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Steal This Music: How Intellectual Property Law Affects Musical Creativity

Joanna Demers

(University of Georgia Press)

Free Samples

Bad artists copy. Great artists steal.
—Pablo Picasso


The broad acceptance of the iPod and proliferation of websites from which to legally download music would seem to have solved, for the time being at least, the absurdity of record companies suing 14-year olds for copyright infringement. (Although on the corner of Broadway and 28th Street in New York City, the location of the original Tin Pan Alley, the bootleg-CD/DVD trade remains brisk, helping keep local constabularies occupied.) But according to musicologist Joanna Demers, something more crucial is at stake in today’s overreaching intellectual property regime, namely the future of musical creativity itself. It’s the subject of Steal This Music: How Intellectual Property Law Affects Musical Creativity, a concise, clearly written book that deserves to be read well beyond the academic community to which its university-press imprint might tend to restrict it.


To begin, Demers draws important distinctions between plagiarism, piracy and what she calls “transformative appropriation.” The first is copying someone else’s work and trying to pass it off as one’s own; the second is outright stealing of someone else’s product. The third entails using a preexisting work in the process of creating something new. The distinctions between these three concepts are now being blurred as intellectual property owners (who for the most part aren’t the creators) of compositions and recordings try to muscle their way to higher profits. The first two are generally agreed to be forms of theft, Demers notes, but the third is the way music (not to mention a lot of other art) has been created since the dawn of human culture. It’s also the area where creativity is becoming increasingly stifled by often exorbitant licensing fees and intimidating cease-and-desist orders. The intellectual property rights jihad has gotten more virulent as technology has made it easier for preexisting works to sampled, remixed, and otherwise used outside of “approved” (read: revenue-generating) channels.


The notion of copyright originates with the invention of moveable-type printing in the 15th century. Before that, all manuscripts were handmade and in essence originals; there were no mass-produced copies over which to exert reproduction rights. The first copyrights weren’t granted until the mid-1600s. Called “letters patent,” they were initially given to publishers not authors and amounted to the right to print documents the government had authorized for public distribution, such as official decrees and statutes, certain religious and scientific texts, and various transaction records like property deeds. A pirate press also operated during this period, presenting views opposed to the ruling order and publishing a variety of other material. With the rise of bourgeois society, controlling public opinion gave way to the pursuit of financial gain. In order to encourage competition, the British Parliament established the Statute of Anne in 1710 that for the first time granted copyright to authors, but only for 14 years after which the work entered the public domain. As few authors and composers could afford to print and distribute their own work, they usually transferred their copyright to publishers, a practice that continues today.


Music has presented copyright challenges nearly from the start, according to Demers, in part because the law has generally lagged behind technology. The first English, French and American copyright laws classified sheet music under books, protecting notes on the printed page but not live performance. In the mid-1800s, US copyright law was changed to restrict the performance of music that was part of a dramatic work such as a stage play or review. Later amendments gave copyright holders exclusive rights to all public performances of their work but proved nearly impossible to enforce due to the wide range of venues where music was played. The American Society of Composers, Authors and Publishers (ASCAP) was created in 1914 to administer performance rights and pay royalties to holders of copyrights on protected compositions. Still, innovations of the day like player pianos and wax-cylinder recordings eluded then-existing copyright law, which only covered human performance not mechanical replay. It wasn’t until the Sound Recording Act of 1971 that recorded media were included in copyright statutes.


In recent years, claims to intellectual property rights protection have expanded in an attempt to cover every contingency and thereby lock up every possible source of income. This has been achieved in part through the promotion of what are known as “neighboring rights,” i.e., rights that aren’t part of the original copyright but held to issue from it, such as trademarked performance style and so-called publicity rights over how a protected work can experienced or used. The rationale for this expanded definition (some might say power play) of intellectual property is the supposed moral right of authors and composers to profit from their creativity. As Demers notes, this is at best misleading if not blatantly dishonest as the primary beneficiaries aren’t the artists but the corporate conglomerates that control access to their work. And it might not benefit society either, Demers more importantly argues, as it can prevent new work from being made. This is especially true in recent times when preexisting recordings have served as source material for entirely new musical forms such as concrete and minimal music, hip-hop, and electronica, which question the model of authorship that has prevailed in Western society since at least the Romantic Age.


Indeed, Demers’ book serves one of its most useful functions by reminding readers that the Romantic conception of authorship, which includes composers, artists and other creative types, is exactly that: romantic. “The ideal of the author as a lone genius contradicts the fact that transformative appropriation has informed most musical traditions,” she observes. Folk music has always relied on shared and repurposed source material as has jazz improvisation. (For years, alto saxophonist Paul Desmond, to cite one example, tested listeners’ ability to pick out quotations from Prokofiev’s Peter and the Wolf in his solos; many of the bebop classics of Charlie Parker are based on the chord changes of standards like “How High the Moon” and “I’ve Got Rhythm.”) Mozart wrote variations on themes by Haydn, and Bela Bartok incorporated traditional Hungarian melodies into his compositions. John Cage wrote pieces where the “instruments” were radios and the “music” instructions to turn knobs this way or that, mashing up whatever was being broadcast over the airwaves at the time and place of performance. The scratchers, samplers, and loopers of today are carrying on with business as usual if by other technological means.


Besides the technology gap, copyright law, especially as it pertains to music, is marked by another serious disconnect: the tension between private property and culture. Private property as defined under classical economics is the exclusive domain of the individual laying claim to it whereas culture is the bond of shared knowledge, beliefs and practices, including art, music, and other creative productions, which holds society together. Early copyright law sought to resolve this discrepancy by extending exclusive rights only for a brief period. More recent copyright provisions allow exclusive control for upwards of a century and even more, dramatically tilting the scales in favor of long-term property interests. While Demers doesn’t add much to the arguments made by “creative commons” proponents like James Boyle, Rosemary Coombe (who writes the book’s introduction), and Lawrence Lessig, she does provide several case studies drawn specifically from music that illustrate the some of the unique dilemmas contemporary composers and performers face in negotiating the treacherous terrain of the current intellectual property environment.


There are some bright spots, however. Licensing restrictions over more well-known and thus higher-priced preexisting works have prompted samplers to seek out obscure artists and styles, bringing previously marginalized sounds into the musical mainstream. Some successful artists who have retained control over their catalogs, like George Clinton and David Byrne, have issued pre-cleared versions of their work to encourage transformative appropriation. Others like John Oswald and Negativland have simply defied the powers that be and sometimes faced the consequences. In their wake, anticopyright organizations such as MACOS (Musicians Against the Copyrighting of Samples) and VirComm (Viral Communications) have emerged that enable independent musicians to put their work directly into the public domain. These examples are proof positive that you just can’t keep human creativity down, yet Demers cautions that the debate on cultural expression is too important to be left to the self-interest of intellectual property rights holders, whether individual or corporate. It concerns us all. Steal This Music is an excellent introduction as to how and why.

Vince Carducci is Dean of Undergraduate Studies at College for Creative Studies, a private art and design school in Detroit. Follow him on Twitter @cultrindustreez.


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