coming from a drum machine. In each instance, Sting decided what was going on the record.
From a copyright perspective, Summer’s riff is straightforward: an arpeggiated motif over a standard chord progression (I – vi – IV – V). In an interview Stings says the inspiration came from the song ‘Stand By Me’ which has the same chord progression. Summers allegedly had Béla Bartók violin duets in mind as an inspiration for the guitar riff.
What makes Andy Summer’s guitar riff so memorable is the production of it: two overdubs panned L and R, delay and chorus effects and his 1962 Fender Stratocaster. Summers left a lasting imprint on the sound of EBYT. The magic of EBYT lies in the simplicity of the song and the lusciousness of the production. Not a small feat to pull off pre digital audio workstations.
Summers main argument is that the guitar riff is the backbone of the song. That may be true, but that means nothing in terms of copyright protection. Not everything composers write can be protected and that is not easily accepted. Whether or not a piece of music is copyright protected can only be determined by a factual musical analysis first and then translated into the legal context. In other words, Summers and Copeland’s claim may not be as clearcut as they may think.
The threshold for originality required to obtain copyright protection is low and surely the song EBYT as a whole easily passes the originality threshold. The guitar riff itself may be another question. Arpeggiated ninth chords aren’t original in itself and considering the Bartok possible prior art, the riff may lack the required originality for copyright protection. However, some legal systems, such as the Dutch one, grant copyright protection to a combination of unprotected elements. The combination of the guitar riff with the other melodic parts in the song will pass the originality threshold. The claimants will have to prove the creation process and their contributions, and that may be tricky after 42 years. Additionally, musicologists will be involved to assess the contributions of Copeland and Summers. When this case goes to trial, recreating the recording process will depend mainly on personal recollections and analysing tapes, if those still exist.
Documenting the creation process
The question is whether this drama could’ve been prevented. Documenting the creation process of your songs and recordings is essential nowadays. Luckily technology enables creators to easily save every single session in a DAW. The documenting process requires discipline from the creators. In practice, many creators overwrite their DAW-sessions and in case of a dispute are unable to demonstrate the creation process. In the early 80s though, that technology was not available.
The ideal route to avoid misery later is to have signed split sheets and band agreements, clearly outlining all authors copyright shares and rights to compensation. In this case, neither a split sheet nor a band agreement appears to exist. The practice of using split sheets and band agreements comes with its own set of challenges.
Split sheets: Authors dread bringing up a conversation about copyright/neighbouring right splits during a writing session. Fearful to kill the vibe, this business conversation often comes later. In practice, split sheets are hardly ever signed in the studio. Even if authors may agree in a session to a split and even sign a split sheet, afterwards managers, publishers are involved, and they may disagree with the authors’ decisions and challenge the agreed split.
Band agreements: Band agreements are often used between band members to clearly establish each band members obligations and rights. With Sting being the driving force in the Police as the main songwriter and decision maker of the band’s artistic direction, The Police was perhaps never intended to be an equal partnership. Quite often, lead singers hire freelance bandmembers that even though they are a continuous part of the band, they never enjoy the same rights or remuneration. I doubt Sting would’ve ever agreed to drafting a band agreement.
Anything in the music industry is hardly ever ideal, so rarely the proper agreements are in place. This is partly due to a lack of proper knowledge with creators about music rights. In the 80’s this was even more so.
There is another factor that possibly contributes to parties not making adequate arrangements in time:
Publishing agreements: Publishing agreements usually contain a clause that obliges an author to submit a song as soon as it has been written, even if it is incomplete or only a few bars of a riff exist. That is problematic. Publishers exert their claim on a song this way, but it can put writers in unfavourable positions: the song is not finished, other authors may be brought in to work on the song…Only when a song is finished in the eyes of the composer(s), a song should be submitted to the publishers. That gives the authors time to finalize the song and agree on the copyright splits among themselves first.
42 years is a long time to hold a grudge
Even though Sting has the largest net worth, Summers and Copeland have financially thrived as well. This escalation to litigation is not about money. Summers and Copeland always lived in Sting’s shadow, despite being fantastic musicians. It seems this dispute is not a legal issue but is the endgame in a clash of personalities, unaddressed grievances, radical demands. Additionally, Summers knew in 1982 they had a hit record with EBYT, why did not fight for his writing credit back in the day?
Based on the reporting on the case, lawyers on all sides have tried for years to reach an amicable solution. When the dynamics of the conflict are misunderstood and thereby missing a small window of opportunity to de-escalate the conflict, the deadlock is created at the wrong time. In that case, the negotiation is done. Parties choose disagreement, meaning one or more parties believes there is a benefit from the disagreement. If 42 years aren’t enough to solve a simple conflict about a royalty split, it is unlikely the threat of litigation would revive stalled negotiations. By choosing litigation, the frenemies have given the conflict out of their hands and the courts will now have to decide.
What are the key takeaways from this case?
1. Document the creation process: do not overwrite your DAW-session files.
2. Educate yourself on music rights and the business side of the music industry.
3. People, friendships and feelings can be complicated, it is not unprofessional to discuss the business side of music creation.
4. Negotiate proper compensation, music rights as soon as possible and lay down the arrangements in written agreements.
5. In times of conflict, don’t miss the window of opportunity to reach an agreement.
[1] https://www.soundonsound.com/techniques/classic-tracks-police-every-breath-you-take
