by Shane Burke, Lecturer in Law, Cardiff University
Sound, as noted by Brandon LaBelle, through its intrinsic nature ‘disrespects borders, thereby making explicit the intensity of territory.’ He also states that in our efforts to capture and commodify sound we engage in a profound process through which we ‘toy with the present, undo origin and realign memory.’ Christian Metz has also pointed to a ‘primitive substantialism’ that is deeply embedded in our culture that distinguishes between primary qualities for the determination of objects, such as the visual and the tactile, and secondary qualities which correspond to the attributes of these objects, sound, scent and even particular elements of the visual order such as colour falling within this category. It is also the case, as Salomé Voegelin has argued, generally that ‘[s]ound’s ephemeral invisibility obstructs critical engagement, while the apparent stability of the image invites criticism.’
In terms of the relationship between sound and law, James Parker has averred that ‘law regulates sound, and when it does, most of the time it is both heavy handed and slow on the uptake.’ Correspondingly, the engagement between intellectual property law and sound has been a difficult one. It has been opined for example that there is an apparent inability of copyright law to protect sound, in this case the sound of music, due to the fact that as Anne Barron has noted, sound is simply ‘too amorphous to be an object of property.’
Arguably adding to the complexity of the landscape even further, there has also been a discernible cultural shift in relation to our dialogue and engagement with sound in recent decades and perhaps even earlier. This has been dubbed the ‘sonic turn’. The first mention of the ‘sonic turn’ is reported to have been by Jim Drobnick in 2004, when he commented that the advent of the ‘sonic turn like it pictorial predecessor, would depend on several factors, not least of which is the emergence of a critical mass of sound-infected theory and art.’ Thus, the reasons for the emergence of this most recent turn appear to numerous and interlinked. As evidence of this ‘turn’ there has been a proliferation of critical texts focusing on sound in the last two decades. There has also recently been a huge increase in the number and visibility of sonic artworks. The awareness of sound art in the public consciousness has been raised in the UK by ‘Lowlands’, the 2010 Turner Prize work of Susan Philipsz. The ‘sonic turn’ has now also been referenced in the context of marketing, branding and sound design and it associated literature. Gretchen Larsen & Maurice Patterson concluding ‘that the sonic turn does not simply present a set of new objects for enquiry, but rather offers a fresh analytical lens that provides a non-linguistic means of appreciating consumption.’
Whether focusing on contemporary sound art or contemporary sonic branding, a reoccurring theme in such practices is the proximity of the ‘aesthetic’ and the ‘real’. This linking perhaps stemming originally from the work of Marcel Duchamp as subsequently developed by the Conceptual art movement. In terms of sound art, what is different about it is that it challenges, to use the language of the artist Max Neuhaus, the ‘inadequacy’ of musical representation. The move from the concert hall coincides with the shift from ‘music’ to ‘sound’ as the use of ordinary everyday elements became more pervasive in the works of sound artists. An example of this is the 1983 work ‘Time Piece’ by Max Neuhaus, where microphones were installed on Madison Avenue to record the street sounds there. These sounds were then fed through a number of computers which altered elements such as the pitch. The transformed sound was then introduced back into the same environment, creating an extra layer of sound in the area. The work thereby drew attention to visual and spatial elements in the location through the introduction of modified or disconnected sound. In the realm of sonic branding, there has also been a drastic rise in the use of such ‘multisensory branding’ in recent years with the huge increase in our exposure to electronic gadgets and the use of sound therein. Such branding increasingly involves the use of generic sounds, in other words, sounds which are either an appropriation of the ‘real’ or involve the creation of sounds which are subtle variations on the ‘real’.
The question then remains as to how intellectual property law may or may not protect such innovative artistic and commercial expression. In terms of copyright law, it remains to be seen if those works which closely straddle the boundary between the aesthetic and the real would qualify as musical works for the purpose of copyright protection. The courts have been left to define what is, and is not, a musical work. Thus, in Sawkins v Hyperion the Court of Appeal stated that ‘the essence of music is combining sounds for listening to’. Mummery LJ refined this, stating that, ‘[m]usic is not the same as mere noise.’ However, the precise boundaries between ‘mere noise’ and sound art’s engagement with noise techniques may prove difficult to define. Christoph Cox has stated that, [w]e tend to think of ‘noise’ as a secondary phenomenon, as something derivative. Noise is disruptive. It disturbs or interrupts an initial state of calm. It interferes with communication and thought, making it difficult to hear, speak, understand or concentrate.’ Similarly, the composer Edgard Varèse, has also famously quipped that subjectively, noise is any sound one doesn’t like.’
Trade mark law has also come to be at the forefront of the commodification of sound through the growing possibilities of protection for sound marks. This however has also raised concerns in terms of how the law perceives sound, for example, in the context of considering the requirement of distinctiveness in light of the aforementioned sensorial heritage. The European Intellectual Property Office (EUIPO) describes distinctiveness as meaning ‘that the sign serves to identify the product and/or services in respect of which registration is applied for as originating from a particular undertaking, and thus to distinguish that product from those of other undertakings.’ Distinctiveness is adjudged from the point of view of an entity that is the average consumer, a legal fiction. Commentators have advanced the view that as more non-traditional marks, such as those sound marks, have seldom been used, consumers will not see them as indicators of source on their own, and therefore such marks cannot be what is called inherently distinctive, they must therefore acquire such distinctiveness by educating the public through advertising for example.
In light of the vast proliferation in writing on sound documenting and evidencing the ‘sonic turn’, it would appear that our relationship with sound may be changing. Perhaps it is even the case that it has been changing for some time, in 1977, R Murray Schafer, the Canadian composer and writer acknowledged that ‘[t]he soundscape of the world is changing. Modern humanity is beginning to inhabit a world with an acoustic environment radically different from any hitherto known.’ It is changing in relation to the cultural, the artistic and the commercial.
The struggles of intellectual property law, and the law more generally, in relation to sound, raises questions about how we listen, how we hear and how we perceive sound in terms of its ontology and veracity. Given the current developments as outlined here it would appear to be the case that sound will only challenge legal regimes to a greater extent as time progresses. A further legal awareness of the cultural context may be advisable given the changing landscape we appear to inhabit. A greater degree of critical engagement may be necessary in terms of our understanding of the distinctions between the concepts of music/sound/noise. Legal assumptions about the capacity of the average consumer in relation to their appreciation of sound marks that involve subtle variations on the ‘real’ may need to be challenged. Perhaps also a broader conversation needs to be had in relation to whether and which intellectual property rights should protect such creativity. In relation to expression that is quite nuanced in terms of its positioning between the aesthetic and the ‘real’, questions of how infringement may be dealt with is also something that would need further and careful consideration given the nature of the subject matter in question. The law also needs to further critically engage with sound and its surround discourse in order to renegotiation and perhaps traverse the heritage of visual dominance. In light of the ‘sonic turn’, this may be deemed all the more necessary as it is arguable that sensorily and culturally we are already some way down the road in relation to that process of transition.