Acknowledgments & Further Reading
We are standing on the shoulders of giants. J. Peter Burkholder’s magisterial set of works on musical borrowing—he literally wrote the book(s) on the subject—was our constant guide. Professor Michael Carroll is a pioneer of the history of copyright and music and many of his insights are reflected here. Professor Olufunmilayo Arewa has written extensively about musical borrowing, appropriation and copyright. Her work was an inspiration. Our colleague and co-teacher, Dr. Anthony Kelley of the Duke Music Department provided a composer’s insights more times than we can remember. But our debts go far beyond the people mentioned here. Below is a lengthier list of acknowledgments and further reading, while the references page lists sources for each page and every point we make. (We are geeks. So sue us.) We would also like to thank our indispensable colleague Balfour Smith, who lettered and colored the comic and wrangled the digital files over countless versions. We have been helped over the years by many research assistants: Peter Berris, Cody Duncan, Cory Fleming, Branch Furtado, Justin Greenbaum, Federico Morris, Dan Ruccia, and Michael Wolfe. Finally, we would like to acknowledge the generous support of the Ford and Rockefeller Foundations and of the Duke Law School. Errors are ours alone.
This is a book about borrowing. And scholars are borrowers. Massive borrowers, whose only surety is the promise to “pay it forward.”
We have benefited from so many sources—colleagues, scholars we have never met, online resources, blogs, books about the Renaissance music scene, or the Mississippi Delta, or classical music or the blues. What follows here is not a complete list of our sources. Instead of offering that here and making the book 400 pages long, we’ve provided an extensive set of references for the comic online here: https://law.duke.edu/musiccomic/references. But what follows is a good place to get started for the person who is interested more generally in the comic’s themes, as well as a heartfelt “thank you” from us to those whose work informed our research.
The History of Western Musical Borrowing
Everyone interested in the history of borrowing in Western music should begin with the work of Professor J. Peter Burkholder. We consulted his work extensively. In particular we relied upon:
- The “Borrowing” section Professor Burkholder wrote for Grove Music Online http://www.oxfordmusiconline.com/public/book/omo_gmo (part of Oxford Music Online). Unfortunately, this is behind a paywall. This resource offers exhaustive details about borrowing in Western music through articles that run from medieval monophony and polyphony to Renaissance music, various classical periods, “art music,” and jazz.
- Burkholder also compiled with Andreas Giger and David C. Birchler an online resource called “Musical borrowing: an annotated bibliography” (formerly available online at http://www.music.indiana.edu/borrowing/). As of December 2016, that site is offline because of a 2015 cyberattack. We hope to see its return soon.
- J. Peter Burkholder, All Made of Tunes: Charles Ives and the Uses of Musical Borrowing (Yale University Press, 1995), a book on borrowing in the work of the American modernist composer Charles Ives.
- Moving beyond borrowing alone, the broader history of Western music is covered in J. Peter Burkholder, Donald Jay Grout and Claude V. Palisca, A History of Western Music (Ninth Edition) (W.W. Norton & Co., 2014).
Apart from Professor Burkholder’s prodigious oeuvre, we found many other works useful. Here are a few that are particularly worthy of note. A fuller listing is in the online reference guide to the comic.
- Honey Meconi, ed., Early Musical Borrowing (Routledge, 2004)
- Norman Carrell, Bach the Borrower (Allen & Unwin, 1967)
- John T. Winemiller, “Recontextualizing Handel’s Borrowing,” The Journal of Musicology (Autumn 1997)
- David Metzer, Quotation and Cultural Meaning in Twentieth-Century Music (Cambridge University Press, 2003)
Law and Musical Borrowing
Despite its fascinating features, music’s relationship to copyright—through history—has been a subject that until relatively recently received little scholarly attention. The articles and books noted below changed that. Carroll’s series of articles is a magisterial introduction to music copyright’s history. Arewa writes sensitively of music, property and cultural appropriation—particularly across racial lines. Boyle illustrates the story of musical borrowing and copyright with a 100-year long history of a protest song written after Hurricane Katrina (told in the “I Got A Mashup—A Song’s Tale” section of this comic, pp. 201–222). Vaidhyanathan and McLeod were the first seriously to engage with the cultural and aesthetic effects of restrictive legal regulation on musical borrowing, particularly in rap and hip-hop music. Together with the work of Lessig, their scholarship has defined the field. Greene has written extensively about the intersection of music, copyright, and race. McLeod and DiCola have offered the definitive account of the law and culture of digital sampling. Demers provides a musicologist’s perspective on these issues.
- Michael W. Carroll, “Whose Music Is It Anyway?: How We Came to View Musical Expression as a Form of Property,” University of Cincinnati Law Review (Summer 2004) and “The Struggle for Music Copyright,” Florida Law Review (September 2005)
- Olufunmilayo B. Arewa, “From J.C. Bach to Hip Hop: Musical Borrowing, Copyright and Cultural Context,” North Carolina Law Review (January 2006); “Copyright on Catfish Row: Musical Borrowing, Porgy and Bess, and Unfair Use,” Rutgers Law Journal (Winter 2006); “Blues Lives: Promise and Perils of Musical Copyright,” Cardozo Arts and Entertainment Law Journal (2010)
- James Boyle, The Public Domain: Enclosing the Commons of the Mind (Yale University Press, 2008), Chapter 6 “I Got A Mashup.” This book is freely available online at http://www.thepublicdomain.org/download/.
- Siva Vaidhyanathan, Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity (NYU Press, 2001)
- Kembrew McLeod, Owning Culture: Authorship, Ownership, and Intellectual Property Law (P. Lang, 2001)
- Lawrence Lessig, Remix: Making Art and Commerce Thrive in the Hybrid Economy (The Penguin Press, 2008); Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity (The Penguin Press, 2004)
- Kevin J. Greene, “Copyright, Culture & Black Music: A Legacy of Unequal Protection,” Hastings Communications & Entertainment Law Journal (Winter 1999)
- Kembrew McLeod and Peter DiCola, Creative License: The Law and Culture of Digital Sampling (Duke University Press, 2011)
- Joanna Demers, Steal This Music: How Intellectual Property Law Affects Musical Creativity (University of Georgia Press, 2006)
When it comes to the way that the structure of economic incentives affects music, there is no better resource than:
- Frederic M. Scherer, Quarter Notes and Bank Notes: The Economics of Music Composition in the Eighteenth and Nineteenth Centuries (Princeton University Press, 2004). (Professor Scherer judiciously decides not to present the reader with any conclusions about which is superior: music developed under a patronage system, or music written for some form of mass market sale.)
These are also excellent resources on borrowing, remix, and musical creativity:
- David Byrne, How Music Works (McSweeney's, 2012)
- Jonathan Lethem, "The Ecstasy of Influence," Harper's Magazine (February 2007)
- Greg Kot, Ripped: How the Wired Generation Revolutionized Music (Scribner, 2009)
We made extensive and grateful use of an excellent collection of historical documents compiled by the University of Cambridge, “a digital archive of primary sources on copyright from the invention of the printing press (c. 1450) to the Berne Convention (1886) and beyond.” You can find some of the documents we refer to in this book, from Petrucci’s patents to Orlando di Lasso’s printing privileges (filed under the alternate name Orlande de Lassus), in this database.
- Primary Sources on Copyright History (1450–1900) http://www.cipil.law.cam.ac.uk/primary-sources-copyright-history-1450-1900
Another extremely useful website is the “Music Copyright Infringement Resource” sponsored by Columbia Law School and the University of Southern California Gould School of Law. There, you can find judicial opinions from over a hundred music copyright cases from 1844 to the present, along with commentary and relevant sheet music and audio files.
- Music Copyright Infringement Resource http://mcir.usc.edu/
Those interested in following endless trails of musical borrowing will enjoy the encyclopedic, crowdsourced “Who Sampled” website—you can choose a song and find both the songs it used, and the songs that in turn used it, along with the relevant audio.
- Whosampled http://www.whosampled.com/
The materials cited above—particularly the encyclopedic Grove Music Online, Burkholder et al.’s A History of Western Music, and Meconi’s Early Musical Borrowing, provide a wealth of information about Western music throughout history, including Renaissance music and “classical” music from the Baroque, Classical, Romantic, and 20th century periods. Here is a selection of additional resources on the music of Ancient Greece, the Middle Ages, and the Renaissance.
- William A. Johnson, “Musical Evenings in the Early Empire: New Evidence from a Greek Papyrus with Musical Notation,” Journal of Hellenic Studies (2000). For our discussion of Ancient Greek notation, we are particularly indebted to this article written by a Duke colleague, which casts light on Greek notation using a Roman-era papyrus.
- Thomas J. Mathiesen, Apollo’s Lyre: Greek Music and Music Theory in Antiquity and the Middle Ages (University of Nebraska Press, 1999)
- Anna Maria Busse Berger and Jesse Rodin, eds., The Cambridge History of Fifteenth-Century Music (Cambridge University Press, 2015)
- Richard L. Crocker, A History of Musical Style (Revised Edition) (Dover Publications, 1986)
- Richard L. Crocker and David Hiley, eds., The New Oxford History of Music: Volume II: The Early Middle Ages to 1300 (Second Edition) (Oxford University Press, 1990); Gerald Abraham and Dom Anselm Hughes, eds., The New Oxford History of Music: Volume III: Ars Nova and the Renaissance 1300–1540 (First Edition) (Oxford University Press, 1960)
Turning to more recent genres and American music, the following resources illuminate everything from how slaves influenced American music and the history of the banjo, to our national anthem, to genres such as jazz, blues, rock and roll, and hip hop. Many of these resources detail the impact of black music and the persistence of racial anxieties in response to new genres.
- Eileen Southern, The Music of Black Americans: A History (Third Edition) (W.W. Norton & Co., 1997)
- Laurent Dubois, The Banjo: America’s African Instrument (Harvard University Press, 2016)
- Brian Ward, Just My Soul Responding: Rhythm and Blues, Black Consciousness, and Race Relations (University of California Press, 1998)
- Mark Anthony Neal, What the Music Said: Black Popular Music and Black Public Culture (Routledge, 1998)
- Samuel A. Floyd, Jr., The Power of Black Music: Interpreting Its History from Africa to the United States (Oxford University Press, 1995)
- Mark Clague, Star Spangled Songbook (Star Spangled Music Foundation, 2015) (collecting reuses of the national anthem)
- Ted Gioia, The History of Jazz (Second Edition) (Oxford University Press, 2011)
- Paul Berliner, Thinking in Jazz: The Infinite Art of Improvisation (University of Chicago Press, 1994)
- Robert Palmer, Deep Blues: A Musical and Cultural History of the Mississippi Delta (Penguin Books, 1982)
- Holly George-Warren and Patricia Romanowski, eds., The Rolling Stone Encyclopedia of Rock & Roll (Third Edition) (Rolling Stone Press, 2001)
- Paul Friedlander, Rock and Roll: A Social History (Westview Press, 1996)
- Glenn C. Altschuler, All Shook Up: How Rock ’n’ Roll Changed America (Oxford University Press, 2003)
- Paul Miller (a.k.a. DJ Spooky, that Subliminal Kid), ed., Sound Unbound: Sampling Digital Music and Culture (MIT Press, 2008)
- Mark Costello and David Foster Wallace, Signifying Rappers (First Edition) (Ecco Press, 1990) (yes, that David Foster Wallace)
The comic features a fascinating cast of composers and performers, and the lives of many others informed our research. The sources cited above (especially Grove Music Online and A History of Western Music) offer biographical sketches of the classical composers we discuss early in the comic. For Stephen Foster, Scott Joplin, George Gershwin, Dizzy Gillespie, Robert Johnson, Chuck Berry, Little Richard, Elvis Presley, Jerry Leiber and Mike Stoller, Ray Charles, and the Beatles, here are selected resources.
- Ken Emerson, Doo-dah!: Stephen Foster and the Rise of American Popular Culture (Simon & Schuster, 1997)
- Edward A. Berlin, King of Ragtime: Scott Joplin and His Era (First Edition) (Oxford University Press, 1994)
- Howard Pollack, George Gershwin: His Life and Work (University of California Press, 2007)
- Robert Wyatt and John Andrew Johnson, eds., The George Gershwin Reader (Oxford University Press, 2004)
- Dizzy Gillespie, with Al Fraser, To Be, or Not…To Bop (Doubleday Books, 1979)
- Elijah Wald, Escaping the Delta: Robert Johnson and the Invention of the Blues (Amistad/HarperCollins, 2004)
- Bruce Pegg, Brown Eyed Handsome Man: The Life and Hard Times of Chuck Berry (Routledge, 2002)
- Michael T. Bertrand, Race, Rock, and Elvis (University of Illinois Press, 2000)
- Jerry Leiber and Mike Stoller, Hound Dog: The Leiber & Stoller Autobiography (Simon & Schuster, 2009)
- Charles White, The Life And Times Of Little Richard: The Quasar of Rock (Harmony Books, 1985)
- Michael Lydon, Ray Charles: Man and Music (Routledge, 2004)
- Ray Charles and David Ritz, Brother Ray: Ray Charles’ Own Story (Da Capo Press, 1992)
- Elijah Wald, How the Beatles Destroyed Rock ’n’ Roll: An Alternative History of American Popular Music (Oxford University Press, 2009)
- Walter Everett, The Beatles as Musicians: Revolver through the Anthology (Oxford University Press, 1999)
Sources on the earliest “technology” we discuss—notation—are listed earlier. Here are some excellent resources discussing the revolutions wrought by the advent of sound recording technology, radio, and the Internet.
- Mark Katz, Capturing Sound: How Technology Has Changed Music (University of California Press, 2004)
- Greg Milner, Perfecting Sound Forever: An Aural History of Recorded Music (Farrar, Straus and Giroux, 2009)
- Christopher H. Sterling and John Michael Kittross, Stay Tuned: A History of American Broadcasting (Third Edition) (Lawrence Erlbaum Associates, 2001)
- Russell Sanjek, Pennies from Heaven: The American Popular Music Business in the Twentieth Century (Updated Edition) (Da Capo Press, 1996) (a comprehensive look at how 20th century technological developments changed the music business)
- Whitney Broussard, “The Promise and Peril of Collective Licensing,” Journal of Intellectual Property Law (2009) (discussing the ASCAP antitrust consent decree)
- Paul Goldstein, Copyright’s Highway: From Gutenberg to the Celestial Jukebox (Revised Edition) (Stanford University Press, 2003)
- William W. Fisher III, Promises to Keep: Technology, Law, and the Future of Entertainment (Stanford University Press, 2004)
- Yochai Benkler, The Wealth of Networks: How Social Production Transforms Markets and Freedom (Yale University Press, 2006)
- Jonathan Zittrain, The Future of the Internet—And How to Stop It (Yale University Press, 2008)
- Michael D. Smith and Rahul Telang, Streaming, Sharing, Stealing: Big Data and the Future of Entertainment (MIT Press, 2016)
- Matt Novak, “Watching David Bowie Argue With an Interviewer About the Future of the Internet Is Beautiful,” available at http://paleofuture.gizmodo.com/watching-david-bowie-argue-with-an-interviewer-about-th-1791017656 (offering highlights from a prescient interview between David Bowie and the BBC, along with a link to the video)
Copyright Law and the Music Business
The Center for the Study of the Public Domain provides many resources on copyright law, all freely available online. In addition, the full text of the 1906 debates covered on pp. 89–91 of the comic is available on Google Books, and the Copyright Office offers useful information circulars covering the minutia of copyright law. A few prominent resources on music licensing and the music business are also included below.
- James Boyle and Jennifer Jenkins, Intellectual Property: Law & The Information Society: Cases & Materials (Third Edition, 2016), available at http://web.law.duke.edu/cspd/pdf/IPCasebook2016.pdf
- Keith Aoki, James Boyle, Jennifer Jenkins, Bound By Law? (Center for the Study of the Public Domain, 2006), a comic about copyright, fair use, and documentary film, is available at https://web.law.duke.edu/cspd/comics/
- The Center’s materials on orphan works are here https://web.law.duke.edu/cspd/orphanworks.html
- The 1906 debates are online in full at https://books.google.com/books?id=m7QvAAAAMAAJ
- The Copyright Office’s information circulars are available here https://www.copyright.gov/circs/
- Stanford University offers information about copyright and fair use at http://fairuse.stanford.edu/
- The Future of Music Coalition offers resources on music, law, and technology at https://futureofmusic.org/research
- Al Kohn and Bob Kohn, Kohn on Music Licensing (Fourth Edition) (Aspen Publishers, 2009)
- Donald S. Passman, All You Need to Know About the Music Business (Ninth Edition) (Simon & Schuster, 2015)
- M. William Krasilovsky and Sidney Shemel (authors), John M. Gross and Jonathan Feinstein (contributors), This Business of Music: The Definitive Guide to the Business and Legal Issues of the Music Industry (Tenth Edition) (Watson-Guptill Publications, 2007)
For the rest? Turn to the comic and just…“Pull.”