Remix or Robbery?

July 14, 2017Duke Law News

Two copyright scholars present the history of music as an epic battle between creativity and control

In 1954, while riding along Route 66 on the way to a gig, Ray Charles and his trumpeter, Renald Richard, started singing along with — then improvising words to — a gospel song playing on the radio. Later that year, Charles released a single that retained the central melody of that song, “I Got a Savior,” and another gospel tune, “It Must Be Jesus,” but infused them with a driving blues beat. “I Got a Woman” became one of the first hits of a new genre: soul.

Style setters: Joe Cocker (top), based elements of his style on that of Ray Charles who, in turn, borrowed from Nat King Cole.Style setters: Joe Cocker (top), based elements of his style on that of Ray Charles who, in turn, borrowed from Nat King Cole.

As Professors James Boyle and Jennifer Jenkins ’97 tell the story in their new comic book, Theft! A History of Music, Charles was unapologetic about borrowing recognizable elements of a song about sacred love to create one that was decidedly secular, even carnal, in its outlook. He was simply fusing two essential elements of his creative DNA: the ecstatic gospel music of the church and the rhythm and blues of the clubs where he performed at night. Charles, who admitted to modeling his early performance style on that of Nat King Cole, didn’t mind when younger musicians later borrowed aspects of his; he saw it as a sincere form of flattery.

Clara Ward, who composed “I Got a Savior” (as well as another classic, “This Little Light of Mine,” that served as the template for Charles’ 1957 hit, “This Little Girl of Mine”) saw it differently. She was not flattered by his sacrilegious adaptation of her work. In today’s world, the story would probably end in a copyright lawsuit. Not so back then. Charles’ appropriation of songs and styles that influenced him to create new ones followed a tradition as old as music itself: musical borrowing, a practice that is much more heavily regulated today.

“We don’t mean simple copying — the reproduction of an entire song,” Boyle and Jenkins write in their end notes to Theft!. “We mean the borrowing and cultural cross-fertilization that creates more music. Church musicians borrowing from troubadours. The Marseillaise quoted in the 1812 Overture. The African polyrhythms that came to the United States during slavery. The fragments of another tune in a jazz solo. Whether it is the rhythm and blues and country music that built rock and roll, the fusion of blues and gospel that made soul music, or the wall of sound in early rap, the lines of borrowing and cross-fertilization go on and on.”

Boyle, the William Neal Reynolds Professor of Law, and Jenkins, the director of the Center for the Study the Public Domain, which published the comic, inhabit their book as cartoon avatars, passionate music lovers and intellectual property scholars “cursed to chart the line between freedom and control” in culture. Joined by a companion who is both a musician and musicologist, they traverse more than 2,000 years of sonic history, chronicling changes in culture, migration, religion, economics, and law that helped music flourish, as well as periodic efforts at curbing musical innovation. Boyle describes the comic, which reflects 10 years of research, as a story about access to the musical commons and attempts to restrict it.

“The process is as old as the quills,” he says. “You can’t tell the history of music without telling the history of musical borrowing. And you can’t tell the history of music without telling the history of attempts to regulate musical borrowing.”

Squeezing the musical commons

While many past attempts to regulate musical borrowing were effectively efforts to prevent changes in social, religious, or racial order, today they are largely legal matters. Copyright law gives owners — the author of an artistic work, his or her heirs, or a purchaser of those rights — the right to control, for a limited time, who can use their works and how, as well as the right to be paid. In theory, it’s a system designed to incentivize the creation of new works: Artists use royalties to support their ongoing creative efforts and get to preserve their artistic integrity by vetoing uses of their work they deem inappropriate. And at the end of the copyright term, creative works enter the public domain — the commons — and become available free for others to use at will.

“You can’t tell the history of music without telling the history of musical borrowing. And you can’t tell the history of music without telling the history of attempts to regulate musical borrowing.”
— James Boyle

In their scholarship, teaching, and advocacy through the Center for the Study of the Public Domain, Boyle and Jenkins have argued that the system in the United States isn’t working as intended. Partly, that is due to a series of statutory extensions of the copyright term that have effectively locked works published since 1923 — books, films, and music — out of the public domain, even those whose author is unknown. Boyle examined the implications of ever-expanding intellectual property rights for innovation across disciplines in his award-winning book, The Public Domain: Enclosing the Commons of the Mind (Yale University Press, 2008), devoting a chapter to a 100-year-long chain of musical borrowing beginning with spirituals and ending with rap that puts “I Got a Woman” in the center (a story that is graphically reprised in Theft!). By then, he and Jenkins had already made their first foray into comic book scholarship, 2006’s Bound by Law?, which examined issues of copyright, fair use, and the public domain in documentary film. Aiming for a broad audience, from professional filmmakers and academics to teenagers making movies on their laptops, they published it under a Creative Commons license and made it available to download for free from the center’s website. The comic, which was drawn and co-authored by the late intellectual property scholar Keith Aoki, confirmed the public appetite for broadly accessible and entertaining information on creativity in the digital age: It has been downloaded more than 1 million times.

In Bound by Law?, Boyle and Jenkins described a growing “permissions culture,” in which business norms, not law, demand that filmmakers pay license fees for using even tiny snippets of copyrighted content. Then, as now, they caution that these practices, left unchecked, put art and culture under threat by continually raising the costs for creators. And the squeeze of the musical commons is particularly tight due, in part, to a number of recent court rulings which Boyle and Jenkins find questionable or downright wrong. In one, the U.S. Court of Appeals for the Sixth Circuit found a sampling by N.W.A. of two seconds of another recording to be a copyright violation. And in 2015, a jury in the Ninth Circuit found Pharrell Williams and Robin Thicke liable for just borrowing the feel and rhythm of Marvin Gaye’s “Got to Give It Up” for their hit, “Blurred Lines.”

Co-authors and spouses James Boyle and Jennifer Jenkins ’97 at the March 29 launch party for Theft!Co-authors and spouses James Boyle  and Jennifer Jenkins ’97 at the March 29
launch party for Theft!

“Pharrell Williams said he was just trying to channel ‘that late ’70’s feeling,’ and how do you do that without evoking the funk or the groove or the style of disco and Motown and R&B music?” asks Jenkins. “And if you trace the evolution of music, certainly if copyright is seen to extend to those kinds of genre-building elements, then a lot of the music we love could be potentially illegal or subject to licensing and permission requirements.”

Boyle says music is now being regulated at the “atomic” level. “No one disputes that copyright should protect composers and artists. But today that ‘protection’ is interpreted to forbid even the most trivial borrowing. Our big question in the book is, would prior forms of music be possible under this? Would jazz be illegal? Would the blues be illegal? Would certain practices in classical music be illegal? And the answer, I think, is that if permission is always required, then, yes, they would be illegal unless permission was asked. And in many cases, asking permission would destroy the art form. You can’t have jazz if every time you solo you have to go and get a license.”

Boyle and Jenkins say they believe, firmly, that musicians deserve payment for their work. “There are definitely cases where permissions are required and fees should be paid,” says Boyle, noting that Kanye West was right to pay license fees for his liberal sampling of “I Got a Woman” in his 2005 release, “Gold Digger.” “We are not saying illicit downloading is okay or that you can wholesale appropriate from other songs. And we wish musicians were better paid. But we don’t think this permissions culture will achieve that. An artist might say, ‘I can’t make that song. It’s just not worth it to me.’ So we think if we continue down that path and actually regulate the process of creativity at the atomic level, we lose genres that we don’t miss because we never knew they were possible.

“Copyright’s goal is to promote cultural progress,” he says. “But more rights do not always produce more culture.”

In music, striking the right balance between incentives and constraints is particularly challenging, says Jenkins, who teaches a course on music copyright.

“Every musician is simultaneously a creator who benefits from copyright protection and a re-user who benefits from the freedoms that copyright affords them to build upon previous works. Every artist is on both sides of the divide, so getting the line in the right place benefits anyone who is making music. Allowing enough control for copyright to provide incentives is important, but there also has to be enough freedom to create in the first place. It’s not just binary.”

OIllustration of Dizzy Gillespie playing signature trumpet with quote "... you can't steal a gift."ne of Jenkins’ former students, Peter Berris ’17, says he has encountered the freedom and control divide firsthand as a songwriter. “Every listenable song is derivative of something, but the trick is to make sure it isn’t too derivative,” he says. “I have sometimes scrapped or reworked compositions partway through the songwriting process after realizing that they were too similar to an existing work. Thus, in a sense control makes it harder to write new songs, but it can also force innovation by requiring a songwriter to depart from what would otherwise be a similar preexisting work.” Weakening control also has downsides, he says: “Even if songwriting were made easier by diminishing control, it would also undermine the degree of protection that a songwriter’s own compositions would have and the income he could earn.”

Boyle adds that as an art form, music poses inherent regulatory challenges; whereas literature relies on a virtually infinite supply of words and possible word combinations, the possibilities in music are more constrained. “There are a limited number of notes, and only a subset of those are pleasing to the human ear, and only a subset of those fit within a recognizable genre,” he says. “Your rock song is more likely to sound like my rock song than your novel is likely to read like mine.

“So already, instead of this vision of creativity as this expanding fountain which goes off in every direction, we’ve got this sort of bottleneck, where music is likely to sound like other music, even if the person isn’t borrowing. And often the person is and should be influenced by the groove. That’s how you work within a genre.”

Boyle and Jenkins agree that today’s musicians face an essential irony: At a time when, thanks to technology, it’s easier than ever to make and disseminate music, law and business have adopted ever-tighter restrictions. “Our point,” says Jenkins, “is that this is not a discrete thing. Aesthetics, economics, technology, and changes in law are all linked.”

The trail of musical innovation

That’s been true throughout history, as they demonstrate by their comic avatars’ gleeful time-travel through Theft!, in period costumes via TARDIS, DeLorean, Nemo’s Nautilus, and other vehicles mined from pop culture. “Our book is about musical remix,” says Jenkins, “and it uses visual remix to make its points.” On an early stop, they explain that Plato wanted the state to ban the “mixing of the musical modes” — for reasons of order and morality. Moving along their time line, they find that the church of the Holy Roman Empire required that all religious music be monophonic and purely vocal, imposing strict stylistic rules on liturgical singing. One impulse for the religious rebirth of the lost technology of notation, in fact, was to “make sure people were literally all singing the same tune” at mass. “One pope, one church, one song,” Boyle and Jenkins write.

“Every musician is simultaneously a creator who benefits from copyright protection and a re-user who benefits from the freedoms that copyright affords them to build upon previous works. … [G]etting the line in the right place benefits anyone who is making music.”
— Jennifer Jenkins

But notation allowed musicians to innovate and to score polyphonic and instrumental compositions, an unintended effect of a musical “technology.” (“Only the first of many” Boyle notes.) And a few centuries later, in the era of courtly love, the church engaged in its own musical theft, reshaping troubadours’ songs of romantic love and lust as worshipful paeans to the Lord and the Virgin Mary.

The advent of printing and, in 1498, the invention, in Venice, of a specific method for printing musical scores led to an explosion of polyphonic and complex composition, because those compositions could now be shared with the world. But if musicians and composers were thriving, they were still being paid by patrons, while the inventor of the new printing technology received a property right over his method: a 20-year monopoly over all music printing in Venice. Subsequent legal innovations covered printing and re-printing — such as a composer’s right (rarely bestowed) to determine whether his work was printed and by whom — not performance. It actually wasn’t clear whether composers were even covered by the first copyright law, the Statute of Anne, passed in 1710, until 1777, when a court, ruling in favor of composer J.C. Bach, held that musical compositions were, indeed, “writings.” That cleared the way for composers to claim a share.

Mind the chapel master

Rampant borrowing among baroque and classical composers can still be heard in any symphony hall. “Not only was borrowing not illegal, but as an aesthetic matter it was accepted in classical music,” says Jenkins. She and Boyle make that point by charting borrowing across the work of six composers, illustrated as a game of “Chutes and Ladders,” moving from Handel to Beethoven to Brahms (whose First Symphony sounded so similar to Beethoven that it was nicknamed “Beethoven’s Tenth”) to Mahler, Berio, and Stravinsky. Another illustration charts a taxonomy of different kinds of accepted borrowing, for example, the use of an existing melody as the basis for a new composition, or the appropriation of another composer’s work by way of a quotation or for purposes of parody.

“ ‘Borrowing is permissible, but one must return the object borrowed with interest.’ In other words, borrowing is all right, as long as you improve upon the original and transform it or make something better with it.”
— Jennifer Jenkins, quoting Johann Mattheson’s 1739 work, The Perfect Chapelmaster

“The study of musical borrowing is familiar to anyone who studies classical music,” says Jenkins. “It was an accepted method of building upon prior works.” The standard, she says, is reflected in a quote from Johann Mattheson’s 1739 work, The Perfect Chapelmaster, which appears more than once in Theft!: “‘Borrowing is permissible, but one must return the object borrowed with interest.’ In other words, borrowing is all right, as long as you improve upon the original and transform it or make something better with it.” And that guidance still resonates with musicians, she says.

“Putting copyright aside, if you ask artists what they think should be ethically allowed or prohibited, the line they draw is using their song in a commercial or wholesale borrowing. But if you take a few measures of their song and do something interesting with it, something transformative, many composers and songwriters think that’s great.”

Still, creative norms evolved through the classical and romantic periods and art, Boyle and Jenkins write, came to be defined as original genius. Composers began to consider their works sacrosanct. The comic quotes the eminent musicologist J.P. Burkholder, who wrote that Handel was later accused of plagiarism “for practices that seem today like particularly excellent examples of what had been a long and distinguished tradition of creatively reshaping borrowed material.” And in matters of technology and law, the music marketplace changed rapidly: The concept of the original author became the organizing principle of copyright; lithography reduced the cost of printing music and facilitated its sale directly to the public; and, for the first time in the U.K., playwrights and operatic composers gained property rights relating to the performance of their works.

America’s borrowed songbook

Landing their Nautilus on the shores of Maryland in 1814, the comic’s protagonists observe Francis Scott Key watching the British attack on Fort McHenry. His poem about the bombardment languished until he set it to the tune of an old British drinking song and retitled it the “Star-Spangled Banner.” Boyle and Jenkins point out the origins of other patriotic standards: “My Country Tis of Thee” transformed the British national anthem; and “The Battle Hymn of the Republic” and the “Marine Hymn” reflect longer derivative chains.

“America, as we say in the comic, is remix nation,” says Boyle. It went beyond the direct appropriation of melody. In popular music, Stephen Foster’s compositions borrowed from multiple sources, including African musical traditions brought (involuntarily) by slaves. Ragtime blended European marches with African polyrhythms. The cross-cultural borrowing that imbues American music became its hallmark, Boyle says. “America takes the music that citizens from each culture and country brought to this country and blends it. That’s what makes George Gershwin’s ‘Rhapsody in Blue’ so fascinating — it has components of jazz, classical, and ragtime. That’s what takes the progression of blues and country and rockabilly and fuses it to make rock and roll. That’s how soul is gospel plus the blues.”

The Constitution gave Congress power to create patents and copyrights as a way to encourage American innovation. Music was not explicitly included until 1831, when copyright terms lasted for 28 years and could be renewed for another 14, and early copyright applied only to publication, not the performance of musical works. Boyle and Jenkins explain that Foster, “the father of American popular music” eked out a modest living as a songwriter based on royalties on the publication and sale of music to his songs, with the lion’s share of the profits going to those who printed his songs, often without his permission. And they point to the conflict brewing between the idea of using property rights to pay composers and the time-honored (and apparently unstoppable) tradition of musicians borrowing and recrafting earlier works to make new songs.

Illustration from Theft! with characters discussing Foster's example of being a professional songwriter, blending fragments of musical traditions in music to become "the father of american popular music"Such explosive technical innovations of the late 19th and early 20th centuries as the player piano, the phonograph, and the radio expanded music’s reach and led to profound developments in business and law, further changing the way musicians were paid. When player pianos and the gramophone created a market for recorded music, the 1909 Copyright Act struck a compromise between the interests of composers and the nascent recording industry, Boyle and Jenkins explain. Composers, for the first time, got paid for recordings of their songs. But a compulsory license allowed anyone to record a composition as long as they paid a standard fee.

Copyright terms also changed, continually, through the 20th century. A term that in 1909 was 28 years and renewable for another 28, is now the author’s life plus 70 years for new songs. Tracing the impact on the classic “Rhapsody in Blue” in the comic, Boyle and Jenkins observe that while many of George Gershwin’s songs written prior to 1923 have been in the public domain for years, his bestloved work, written in 1924, remains controlled by his heirs and will not enter the public domain until Jan. 1, 2020, thanks to statutory extensions of the copyright renewal term in 1976 and 1998.

In a country where “composers had treated their musical heritage as a commons, borrowing and remixing to make new styles and songs,” continual copyright extensions lock up the store of creative raw materials.

“Extending the term certainly benefitted a few people,” they write, “but the price the public paid was higher. We locked up most of 20th century culture to benefit a very small proportion of works that were still commercially viable after 28 or 56 years or even life plus 50.

“The past gave us works to use, but we don’t seem to be doing the same for the future.”

Again and again … race

“In the 20th century, in particular… African or African Americaninspired music was seen by some as threatening a color line. And many attempts to police the music were attempts to police that line.”
— James Boyle

In remix nation, as recording and radio expanded music’s reach, social anxiety soared. Listeners were getting exposed to — and enjoying! — new cultures in their own homes, and that was seen, by some, as a threat to societal segregation, even to bans on miscegenation.

“In the 20th century, in particular, again and again, African or African American-inspired music was seen by some as threatening a color line,” says Boyle. “And many attempts to police the music were attempts to police that line. The fear was that if people listened to each other’s music and idolized each other’s artists, musical styles will mix and the races will mix. And that fear was very consciously put forward.” Jazz was denounced (by the founder of the Julliard School, no less), as the self-expression of a primitive culture that could lead to the degeneration of “highly civilized” white culture. Segregationists even tried to ban rock and roll in Alabama.

Illustration from comic book, Theft!Black musicians were denied access or, eventually, only grudgingly admitted to such professional organizations as the American Society of Composers, Authors and Publishers, and repeatedly found themselves denied credit and market access in other ways.

“Part of it was a process of frankly racist resistance, a fear of other cultures,” says Boyle. “Part of it was a process of appropriation, where white musicians appropriated from black musicians and didn’t give them credit or payment. Black musicians often didn’t get their due.” In other cases, black artists actually hailed the work of white musicians whose music crossed the color line and gave attention to black artists in the process. Al Green said that Elvis Presley “broke the ice for all of us.” Boyle and Jenkins devote several pages to blues master Robert Johnson’s influence on rock and roll, and the way Chuck Berry transformed the genre by mixing blues and country. “Songs jump back and forth across a segregated color line. The story of remix is complicated,” says Boyle, “but in the end it gives us a more vibrant, and tolerant, culture.”

For the love of music

Boyle and Jenkins end their story where they began, at a time when controlling access to the commons is no longer motivated by race, morals, religion, or philosophy, and is now primarily a legal matter. But having built a case that musical influence and borrowing are essential to creativity, where do they see hope in today’s permissions culture?

“I think we have a lot of the tools in existing law,” Boyle says, “if we actually applied them, if judges applied them, and if juries understood them. The law allows the use of stock elements of a genre. We have a rule that says ‘de minimis non curat lex,’ — the law does not concern itself with trifles, and a certain amount of copying is so trivial that we don’t even count it as copying. We have fair use, which says you can take a copyrighted work without permission and use it, so long as you are transforming it, so long as you’re making something new, so long as you aren’t using it as a substitute for the original.”

But apart from parody, musicians rarely assert fair use, Jenkins points out. “In music-to-music borrowing, there are no non-parody cases finding fair use, which is remarkable,” she says. “There are all sorts of re-uses of music that would seem to qualify as fair use.” When industry practice is to license material even when a good, fair-use argument exists, musicians seem reluctant to make the claim, she says.

“With fair use you are saying, ‘I copied, but it’s okay because it was in service of a worthy purpose, it was transformative, and I didn’t use too much or interfere with the market.’ But in order to make that claim, you have to admit copying. It can be risky.” And new genres, like rap, where sampling can be transformative, lack a body of case law to support fair use claims, she says.

“[w]e’re passionate about the message in the book, which is about breaking down walls. music doesn’t like walls. music helps us recognize our common humanity.”
— James Boyle

As scholars of and advocates for awareness and protection of the public domain, Boyle and Jenkins say they are committed to both making law and policy accessible to creators and consumers, and to promoting balanced intellectual property law and policy. They want to engage musicians in addressing the optimal balance of rights and freedoms that feeds creativity and protects the economic interests of artists. They hope that a wide range of artists, teachers, and scholars will take them up on their invitation to download the comic for free. “We certainly think a lot of musicians might be fascinated by this history,” says Boyle. “We think students of music and music history might find it useful. We’ve benefitted a lot from the work of music historians and we hope that we, in turn, offer them something.”

They have, says Anthony Kelley, an associate professor of the practice of music at Duke University, on whom the musicologist character in the comic is modeled. He calls Theft! “a treasure trove of obser-vation and facts regarding the intertwined condition of music and law,” adding that while many songwriters and composers may know that borrowing is a longstanding tradition in music, they are unlikely to know the breadth and depth of its history.

“New composers, new songwriters, new DJs, new music critics, new improvisational musicians, students of vernacular music, arts/music scholars/musicologists, ethnomusicologists, and generally new arts enthusiasts should read the book,” he says.

Boyle says he and Jenkins kept those ordinary music lovers in mind as they worked on the comic. “The more we got into our research, we realized it’s also for fans, people who grew up loving a particular band, a particular style, a particular movement, fans of blues, soul, Robert Johnson, rap. We thought these people would care pretty passionately about this story.”

It was their own love of music that propelled their work on Theft! for 10 years, Boyle says.

“We’re experts in law, so obviously that was our entry point. And there are a lot of challenges to music’s future, including, unfortunately, legal ones. But we’re passionate about music and want musical creativity to succeed. And we’re passionate about the message in the book, which is about breaking down walls. Music doesn’t like walls. Music helps us recognize our common humanity.”

Frances Presma

 

Illustrations reprinted with permission from Theft! A History of Music by James Boyle, Jennifer Jenkins, and Keith Aoki

Order Theft! in paperback or download at law.duke.edu/musiccomic/

Download or Order Theft!

 

Remembering Keith Aoki

A panel from Theft! pays tribute to collaborator Keith Aoki, imagining him strolling on the surface of the moon with the late David Bowie.

A panel from Theft! pays tribute to collaborator Keith Aoki, imagining him strolling on the surface of the moon with the late David Bowie.

Professors James Boyle and Jennifer Jenkins dedicate Theft! to Keith Aoki, who is credited as a co-author. A noted scholar of intellectual property, civil rights, critical race theory, and local government law, Aoki was a professor of law at the University of California, Davis at the time of his death on April 26, 2011. Also a talented artist and cartoonist, he served as both co-author, with Boyle and Jenkins, and artist on their first comic, Bound by Law?, and had been working with them on Theft! until shortly before he died.

Two pages in Theft! reprint a 2011 graphic commentary the trio wrote and Aoki illustrated on the need to balance freedom and control in the digital world. It originally appeared in the San Francisco Chronicle.

“In the last conversation we had with him, he said, ‘You have to finish the book,’” Boyle recalls. “We were only halfway done. We had to start again with new artists and draw every page from scratch.” That entailed finding a team of artists who could realize their vision. Ian Akin and Brian Garvey, who have illustrated comics for Marvel, DC, and Disney, among others, drew and inked panels mapped out in minute detail by Boyle and Jenkins, while

Balfour Smith, program coordinator for the Center for the Study of the Public Domain, handled lettering, coloring, and the digital publishing of Theft!

“We think the final product is a fitting tribute to Keith,” Boyle says.