Copyright. Right to copy?


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“Originality doesn’t mean creation from nothingness… can also mean reusing something in a very creative and innovative way… if we took the standards of how people create that are implicit in a lot of copyright law cases, that basically say ‘you can’t copy’, most of what we consider to be great classical works couldn’t have been created…”

In this episode, Adriene Lilly talks to Olufunmilayo Arewa, Professor of Law at University of California Urwin about her work on musical borrowing and copyright law in the United States.

Olufunmilayo, who goes by Funmi, is a law professor at University of California Irvine. Her work on music and law includes: From J.C. Bach to Hip Hop: Musical Borrowing and Cultural Context about the diverse range of borrowing and inspiration in music across history and genre; Copyright on Catfish Row: Musical Borrowing, Porgy & Bess and Unfair Use focusing on the influences on George Gershwin’s work, and his estate’s tight hold on it’s copyright. She is currently writing a book about the influences of African American music and the business and legal implications of it’s global reach. You can find links to some of her other work, and a little more information here.

What does it mean for something to be creative? Original? How much transformation must occur before we allow an artists to claim ownership of an idea? Appropriation, inspiration and creative borrowing is common across disciplines and traditions. Existing in everything from science to painting, from cooking to film. Today, we’re focusing on appropriation in music.

“…There is a conception that some types of music are more original than others, and we often make those determinations in a very de-contextualized way. Originality doesn’t mean creation from nothingness, it could mean that (not often the case in music), but it can also mean reusing something in a very creative and innovative way. So I think, originality should not be the opposite of copying. Originality might involve copying and it might not, that depends on genre, composer, […etc]” (from the podcast)

We talk about the history of the idea of originality and creativity in music; The evolution of music copyright; The differences between music and literature; The many meanings of ‘musical borrowing’; The role of estates in copyright enforcement; And some of the current trends in copyright cases brought against musicians. We briefly discuss the recent Blurred Lines case (information about the case here, and music here), and the work of George Gershwin (Porgy and Bess, Summertimeand the spiritual Sometimes I feel Like a Motherless Child).

Funmi’s work considers the historic and conceptual issues that we find embedded in various rulings regarding musical borrowing. In ‘From J.C. Back to Hip Hop’ she tackles the actual creative practices of classical composers versus the myth of how we often believe they composed.

“… if we took the standards of how people create that are implicit in a lot of copyright law cases, that basically say ‘you can’t copy’, most of what we consider to be great classical works couldn’t have been created…” (from the podcast)

Her works highlights the huge variety of creative practices that exist, and have existed, throughout music history. Beethoven, for example, was known to be a skilled improvisational player and Debussey a commentator on Wagner. Yet, today we see many of these musicians as artists who crafted work in isolation, as if unaffected by their own social context and histories. Her work makes the argument that by recognizing some of these similarities between actual classical practice and contemporary practice, we can begin to embrace the multiple ways that creativity can occur.

“…hip hop artists are not the first artists to encounter this reaction to what some might perceive as too much borrowing…” (from the podcast)

In Copyright on Catfish Row she discusses the work of George Gershwin and through this example, examines how estates come to control creative works and (in some cases) end up hindering the ability of future creators to build on past works. She examines the complexities of appropriation, from the influences on Gershwin himself to the work that he would later influence.

“…there are a lot of varieties of creativity in music, and there are a lot of ways that people create. I think sometimes in law, we take one modality of creation and take that as a norm in creation… so, in a lot of legal cases you’ll see, they’ll basically say ‘you can’t copy’. If you then go to the musicology literature and see how people in musicology think about borrowing, there are like 20 different words people use. They talk about influence, about borrowing… when we talk about music and law we have a much more simple understanding a much more either/or understanding…” (from the podcast)

If you’re looking for more legal cases and information surrounding borrowing in music, here are links to a number of cases (and the music referenced) discussed throughout Funmi’s writing:

Cases and music Referenced in the show:

A short history of copyright law and music, including details regarding the J.C. Bach case (Bach v. Longman) that established copyright law is applicable to sheet music.

Richard Wagner’s Tristan and Isolde (prelude) (1859)and Claude Debussy’s Golliwog’s Cakewalk (1908)

Chuck Berry’s song “You Can’t Catch Me” and The Beatles “Come Together

Grand Upright v. Warner Brothers Records in 1991 was the first court case involving sampling in hip-hop. The case was about the sample of Gilbert O’ Sullivan’s song ‘Along Again Naturally‘ and Biz Markie’s ‘Alone Again‘. In this case, Biz Markie had requested permission to sample and lat er been denied using the song. (here is a short clip of Gilbert O’Sullivan commenting on the case and here is wikipedia). Notably, the court referenced the biblical commandment ‘Thou Shalt Not Steal”, equating the sample to theft.

George Gershwin’s Summertime (as performed by Helen Jepsen) and the spiritual ‘Sometimes I Feel Like a Motherless Child‘ (performed by Bessie Griffin). Notably, Summertime is one of the most recorded songs in history and there are over thirty-three thousand covers of the song. It is, however, also notable that the Gershwin estate exercises considerable control over how much the song can be changed. In one instance, the group Sublime recorded the 1997 version ‘Doin’ Time‘ which replaced the line “Summertime, when the livin’ is easy” with “doin’ time and the livin is easy.” However, before the song could be released they were forced to return the line to it’s original (Wikipedia).

Blurred Lines case (2015): This case (as discussed) involves the 2013 song Blurred Lines and the 1971 song ‘Got To Give it Up. Here is Rolling Stone magazine discussing the case, here is a look at the actual recordings that were used in the courtroom, and here is additional information.

More Cases and Information:

Santrayall v. Burrell was a 1998 case concerning M.C. Hammer’s ‘Here Comes The Hammer‘ which sampled ‘Oh-Uh’ by The Legend who had sampled from George Michael’s ‘Everything She Wants.’

Bridgeport Music, Inc v. Dimension Films was a 2004 case that exemplifies the unclear standards of what constitutes infringement and shows that even the smallest sample can constitute copyright infringement. The case involved a two second sample of the George Clinton song ‘Get Off Your Ass and Jam‘ as used in the N.W.A. song ‘100 Miles and Running‘. The court, in this case, likened sampling to a kind of physical taking “When those sounds are sampled they are taken directly from that fixed medium. It is a physical taking rather than an intellectual one” Here is George Clinton talking about sampling of his music.

If you would like to look even further into musical borrowing and sampling in music, consider reading some of Funmis work on the subject (found here). There are additional resources online that track sampling and influence, such For a short history of sampling in music today watch Mark Ronson’s recent Ted Talk on the subject and for a history of originality consider this 2003 episode of In Our Time.

Original artwork by Tiana Tucker

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