Lecture traces musical lineage, questions musical copyright laws

November 25, 2008Duke Law News

Nov. 25, 2008 — Lecturing to a capacity audience on Nov. 24, Professor James Boyle used the lineage and commercial fate of an internet hip-hop hit to illustrate the chilling effect copyright laws have on musical creation. Boyle traced the evolution of a song protesting the government’s reaction to Hurricane Katrina back to its hundred-year-old African-American spiritual roots when he delivered the Fall 2008 “Information Ecology” lecture sponsored by the Center for the Study of the Public Domain.

The mixed-media lecture, “A Song's Tale: Mashups, Borrowing and the Law,” derived from his new book The Public Domain: Enclosing the Commons of the Mind, published this month by Yale University Press.

Boyle, the William Neal Reynolds Professor of Law, focused on a song by a Houston hip-hop duo, The Legendary KO. “George Bush Doesn’t Care About Black People,” took its title and inspiration from a statement made by rapper Kanye West during a TV fundraiser to benefit Katrina victims. Micah Nickerson and Damien Randle, who had volunteered as relief workers in New Orleans, digitally mixed West’s words and samples from his hit song, “Gold Digger,” with their original lyrics and released the song on the Internet just days after the fundraiser aired.

Soon accompanied by a video created from spliced images of news footage of the disaster, the song never reached listeners through network television or commercial radio, Boyle explained, because it violates laws governing the copyright of the songs from which it borrowed.

Borrowing as norm
In “Gold Digger,” a lament about a greedy girlfriend, West borrowed from Ray Charles’s “I Got a Woman,” Boyle pointed out.

“This song, ‘I Got a Woman,’ is actually a defining moment in Ray Charles’s musical development,” he said. “It is hailed as being… the song that gave birth to soul music, and is certainly one of a few that actually launched an entire musical movement. Soul, of course, born of a fusion of rhythm and blues on the one hand, and of gospel on the other, and Charles is one of two or three artists at most who really introduced this new musical genre.”

Charles’s ability to meld musical styles was a product of his intentional mimicry, Boyle said, quoting Charles on his attempts to duplicate Nat King Cole’s elegant croon. “He said ‘During all the years I was imitating Nat Cole, I never thought twice about it, I never felt bad about copying the cat’s licks. To me it was practically a science… To me it just made sense to study his technique. It was like when a young lawyer, just out of school, respects an older lawyer. He tries to get inside his mind, he studies how he writes up all his cases, and he’s going to sound a whole lot like the older man.’”

Charles seems to have copied his song from The Bailey Gospel Singers’ “I’ve Got a Savior,” which was written and originally performed by Clara Ward and the Ward Singers, Boyle said.

“What you have here is Ray Charles and his trumpeter taking a song that had actually been published and recorded in 1953, two years before, and they were driving across the country between concert dates, they heard this song on the radio… and they decided, ‘Oh, this would be a really good soul song,’” Boyle said. “They simply took the song, they took out the word ‘savior’ and replaced it with ‘woman,’ they obviously changed it stylistically… but it is effectively the same song, with the same lyrical structure, the same melody.”

Rather than simple piracy, each new version of the song has been a radical redefinition, and in Charles’s case, a genre-creating fusion, Boyle said.

“The point here is, I think, a very simple one. The Legendary KO samples Kanye West, who uses a fragment from Ray Charles, who might have taken material from… Clara Ward, who herself borrows from a gospel standard that in turn was based on a spiritual. The chain of borrowing I’ve described here has one end in the hymns and spirituals of the early 1900s and the other in the 21st century’s chaotic stew of digital remix, sampling and mashup.

“And along the way of this musical journey we actually have the synthesis of the old and the creation of new musical genres – soul did not exist as such in the 1940s, it was precisely this process of fusion that created it. The message certainly changes: The exalted savior becomes the open-pursed, good-natured lover of Mr. Charles, then the grasping gold digger of Mr. West, and then it’s entirely changed to become a hook with which to beat George Bush and his failed response in Hurricane Katrina.”

Copyright trumps creativity
For Ward and Charles, taking and adapting other artists’ music was simply an artistic norm. It wasn’t part of the musical culture to use copyright laws to keep other musicians from borrowing your songs in the ‘40s and ‘50s, Boyle said, and copyright laws were less strict. But modern copyright laws, he said, fly in the face of the kind of musical duplication and borrowing that has been commonplace in every genre.

The copyright period has been extended several times since Charles helped create soul music, and each time it was extended retrospectively, Boyle said. Now, depending on the circumstances, most musical compositions are copyrighted for about a century. “The freedoms that Ray Charles says that he used to create his song are denied to any of the following artists, who want to take his work and add to it,” Boyle said.

The codification of creativity has resulted in a particularly modern, legalistic way of defining culture, he pointed out. “This is something disturbing. We are moving forward with a set of assumptions which is that culture gets made by regulating the most atomic form of it like stock certificates.”

A wealthy producer like West can afford the licenses necessary for “Gold Digger,” but the legal and financial impediments to using another artist’s work effectively block the mass release of a song like The Legendary KO’s Katrina protest, Boyle noted. And while the Internet provides opportunities for short-term digital end-runs around copyright laws, musical culture and society generally are penalized by those laws, he said.

“Here is the thing that I think is sad,” said Boyle of the Katrina mash-up controversy. “Here is this song, it was out within three days of the initial collapse of the levees. It never appeared on a single commercial TV station, it never appeared on a single commercial radio station, the people who were portrayed in the song and the videos never saw it. The only people who saw it were people with high-speed internet connections. The people it was describing were actually outside of its ambit… Why?

“It wasn’t because of the dirty lyrics… It wasn’t because of the criticism made of Mr. Bush… It was because copyright law acted as a one-way filter, preventing this from entering into our national conversation. And that, regardless of what you think of the video or the song, is something that impoverished us.”
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