September 1, 2006
Steal This Music: How Intellectual Property Law Affects Musical Creativity. By Joanna Demers. Athens, GA: University of Georgia Press, 2006. 178pp (softcover). ISBN 0-8203-2777-8. $19.95.
Reviewed by Tim Brooks
Joining the growing popular bookshelf on copyright is this slender volume that focuses largely on the effect of copyright on “transformative appropriation,” “the act of referring to or quoting old works in order to create a new work” (p.4). Building on what has gone before has always been a bedrock element of cultural creativity. Walt Disney didn’t dream up the character Snow White on his own, The Beatles owed Elvis and Elvis owed a thousand black musicians (and they freely admitted it), and much of the blues shares common riffs, chords and even lyrics. The idea of the “lone genius” artist creating something totally new out of thin air is nonsense, as Demers points out. Yet that is the core conceit of copyright.
The author maintains that the rapidly expanding reach of copyright law, and new restrictions on fair use, both stifle and in some cases—surprisingly—stimulate musical creativity.
Steal This Music is divided into four efficient chapters. Chapter one, “Music as Intellectual Property,” lays out the basic contours of the law and its historical development. Before you can have any discussion of the effects of copyright you have to have some understanding of what it is, how it developed, and why. Chapter two, “Arrangements and Musical Allusion,” gets to the real contributions of the book. There are discussions of what the “Elvis Police” (Elvis Presley Enterprises) will allow and what they won’t (oh, that’s why those Elvis-on-black-velvet paintings have disappeared!); different types of musical transformation (Walter Murphy’s jokey “A Fifth of Beethoven” vs. Walter Carlos’ creative “Switched-On Bach”); white covers of black records in the 1950s; specific parody (OK) vs. general satire (not); why Weird Al Yankovic has to apply for licenses to record his raucous take-offs on popular songs, like “Eat It,” “Like a Surgeon” and “Smells Like Nirvana”; and various lawsuits over soundalike acts brought by artists including Nancy Sinatra, Bette Midler and Tom Waits. IP law has gotten progressively stronger in banning soundalikes too. These lawsuits often seem to be brought for reasons of pure ego and censorship rather than commercial gain. Modern copyright law encourages censorship.
In Chapter three, “Duplication,” Demers talks about more literal duplication of songs and recordings. The Dickie Goodman “Flying Saucer” records of the 1950s, rap sampling lawsuits, and the use of ethnic field recordings in commercial settings are discussed. It is interesting how much of the law in this field is being written by judges from the bench, rather than in legislatures. One particularly self-righteous judge nearly demolished the entire field of sampling with his over-the-top ruling in the Gilbert O’Sullivan vs. Biz Markie “Alone Again, Naturally” case (1990). Markie had used three words, and some chords from the 1972 O’Sullivan recording, and had even contacted O’Sullivan about it beforehand (O’Sullivan never responded). Invoking the Bible’s Seventh Commandment (Thou Shalt Not Steal), the judge condemned Markie and raged that he should be prosecuted under criminal statutes and sent to prison for such transgressions. Since the ruling was not appealed, it is now considered “legal precedent.”
In the final chapter Demers expands on the definitional issues raised in prior chapters and connects them to various cases, which suggest what artists can and cannot do. She is very pragmatic. Little known artists with limited distribution “infringe” all the time with no consequences; pre-cleared samples are available; so are libraries of works from those who don’t believe in heavy-handed restrictions, such as Creative Commons. The Girl Scouts continue to sing copyrighted songs around their campfires, and your kids can sing “Happy Birthday” at a party without any real fear of a lawsuit (even though one is theoretically possible). Her premise, though she doesn’t put it quite this way, seems to be that widespread “passive resistance” may eventually undermine some of the excesses of copyright restrictions. That sounds great unless you are one of the 15,500 people sued so far by the RIAA over alleged downloading (maximum fine: $150,000 per occurrence).
Steal This Music (an odd title) is an interesting book with a somewhat different take on the current copyright situation, but its attempt to be “even handed” and occasionally look on the sunny side may be somewhat unrealistic in an age when entertainment companies seem hell-bent on more and greater restrictions, bigger fines and ever more ruthless enforcement—and appear to be getting away with it thanks to cooperative courts and bribed (er, those are “political donations”) legislators. Demers seems to accept all the old shibboleths that say powerful forces will never allow softening of the current law. But courts and legislatures are not immune to angry voters, and a more productive tact might be to crystallize the argument for copyright reform in language the ordinary person can understand and take that argument to the people who really can bring about change in a democracy: the voters.