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Brand Name Bullies
By David Bollier John Wiley & Sons
ISBN: 0-471-67927-5
Chapter One
The Crusade to Lock Up Music
[It] is entirely plausible that two Connecticut teenagers obsessed with rhythm and blues music could remember an Isley Brothers' song that was played on the radio and television for a few weeks, and subconsciously copy it twenty years later. -A federal court in Three Boys Music Corp. v. Bolton, upholding the subconscious copying doctrine
For millennia, the circulation of music in human societies has been as free as the circulation of air and water; it just comes naturally. Indeed, one of the ways that a society constitutes itself as a society is by freely sharing its words, music, and art. Only in the past century or so has music been placed in a tight envelope of property rights and strictly monitored for unauthorized flows. In the past decade, the proliferation of personal computers, Internet access, and digital technologies has fueled two conflicting forces: the democratization of creativity and the demand for stronger copyright protections.
While the public continues to have nominal fair use rights to copyrighted music, in practice the legal and technological controls over music have grown tighter. At the same time, creators at the fringes of mass culture, especially some hip-hop and remix artists, remain contemptuous of such controls and routinely appropriate whatever sounds they want to create interesting music.
Copyrightprotection is a critically important tool for artists in earning a livelihood from their creativity. But as many singers, composers, and musicians have discovered, the benefits of copyright law in the contemporary marketplace tend to accrue to the recording industry, not to the struggling garage band. As alternative distribution and marketing outlets have arisen, the recording industry has sought to ban, delay, or control as many of them as possible. After all, technological innovations that provide faster, cheaper distribution of music are likely to disrupt the industry's fixed investments and entrenched ways of doing business. New technologies allow newcomers to enter the market and compete, sometimes on superior terms. New technologies enable new types of audiences to emerge that may or may not be compatible with existing marketing strategies.
No wonder the recording industry has scrambled to develop new technological locks and broader copyright protections; they strengthen its control of music distribution. If metering devices could turn barroom sing-alongs into a market, the music industry would likely declare this form of unauthorized musical performance to be copyright infringement. Sound improbable? Chapter 1 looks at some disturbingly hilarious attempts to privatize and lock down music, a cultural form that seems to flourish most when it can circulate freely.
ASCAP Stops the Girl Scouts from Singing around the Campfire
You may think that it's okay for little campers to sing "Happy Birthday" and "Row, Row, Row" around the campfire for free, without asking for permission. But in fact, you may have to pay a license to a licensing society known as ASCAP. ASCAP, the American Society of Composers, Authors and Publishers, is a performance-rights body that licenses copyrighted works for nondramatic public performances. It then distributes royalties collected from those performances and channels them to the appropriate composers, authors, and publishers. The system is intended as a way to assure that creators receive monies for the public performances of their works ... even some campfire songs.
But what exactly is a "public performance," and should summer camps be charged for license fees for widely sung tunes like "Puff the Magic Dragon," "Edelweiss," and "This Land Is Your Land"? In 1996, ASCAP decided that since hotels, restaurants, funeral homes, and resorts pay for the right to "perform" recorded music, and since many summer camps resemble resorts, why shouldn't they pay too? Under copyright law, a public performance occurs "where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered." Like a summer camp.
After reportedly opening its negotiations with the American Camping Association with an offer of $1,200 per season per camp, ASCAP eventually settled on an average annual fee of $257. Most of these camps were "big commercial camps," an ASCAP spokesperson told a reporter-places equipped with dining and recreational facilities that used music for dances and other social functions. For camps that did not belong to the association, the fees ranged from $308 to $1,439 a year.
When ASCAP sent letters to the 288 camps enrolled with the American Camping Association, demanding payment for the "public performances" of copyrighted songs, it failed to check the affiliations of each camp. Unbeknownst to ASCAP, 16 of the 288 camps were run by the Boy Scouts of America or the Girl Scouts.
When Sharon Kosch, the director of the San Francisco Bay Girl Scout Council's program services, received an ASCAP letter demanding $591, her first thought was, "You guys have got to be kidding. They can't sing the songs?" She reconsidered when she found out the potential punishment. "It's pretty threatening. We were told the penalty can be $5,000 and six days in jail."
So the council took a black marker to its "Favorite Songs at Diablo Day Camp" list, trying to determine which songs were copyrighted and which belonged in the public domain. But the council didn't have the means to check its song list against ASCAP's 70,000-page list of 4 million songs. And even if it did, another composer licensing body-SESAC, Inc., which owns the copyright to Bob Dylan's "Blowin' in the Wind"-had announced it would ask camps for its own set of royalties.
The council couldn't shoulder the bureaucratic hassles. It was low on cash and couldn't afford $10,000 in licensing fees for its twenty chapters. And it could not afford to be sued. So the camp simply stopped singing.
The girls of Diablo Day Camp were reduced to doing "The Macarena" (which was all the rage that summer) in silence, without the music. Non-ASCAP or noncopyrighted songs like "Bow-Legged Chicken" and "Herman the Worm" had to be sung instead of "This Land Is Your Land."
A fourteen-year-old camper tried to tell the younger Brownies what had happened: "They think copyright means the 'mean people,'" said Debby Cwalina. "The people who wrote it have a thing on it. A little c with circles around it. There's an alarm on it. And if you sing it, BOOM!"
As if to play into this stereotype of copyright law, ASCAP's chief operating officer, John Lo Frumento, told a reporter: "They [camps] buy paper, twine and glue for their crafts-they can pay for the music, too." And if the little girls sang anyway, he said, ASCAP would "sue them if necessary."
Not surprisingly, ASCAP's arrogance did not play well in the press. "Tightwad bean counters in the music industry descended to a new low this summer," wrote an editorialist for the San Francisco Chronicle. "Let ASCAP bullies try to collect their phony royalties. We dare them."
The press had a field day. The basketball player Shaquille O'Neal offered to pay a camp's royalties for ten years. BMI, ASCAP's rival in licensing music, offered to license its three million songs to the Girl Scouts for nothing.
James V. DeLong, writing in the National Law Journal, astutely noted that composers do not create their music from scratch; they necessarily "steal" from the cultural commons: "Song writers draw heavily on the efforts of other people, such as those who invented the musical notation used to put songs into marketable form, a rich tradition of folk music written without benefit of copyright, and old works no longer covered. The composers are tapping into a sort of cultural commons without which their efforts would be bootless, and they have no right to appropriate it."
It was also pointed out that Boy Scouts, Girl Scouts, and other youth camps probably do more than any other force to keep old songs in circulation, introducing them to a new generation year by year. Whatever economic value the songs may have, certainly some significant amount stems from this informal sharing of the works via the commons. But copyright champions systematically ignore the "value added" wealth that derives from the unmetered sharing of creative works.
A week after the public furor started, a chastened ASCAP said that the entire affair was a "gross misunderstanding" and that it would not be seeking royalties from the Girl Scouts after all. Said a spokesperson: "I guess we could have researched the list [of camps] better than we did, but quite honestly there isn't a lot of money here."
For all of its PR backpedaling, ASCAP did not concede any legal ground. The free singing of songs by the Girl Scouts remains an ASCAP-granted indulgence, not a legal entitlement. But as this episode showed, the public has its own considerable voice in how copyright law will be enforced-if it can express itself. Or as Bob Dylan put it, in a song that he claims belongs to him alone, "The answer, my friend, is blowing in the wind. The answer is blowing in the wind."
The Blurry Line between Originality and Copying
One of the most persistent difficulties in applying copyright law to music is determining what is original-and therefore deserving of copyright protection-and what is deemed illicit "copying." Copyright law presumes that the originality of a new work-and thus its "authorship"-can be identified and legally defined as property. But in actual practice, no one creates a new song out of thin air. Virtually every new creation draws in varying degrees upon musical tradition and the larger culture, sometimes in highly specific ways. All creators depend upon a cultural commons for inspiration, imitation, and derivation.
The history of music is a story of originality combining with creative derivation. Sometimes a new work seems familiar because it belongs to a specific musical tradition; sometimes it copies key melodies, notes, refrains, or lyrics. For example, "Good Night Sweetheart" (1931) is based on themes from Schubert's Symphony in C and Liszt's preludes. "Love Me Tender," made famous by Elvis Presley in 1956, is based on "Aura Lee" by George Poulton. "The Lion Sleeps Tonight," also known as "Wimoweh"-recorded by the Weavers in 1952 and the Tokens in 1961-is based on a traditional African song.
In "copying" their predecessors, musicians are not necessarily ripping off someone else's work. Often, a prior work is quoted to pay homage, evoke another cultural period, or make fun of it. Mozart, Wagner, Bartok, and Debussy all wrote music that mocked contemporaries whom they disliked. Bartok imitated Dmitry Shostakovich's Symphony no. 7 with a parody that he described as "trumpets give a Bronx cheer; high strings and woodwinds shriek derision ... woodwinds trail off in giggles; trombones fart, glissando. The whole wind band combines trills with an umpah bass to introduce ... violins in varied repetition of the Shostakovich tune." Taking this impulse a step further, Peter Schickele, better known as P.D.Q. Bach, has built a career as a musical parodist using Johann Sebastian Bach's oeuvre.
But imitation is not just a matter of making fun. On the record sleeve of an orchestral recording of his Sinfonia, Luciano Berio explained that the third section was composed as an homage to Mahler: "It was my intention here neither to destroy Mahler (who is indestructible) nor to play out a private complex about 'post-Romantic music' (I have none) nor yet to spin some enormous musical anecdote (familiar among young pianists). Quotations and references were chosen not only for their real but also for their potential relation to Mahler."
In drawing upon the blues, rock music carries on the same tradition of reinventing and interpreting the art that has come before. Sometimes the imitations are strikingly similar. Led Zeppelin's "Whole Lotta Love" is remarkably close to "You Need Love" by the blues composer Willie Dixon, and the band's "The Lemon Song" is clearly related to Howlin' Wolf 's "Killing Floor." (Dixon actually sued Led Zeppelin and later settled.) Scholars such as Siva Vaidhyanathan have identified many clear lines of musical influence, if not outright imitation, that connect Muddy Waters to Eric Clapton, Chuck Berry to the Beach Boys, and Big Mama Thornton to Elvis Presley. While there is little question that all of these artists were distinctive innovators, it is not always possible to identify precisely who, if anyone, is solely responsible for a given innovation and whether it should be protected through an exclusive property right. Vaidhyanathan illustrates the profound limitations of copyright law by recalling an Alan Lomax interview with the blues artist Muddy Waters. Asked about the origins of his song, "Country Blues," Waters admits in the course of a rambling conversation to at least five identifiable sources: Waters himself "made it" on a certain occasion; the song was received knowledge that "come to me just like that"; the song may have derived from a similar song by Robert Johnson; Waters's mentor Son House taught the song to him; and the song "comes from the cotton field."
What may seem like a confusing set of contradictory statements is, in the blues tradition, a unified field. Tradition, inspiration, and improvisation are all wrapped up together, making it impossible to tease out with absolute certainty what is "original" in a given piece of music, let alone assign clear property rights to it. As Vaidhyanathan points out, "Blues originality is just very different from the standard European model. Originality in the blues is performance-based. Pen and paper never enter the equation unless the song is considered for recording and distribution.... The blues tradition values 'originality' without a confining sense of 'ownership.' In the blues tradition, what is original is the 'value-added' aspect of a work, usually delivered through performance."
If it is easier to discern the creative borrowings that occur in rhythm and blues or folk music than in, say, pop music, that is because these types of music have historically invited imitation and derivation as part of their tradition. By contrast, pop music, as an artifact of the mass marketplace (Tin Pan Alley, vaudeville, the Broadway musical), has grown up with a tradition of strict copyright protection. Outright, explicit imitation is therefore more rare, if not illegal, in pop music, than in the "open" traditions like folk.
Interestingly, one artist who straddles these two musical worlds, and who therefore embodies their contradictions, is Bob Dylan. Dylan is one of the most original contemporary composers yet one of the most inveterate "borrowers" of other people's work. But does Dylan "steal"?
The issue came to the fore in 2003 when a Dylan fan discovered that some lyrics on Dylan's 2001 album Love and Theft were almost verbatim lines from a 1991 novel, Confessions of a Yakuza, by Japanese novelist Dr. Junichi Saga. (Dylan would neither confirm nor deny to the New York Times having read the book.) While copyright attorneys might be shocked at such "plagiarism," folk music fans (and Bob Dylan fans in particular) know that the essence of such music is appropriation and collage. "Allusions and memories, fragments of dialogue and nuggets of tradition have always been part of Mr. Dylan's songs, all stitched together like crazy quilts," wrote the New York Times music critic Jon Pareles about the incident. "His lyrics are like magpies' nests, full of shiny fragments from parts unknown."
It was pointed out that the melody of Dylan's first big hit, "Blowin' in the Wind," was based on an antislavery spiritual, "No More Auction Block." Woody Guthrie's tunes drew heavily on songs recorded by the Carter Family. The difference between Dylan and Guthrie is that Dylan is quite proprietary about his songs, to the extent of testifying before Congress on behalf of a twenty-year copyright term extension. Guthrie, as we saw earlier, was only too proud to have his works become so integrated into the culture that his authorship is forgotten.
(Continues...)
Excerpted from Brand Name Bullies by David Bollier Excerpted by permission.
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