I started reading James Boyle’s The Public Domain: Enclosing the Commons of the Mind for Yochai Benkler’s Telecom/Internet Policy course, and I’ve ended up finishing almost the whole book. The book is available to read for free through his website.
Boyles chapter “I got a mashup” looks at the role borrowing plays in musical creation to argue that copyright should be refashioned to allow for creativity and to reflect what musicians actually do. This is a similar position to the one Larry Lessig takes in Brett Gaylor’s film RIP: A Remix Manifesto — The creativity of musicians who sample, borrow, or make mash-ups (like Girl Talk, who is a central part of the film) should be encouraged rather than threatened by our copyright laws.
I agree with that (although it’s much less clear in practice). But it occurred to me while reading this — what effect does copyright law have on how music develops? How does law actually direct innovation by determining what sounds can be recycled and what music can be profitably made?
Boyle traces musical influence through one line of songs. Kanye West’s “Gold Digger” samples Jamie Foxx’s rendition of Ray Charles’ “I Got a Woman“, which was in turn a clear rewording of a 50-year old gospel song called “I got a Savior” and is deeply influenced by Nat King Cole. Boyle’s account emphasizes how pervasive borrowing and copying are and always have been, but also how copyright has altered this practice (and our intuitive response to what counts as ‘original’).
Ray Charles updated the genre (gospel –> soul) and secularized the song (“passion for woman substituted for passion for God”), but the kind of borrowing Ray Charles did was near verbatim at parts. This song was instrumental in growing a new genre of music (soul), and it would be hard to deny that the song was innovative and culturally significant. But as Boyle describes, it would probably have been illegal if made today under the same circumstances.
The point isn’t that Ray Charles is any less brilliant for having influences, but that the way musicians borrow and appropriate has fundamentally changed since even 50 years ago. Innovation like that might not be permissible under current law. Jazz and blues covers, variations, and the experimentation that defined creativity for generations of musicians would now be of questionable legal status and pose all kinds of licensing issues. This doesn’t mean music is not developing, just that the dimensions on which it develops have changed.
Kanye inverts the meaning and reworks the song to his own ends too. But instead of attempting any variation, the sample is looped verbatim and incorporated into a song alongside other original content — this is a very different kind of borrowing than was commonplace at the time Ray Charles was writing music. It’s also interesting that there is no attempt to conceal the borrowing, even when the song so immediately depends on another for its popularity. Kanye paid licensing fees to Ray Charles’ estate for the portion he used.
I read a book on musicology a few years ago that described differences in genres as coming down to a few basic dimensions in the musical structure and instrumentation. Reggae is regular bass beats with guitar chords on the offbeat, classical music involves technical melodic structure and generally lacks percussion, that kind of thing. Pandora’s algorithm is based on this premise.
If music really only varies across a finite number of dimensions, I’m curious to know which dimensions, what kind of variations are more likely to be viewed as fair, innovative uses under copyright law, and which ones are not. Copyright has doubtlessly already impacted what kinds of music gets made, which genres grow, and what serious professional musicians spend their time doing. But without any point of comparison, that impact is almost imperceptible.