Who Owns The Music?

April 13, 2008 2:32 PM

Putting together a course on the history of music as property; I have a lot of the course figured out, but am looking for really well documented and interesting case studies or chronicles of disputes over the ownership of music.

Obviously the recent history of internet file sharing and "illegal" downloading will comprise a major topic (along with issues surrounding Indigenous cultural and intellectual property, about which I know a lot more). So I'm especially interested in smart journalism and scholarship on new musical economies, public archives of piracy and copyright cases, and IP activist movements (like Creative Commons) in the online world. Open to other suggestions for topics and cases as well, and not limited to the 'net context necessarily. Useful academic literature readable by smart undergraduates would also be helpful.

posted by fourcheesemac to education (29 comments total)

Law review articles are often pretty accessible to non-lawyers.
posted by lockestockbarrel at 2:43 PM on April 13, 2008

Not sure if there's specific music cases in it, but you might find James Boyle's Shamans, Software and Spleens (warning: dense reading) interesting as an academic view on information ownership. Also, Siva Vadyanathan's Copyrights and Copywrongs contains a chapter specifically dealing with prominent legal cases involving music.
posted by media_itoku at 2:47 PM on April 13, 2008

Probably goes without saying, but Lawrence Lessig's Free Culture (or at least excerpts from it) should definitely be part of the reading list.
posted by ewiar at 3:03 PM on April 13, 2008

Well, if you plan to teach a unit on fair use (and a lot of the music cases that aren't about file sharing are about fair use -- parody, sampling, etc.) then you probably want to start with Judge Leval's seminal Harvard Law Review article in which he essentially created the idea of transformative use which now drives most fair use analysis. It's available here.
posted by The Bellman at 3:10 PM on April 13, 2008

I don't know how historical you want to go for but you may be interested in Noise, by Jacques Attali, as well as Benjamin's The Work of Art in the Age of Mechanical Reproduction.
posted by ddaavviidd at 4:07 PM on April 13, 2008

You're basically teaching "copyright" with a kitschy theme. Go pick up a Copyright law textbook.
posted by toomuchpete at 4:09 PM on April 13, 2008

I don't think this is just "copyright" with a kitschy theme at all. I think the question of what makes different musical pieces "different" is actually profound (related to the larger question: what is music?). Anyway, a case that immediately comes to my mind is the dispute over the song "My Sweet Lord."
posted by thomas144 at 4:14 PM on April 13, 2008

I used Jonathan Lethem's article from Harper's "The ecstasy of influence: a plagiarism" with undergraduates as an overview, and they got a lot out of it.

It was also useful to look at Lethem's creative experiment with IP surrounding his latest book You Don't Love Me Yet. The book is about a band that becomes successful using someone else's lyrics. When the lyricist finds out that they've done this, instead of suing, he insists on joining the band. The most interesting part about it, however, is that he is offering unique licensing terms to filmmakers that want to adapt the book into a movie, and, if I remember right, songwriters that want to use the lyrics in the book.
posted by umbú at 4:14 PM on April 13, 2008

Maybe you could read and discuss the case of Arnstein v. Porter. Decided in 1946, it's still read in law schools today for its civil procedure holding - discussing whether a case must be allowed to go to trial, despite the fact that the plaintiff is pretty clearly a nutball and has no chance of winning.

Still, it might be useful for your purposes because it raises, by implication at least, the specter of two composers hitting on the same, or roughly the same, melody, and one of them being showered in riches & renown while the other languishes in obscurity. This seems to me like one of the most interesting debates in music & ownership, but maybe you're more interested in the debate between two co-composers over which one of them is "the" composer. In that case, look into the history of Rent, which I hear was subject to quite a bitter lawsuit over ownership rights (don't have a citation for that one off hand).
posted by rkent at 4:24 PM on April 13, 2008

I'd suggest looking into John Fogerty (of Creedance Clearwater Revival fame), who was at one point sued by the owners of his back-catalogue for writing a new song that sounded too much like himself.
posted by onshi at 4:25 PM on April 13, 2008

Urp, I should have provided more detail above. The case in question was Fogerty v. Fantasy, 510 U.S. 517 (1994).
posted by onshi at 4:30 PM on April 13, 2008

There's been some work on this in the field of ethnomusicology. Try some of these:

Demers, Joanna Teresa. 2006. Steal This Music : How Intellectual Property Law Affects Musical Creativity. Athens : University of Georgia Press

McCann, Anthony. 2001. "All That Is Not Given Is Lost: Irish Traditional Music, Copyright, and Common Property" in Ethnomusicology 45:1, pp. 89-106

Seeger, Anthony. 1992. "Ethnomusicology and Music Law" in Ethnomusicology 36:2, pp. 345-359

Taylor, Timothy. 1997. Global Pop: World Music, World Markets. New York: Routledge

And here's one that's philosophically fascinating that talks about Herbie Hancock's appropriation of pygmy music in an album without paying royalties:
Feld, Steven. 1996. "Pygmy POP: A Geneology of Schizophonic Mimesis" in Yearbook for Traditional Music 28, pp. 1-35

and a similar one:
Meintjies, Louise. 1990. "Paul Simon's Graceland, South Africa, and the Mediation of Musical Meaning" in Ethnomusicology 34:1, pp. 37-73

Have fun and good luck!
posted by cachondeo45 at 4:42 PM on April 13, 2008

oh and one other source.
posted by cachondeo45 at 4:45 PM on April 13, 2008

A couple of responses;

1) Benjamin, Lessig, Attali, Seeger, Meintjes, Taylor, Feld, & Demers are already on the reading list. Three of those people are close friends of mine. A fourth is a mentor, in fact. I'm very specifically looking for recommendations that cover concrete cases in the digital domain specifically. And I am looking most especially for cases and conflicts that are significantly *archived* in the digital domain.

2) toomuchpete, thanks for the snark, but I would insist forcefully that I am specifically **not*** teaching "a course on copyright" or "intellectual property" with a "kitschy" name at all; in fact, I am trying to thing *outside* the copyright and IP boxes specifically to frame the question of "cultural ownership" and "heritage" and to undermine the "it's all just IP law" perspective you represent, because no it is not. (Yes, Faye Ginsburg is also already on the reading list.) That means looking at the concept of copyright, indeed. But it means looking at it from a cultural rather than a legal perspective. So, for example, a stirring essay in defense of "illegal downloading" by college students written by a musician would be deeply interesting to me, or a chronicle of a movement among downloaders to protect their anonymity or the legal defensibility of their actions, or the formulation of IP policies by a national government in defiance of international or corporate pressures to do something else.

Fogerty and Arnstein are great cases for some of the points. But cachondeo45 is on the right track with the cross-cultural and international examples, except that I want those kinds of cases unfolding specifically in the digital domain (most of the ones he cites don't unfold primarily as digital domain cases). I also know about the indigenous IP website (again, folks I know and work with there). I could post my existing reading list, but cachondeo has basically done so!

Thanks for all the thoughts and the suggestions, everyone!
posted by fourcheesemac at 5:26 PM on April 13, 2008

To put it differently, I'm looking for "best of the web" resources -- things that MeFites might know about that are *not* necessarily already in the academic standard literature on this topic
posted by fourcheesemac at 5:29 PM on April 13, 2008

The Lethem is a great suggestion by the way; very helpful and thank you umbu! I did not know that article!
posted by fourcheesemac at 5:32 PM on April 13, 2008

here's an offbeat one..

the Butthole Surfers vs Touch & Go Records
posted by citron at 6:42 PM on April 13, 2008

also, sampling in hip hop.. probably a lot of interesting material. for instance on youtube there are people posting videos complaining about Timbaland sampling obscure Middle Eastern music for some of his tracks, and a song (a pretty good one) by singer Truth Hurts called "addictive" I believe had to be completely withdrawn from circulation/promotion due to the sample (that wasn't a Tim track). I know prev to this I didn't read your question about the digital domain, but in this case you're seeing people across the net who can dig up anything, and communicate right back via youtube about this stuff. One example of that was a European guy who made a track.. I think something to do with video game/MIDI type music and then claimed Timbaland stole it for part of one of his own tracks. Sorry can't be more specific on that.

Another recent case would be the huuuuuge hit "Love in this Club" (Usher) produced by Polow da Don where a middle school age kid started posting videos showing how the key synth line in the song was astonishingly similar to a preset track in Garageband software. Googling around should find you the videos on that. It pretty much just blew up last week and Polow had to respond to it..
posted by citron at 6:48 PM on April 13, 2008

Well, if you are still reading this and want to give your students some things to read about "Intellectual Property norms that exist outside of copyright" feel free to drop me a line and I'll put you in touch with someone who teaches and writes on exactly that topic. His name is Chris Sprigman and he's a UVA law professor whose work lately has focused on fashion design and stand-up comedy -- two creative endeavors that are not covered by copyright law (the former because of a legal quirk, the latter for practical reasons). Sprigman examines how those communities enforce intellectual property-like norms without using or having traditional legal copyright protection. It's not music but it sounds like it might be an interesting aside for your students and he tells great stories -- and who doesn't want to spend one class talking about fashion and comedy?

Of course, if you know Lessig you may already know Sprigman. Hell you may even be him.
posted by The Bellman at 7:34 PM on April 13, 2008

Bellman, thanks. No I am not Sprigman, nor do I know Lessig (to make the matching game easier!). I will look into his work, which sounds fascinating. I am aware of a number of mostly younger scholars doing interesting work in literary studies and cinema studies, as well as in indigenous cultural rights contexts where my interests are centered. A number of anthropologists are thinking through traditional and non-western models of cultural ownership (and indeed, emergent ones on the digital frontier) as these interact with the global IP legal and policy order. A quick overview of the conversation around indigenous issues is Michael Brown's (somewhat controversial) book *Who Owns Native Culture?*

and citron, thank you for an excellent lead on a case I had no knowledge of, exactly the sort of thing I want to find on the "case study" front!
posted by fourcheesemac at 7:50 PM on April 13, 2008

And to be clear also: music is the focus for pragmatic reasons, to give specific substance to the arguments, but I am interested in the broader questions concerning "ownership" as a cultural system. I am interested in the *idea* of owning "ideas," in general, and the way cultural models of ownership interact with the development of social institutions and the arts in particular (thus Berger's *Ways of Seeing* is one of our first readings, as is the first chapter of Attali's *Noise,* discussed above, and a chapter from Boas' *Primitive Art*). I'm also looking at musical "healing" rituals and the ownership of "spiritual" ideas in the global market for culture (for example, Kapchan's work on sacred music festivals). Perhaps this helps refine the brainstorming process -- the idea is to use music as a way to make these ideas real for students who "get" the stakes in music ownership not the least because they are caught up in it with their own cultural friction with the music industries. So I want resources to explain that friction to them (and to me) in cultural and political terms, not just technical legal or technological terms.
posted by fourcheesemac at 7:59 PM on April 13, 2008

and again, thanks citron for more good stuff
posted by fourcheesemac at 8:02 PM on April 13, 2008 [1 favorite]

In the early days of player pianos there were disputes over intellectual property in the piano rolls that made the music play. See White-Smith Music Pub. Co. v. Apollo Co., 209 U.S. 1 (1908) (and wikipedia about the case). It might be a useful starting point for the evolution of the ideas and definitions of ownership and music.
posted by dilettante at 8:21 PM on April 13, 2008

These are all film/video related and therefore possibly outside your area of interest, but:

There were extensive issues with clearances and licensing that repeatedly delayed VH1's Badfinger documentary, detailed by writer Dan Matovina. The documentary almost didn't happen, and I remember being particularly dismayed to learn this considering it was a documentary and therefore I would think a fair use case would be relatively strong. (Sure, it's commercial, but it's also reporting/scholarship. Says me.)

There have been lengthy delays in getting old TV shows released because of music clearnace issues - notably WKRP, thirtysomething, and Northern Exposure. I've seen complaints on Amazon's review pages about the WKRP DVD release, along the lines of "don't buy these - they ruined some scenes by substituting horrible stupid generic music", and I've seen fans of thirtysomething waiting and waiting for a DVD release and meanwhile trading tapes because there's no DVD to buy. (Some Northern Exposure fans were as upset about the NE music substitutions as the KRP fans were about theirs.)

From a cultural and historical viewpoint, I was stunned to learn about the copyright issues that kept Eyes on the Prize out of public reach for years. Documented in Wired and The Washington Post, among others.

Finally, before the film preservation movement really got going, many films disintegrated in storage. Film lovers (often industry veterans) who clandestinely stored prints themselves risked prosecution (IIRC), yet some restored films only exist today because of their actions.

Sorry none of these examples are music-only. Hope they're helpful anyway.

On preview - since you're interested in the concepts of ownership of ideas, social institutions, and the arts, it might be interesting to throw in some discussion of the conflicts around public photography these days, and the hyperexpansion of trademark ideas to the point where fimmakers are pressured to remove landmark buildings from the backgrounds of films.
posted by kristi at 8:36 PM on April 13, 2008

I am interested in the broader questions concerning "ownership" as a cultural system.

I have a friend looking at this from a literary point of view, looking at oral-culture influences on Herman Melville via sailors' and missionaries' narratives. He repurposed a ton of heard, shared material in Moby-Dick, Typee and other stories. There's a forthcoming book on how all this relates to the intellectual-property debate and whether books like Melville's would even be possible given today's restrictions on use - she ends up delving into musical influence/copyright and a number of related topics. It may not be published in time for your class but some stuff should appear in a journal article here soon. Email me if you want an update when stuff is available. May be a bit off your topic but she ended up going down the rabbit hole in the same direction.
posted by Miko at 9:19 PM on April 13, 2008

So obvious I'm hesitant to mention it at all: Courtney Love's 2000 speech on digital downloading
posted by RogerB at 9:24 PM on April 13, 2008

Awesome! Thanks Miho, RogerB (definitely using that!), and Kristi! And everyone else too!
posted by fourcheesemac at 3:19 AM on April 14, 2008

fourcheesemac - you're welcome! :)

[Courtney Love rules, yall]
posted by citron at 6:22 PM on April 14, 2008

Mattel v. MCA Records. Maybe not groundbreaking as a matter of law, nor exactly on point w/r/t music-as-property, but still an interesting intersection of music and intellectual property law. Plus, Kozinski's awesome.
posted by ewiar at 11:30 AM on April 23, 2008